High Court dismisses Application by M&CC challenging the legality of the Local Government Commission

On the 3^rd day of March 2022, the Mayor and Councillors of the City of Georgetown filed a Fixed Date Application seeking several declarations and orders against the Attorney General and the Local Government Commission. The action was brought by Councillor and Mayor of Georgetown seeking the following declarations and orders:

1. A declaration that Articles 75 of the Constitution of Guyana and 78Aof the Constitution of Guyana are irreconcilably inconsistent with each other.
2. A declaration that Article 75of the Constitution of Guyana is the leading provision and should prevail over Article 78A of the Constitution.
3. A declaration that Article 78Aof the Constitution of Guyana is inconsistent with Article 12 of the Constitution of Guyana.
4. A declaration that Article 78A of the Constitution of Guyana is inconsistent with Articles 71 and 74contained in Chapter VII of the Constitution of Guyana.

• A declaration that establishment of the Local Government Commission by Parliament by the Local Government Commission Act #18 of 2013 is contrary to Article 75of the Constitution of Guyana and are therefore void to the extent of its inconsistency.
• Alternatively, that 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.
• A declaration that Section 118 & 119of 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 a 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 the 23^rd day of May 2022, before the Honourable Mr. Justice Navindra Singh who ordered that submissions be filed. The Honourable Attorney General, 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 as 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 as to 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, as well as its functions being in some way regulated by another agency. This holds true for many statutory agencies as well.

On the 9^th day of December, 2022, the Honourable Justice Navindra Singh dismissed the Application with cost awarded in the sum of $200,000.00 to the Attorney General and the Local Government Commission.

The Attorney General was represented by Mr. Mohabir Anil Nandlall SC, MP, Mr. Nigel Hawke, Solicitor General and Ms. Saabira Ali Hydaralie, State Counsel.

Mr. Brendan Glassford represented the Mayor and Councillors of the City of Georgetown.

The Local Government Commission was unrepresented.