Attorney General (AG) Basil Williams and his predecessor Anil Nandlall yesterday squared-off in the High Court, when the former signaled his readiness to present submissions to Justice Gino Persaud as to why the court has no jurisdiction to hear the challenge to the restructuring and activation of new local government areas (LGAs).
When the matter was called yesterday afternoon, Williams, who himself made an appearance, seemed ready to address the court on the state’s application, which argues that it does not have jurisdiction to hear the application for judicial review that was filed on behalf of Guyana Elections Commission (GECOM) Com-missioner and PPP member Bibi Shadick.
But Nandlall, who is representing Shadick, was quick to point out that the court in the first place did not have the jurisdiction to hear the challenge mounted by the AG, whom he said had already subjected himself to the court’s jurisdiction when the matter was called on September 14th. For this reason, Nandlall is arguing that the state cannot now come to advance that the court has no jurisdiction to hear his client’s case.
He said that in accordance with law, such an application has to be made at the outset of the case and not after it had already commenced. With case management conferences having already been held and the timeline for filing submissions and hearing dates set, Nandlall argued that the case had already effectively started.
Interjecting, as they each did periodically while the other spoke, however, the Attorney General was quick to rise to his feet and he pointed out that in accordance with Part 9.01 (1) of the Civil Procedure Rules (CPR) 2016, the state had lawfully made its application challenging the court’s jurisdiction.
To this end, the AG told Justice Persaud that the state was ready to proceed with its submission as to why the court had no jurisdiction, and that his opponent can address whatever issues he so desires by way of an affidavit in reply.
“He [Nandlall] has to file his response, which he has not done,” Williams noted.
“What am I responding to?” Nandlall rose to his feet enquire from the AG.
As far as Nandlall was concerned, since an application questioning the court’s jurisdiction was not properly before the court, and therefore did not even amount to the existence of such an application, there was nothing for him to respond to.
Nandlall’s unwavering position was that while Part 9.01 (1) of the CPR provided for the mounting of challenges to the court’s jurisdiction, such an application had to be made at the beginning of the case and not after a party had already accepted the jurisdiction of the court to hear a matter.
In this regard, he pointed out that at the first hearing weeks ago, Solicitor-General Kim Kyte-Thomas, who had participated in the case management conference, could have raised jurisdictional issues but she did not. He argued that they did not as they [the state] had accepted the jurisdiction of the court.
It was against this background that Nandlall made it clear, “I will not file any response.”
Justice Persaud, who shared the position of the AG that the application had to nonetheless be heard in keeping with the law, pointed out to Nandlall that the court would therefore need to have his responses to Williams’ submission on the issue.
The judge could not, however, persuade Nandlall, who remained resolute, declaring, “I will not be filing a reply.”
The state, in its notice of application to challenge the court’s jurisdiction, is arguing that the court would only have jurisdiction to hear the matter after the November 12th local government polls would have been held and that this would have to be done by way of an elections petition.
Williams is contending that because Shadick’s challenge raises allegations of irregularities and illegalities, thereby questioning the validity of the elections, that challenge can only be mounted through an elections petition given that the election process began since July 18th.
Nomination Day for contesting parties was last Friday.
Conforming to a new timetable set by the court to hear the jurisdiction issue, however, Nandlall has indicated that he will comply with the court’s order of filing legal submissions to whatever submissions Williams has to file by October 5th.
The former AG, however, made it clear that it would not be an affidavit in reply, but rather legal submissions arguing why the court has no jurisdiction to hear the jurisdiction issue raised by Williams, as well as the baseless nature of the state’s application.
Arguing that there is not much time remaining before the November 12th polls, before which time Shadick is seeking to have Communities Minister Ronald Bulkan rectify alleged violations, Nandlall said the court could ill-afford long adjournments.
As they continued their heated exchange, Williams told Nandlall that if he had been so concerned about time he would have already filed his reply to the state’s application.
The matter was adjourned until October 10th at 9 am.
Shadick is challenging the activation of seven new LGAs and the restructuring of 14 others by Bulkan and Chief Election Officer (CEO) Keith Lowenfield.
She is contending that activation of the new LGAs and restructuring of the 14 others effected collectively by Bulkan and Lowenfield are not only unlawful but would render all voting in those LGAs at the upcoming polls void. Shadick is asking the court for orders quashing decisions made by both respondents and ordering them to rectify their violations.
Nandlall is arguing that Bulkan has failed to comply with statutory provisions for the holding of the elections, which in turn can result in a court setting the entire elections aside for being “null and void, unlawful and illegal.”
He said that while statute prescribes certain responsibilities for both the Minister and CEO to discharge in relation to local government elections, Bulkan failed/omitted to follow procedures stipulated for the creation of new Neighbourhood Democratic Councils (NDCs), and the creation of new seats in existing LGAs as well as seats in the new NDCs in the manner that the law prescribes.
Shadick is contending that the Minister altered existing boundaries within existing LGAs without any attempt to consult with important stakeholders, including the electors or the political parties. “We believe that such a process must involve consulting with the relevant stakeholders,” Nandlall has said.
The applicant is also arguing that the CEO has no power to fix boundaries for the new NDCs created by the Minister. This, she says, is a power of the Minister himself.
Bulkan has since said that he has acted within the ambit of the law and dismissed the case as baseless.
The new NDCs are: Moruka/Phoenix Park; Kitty/ Providence; Nile/Cozier; Lamaha/Yarowkabra; Hauraruni/Yarowkabra; Plegt Anker/Kortberaad; and Wyburg/Caracas. The areas that were restructured were Rose Hall; Evergreen/Paradise; Aberdeen/Zorg-en-Vlygt; Malgre Tout/Meerzorgen; La Grange/Nismes; Toevlugt/Patentia; Caledonia/Good Success; Woodlands/Farm; Mahaicony/Abary; Zeelust/Rosignol; Blairmont/Gelderland; Ordnance Fortlands/No. 38; Adventure/Bushlot; and No. 52 – 74.
In addition to Williams, the state is being represented by Kyte-Thomas and Ayanna McCalman.
