The High Court has dismissed an application filed by the Georgetown Mayor and City Council (M&CC) challenging the legality of the Local Government Commission.
On March 3, 2022, the M&CC filed a Fixed Date Application seeking several declarations and orders against the Attorney General, Anil Nandlall and the Local Government Commission. The action was brought by Councillor and Mayor of Georgetown, Ubraj Narine, seeking the following declarations and orders:
i. A declaration that Articles 75 of the Constitution of Guyana and 78A of the Constitution of Guyana are irreconcilably inconsistent.
ii. A declaration that Article 75 of the Constitution of Guyana is the leading provision and should prevail over Article 78A of the Constitution.
iii. A declaration that Article 78A of the Constitution of Guyana is inconsistent with Article 12 of the Constitution of Guyana.
iv. A declaration that Article 78A of the Constitution of Guyana is inconsistent with Articles 71 and 74 contained in Chapter VII of the Constitution of Guyana.
v. A declaration that establishment of the Local Government Commission by Parliament by the Local Government Commission Act #18 of 2013 is contrary to Article 75 of the Constitution of Guyana and is therefore void to the extent of its inconsistency.
vi. Alternatively, Section 13(1) & (2) of the Local Government Commission Act are contrary to Article 75 of the Constitution of Guyana and are therefore void to the extent of its inconsistency.
vii. A declaration that Sections 118 & 119 of the Municipal and District Councils Act as amended by the Municipal and District Councils Act #15 of 2013 is contrary to Article 75 of the Constitution and are therefore void to the extent of their inconsistency.
The fundamental issue raised by the M&CC in its Fixed Date Application is that the establishment of a Local Government Commission, by Article 78A of the Constitution of the Co-operative Republic of Guyana, and the vesting of it with a power to regulate and staff Local Government Organs, and power to resolve disputes within and between Local Democratic Organs collide with and is inconsistent with Article 75 of the Constitution which provides that Local Democratic Organs shall be autonomous.
The matter came up for hearing on May 23, 2022, before Justice Navindra Singh. who ordered that submissions be filed. The Attorney General, Anil Nandlall, in his submissions contended that it was always the intent of Parliament to repose authority in a Local Government Commission to deal with all matters relating to the regulation and staffing of local government organs and the power to exercise disciplinary control over local government officers. This, he argued, is evidenced in Sections 13 and 120 of the Local Government Commission Act 2013 (No. 18 of 2013) Sections 97, 114 (now repealed) and 118 of the Municipal and District Councils Act.
The legislature in their wisdom to alleviate any ambiguity regarding their intendment of the role and functions of the Commission went a step further and enacted the Local Government Commission after the Municipal and District Councils Act, Cap 28:01, was updated in 2012. The Constitution itself is replete with examples of one organ that is ostensibly autonomous and independent being staffed by another organ and its functions being in some way regulated by another agency. This holds true for many statutory agencies as well.
On December 9, 2022, Justice Navindra Singh dismissed the Application with cost awarded in the sum of $200,000 to the Attorney General and the Local Government Commission.
The Attorney General was represented by himself, Solicitor General, Nigel Hawke, and Saabira Ali Hydaralie, State Counsel. Brendan Glassford represented the Mayor and Councillors of the City of Georgetown. The Local Government Commission was unrepresented.
