Derek Achong

High Court Judge Jacque­line Wil­son is sched­uled to hear sub­mis­sions in a law­suit over the Gov­ern­ment’s move to ex­tend the term of lo­cal gov­ern­ment rep­re­sen­ta­tives and ef­fec­tive­ly de­fer the up­com­ing Lo­cal Gov­ern­ment elec­tions by a year in Jan­u­ary. 

Wil­son re­served Jan­u­ary 9 and 10 to hear the oral sub­mis­sions in the case af­ter set­ting time­lines for the fil­ing of writ­ten sub­mis­sions and ev­i­dence dur­ing a hear­ing on Fri­day af­ter­noon. 

While mem­bers of the me­dia were not grant­ed ac­cess to the hear­ing, which was held in cham­ber, Guardian Me­dia un­der­stands that po­lit­i­cal ac­tivist Ravi Bal­go­b­in Ma­haraj’s lawyer, Jayan­ti Lutch­me­di­al, ini­tial­ly re­quest­ed that the case be heard and de­ter­mined be­fore the un­ex­tend­ed term of lo­cal gov­ern­ment rep­re­sen­ta­tives come to an end on De­cem­ber 3. 

Sources said that Se­nior Coun­sel Dou­glas Mendes, who led the le­gal team for the Cab­i­net and Rur­al De­vel­op­ment and Lo­cal Gov­ern­ment Min­is­ter Faris Al-Rawi, stat­ed that the case should be hasti­ly de­cid­ed, as there would be no “cat­a­stro­phe” if the elect­ed rep­re­sen­ta­tives stayed in of­fice un­til the orig­i­nal dead­line for the elec­tion in March next year. 

Jus­tice Wil­son even­tu­al­ly gave the par­ties dead­lines for mak­ing their fil­ings in De­cem­ber and set the dates for oral sub­mis­sions. 

Guardian Me­dia un­der­stands that the par­ties did agree that the case should be de­cid­ed in a rolled-up hear­ing in which Jus­tice Wil­son would de­ter­mine whether he should be grant­ed leave to pur­sue the case and the sub­stan­tive is­sues raised by him si­mul­ta­ne­ous­ly. 

In typ­i­cal ju­di­cial re­view law­suits, judges de­cide whether ap­pli­cants have pre­sent­ed a case with a re­al­is­tic prospect of suc­cess be­fore al­low­ing the case to pro­ceed to tri­al. 

In his law­suit, Ma­haraj claimed that he be­came con­cerned af­ter Al-Rawi host­ed a press con­fer­ence and an­nounced the Gov­ern­ment’s in­ten­tion to pro­claim cer­tain sec­tions of the Mis­cel­la­neous Pro­vi­sions (Lo­cal Gov­ern­ment Re­form) Act, which was passed by a sim­ple ma­jor­i­ty in Par­lia­ment with­out Op­po­si­tion sup­port ear­ly this year. 

The sec­tions of the leg­is­la­tion iden­ti­fied by Al-Rawi seek to in­crease the terms of coun­cil­lors from three years to four years. It could ef­fec­tive­ly cause the de­fer­ral of the elec­tion, which was due be­tween De­cem­ber this year and March next year. 

In the law­suit, Ma­haraj’s lawyers are claim­ing that the leg­is­la­tion should not have a ret­ro­spec­tive ef­fect on coun­cil­lors that were elect­ed in late 2019. 

“The pur­port­ed ex­ten­sion of their term of of­fice by one year is based on an er­ror of law as this can on­ly be law­ful­ly ac­com­plished if the amend­ment was clear­ly and un­am­bigu­ous­ly ret­ro­spec­tive on the ex­pressed par­lia­men­tary un­der­stand­ing that the ef­fect was to in­crease the term lim­its of the Coun­cil­lors and Al­der­men, the con­se­quence of which, was to post­pone the lo­cal gov­ern­ment elec­tions for one year,” they said. 

Ma­haraj’s at­tor­neys ad­mit­ted that lo­cal gov­ern­ment elec­tions were de­ferred un­der the tenure of for­mer prime min­is­ter Patrick Man­ning but claimed that such ac­tion was not chal­lenged as amend­ments to the leg­is­la­tion in­di­cat­ing the clear in­ten­tion to do so were passed by Par­lia­ment. 

“Whilst the Man­ning ad­min­is­tra­tion took the bull by the horns and square­ly pro­mot­ed and con­front­ed the true pol­i­cy, pur­port and in­tent of these amend­ments, the present gov­ern­ment is try­ing to se­cure an un­law­ful post­pone­ment of the Lo­cal Gov­ern­ment Elec­tions through the back­door by sur­rep­ti­tious­ly pur­port­ing to in­crease the term of of­fice of Coun­cil­lors and Al­der­men by one year there­by in­di­rect­ly al­low­ing the Gov­ern­ment to post­pone the elec­tions by one year to avoid fac­ing the elec­torate,” they said. 

They claimed that the move to pro­claim the leg­is­la­tion was un­law­ful and un­con­sti­tu­tion­al, as it al­leged­ly in­fringed the rule of law and the vot­ing rights of cit­i­zens. 

In his ju­di­cial re­view ap­pli­ca­tion, Ma­haraj’s lawyers claimed that the case had to be ex­pe­dit­ed to en­sure that if suc­cess­ful, the elec­tion is held be­fore the end of March and in­cum­bent lo­cal gov­ern­ment rep­re­sen­ta­tives do not go past their orig­i­nal­ly elect­ed terms. 

They al­so sought to sum­marise the Gov­ern­ment’s re­sponse to their le­gal threat, which led to the fil­ing of the case. 

In the re­sponse, the Of­fice of the Chief State So­lic­i­tor de­nied that the leg­is­la­tion had a ret­ro­spec­tive ef­fect, as it claimed that it op­er­at­ed prospec­tive­ly by ex­tend­ing ex­ist­ing terms of of­fice. 

It al­so claimed that the Gov­ern­ment nev­er sought to lim­it its dis­cre­tion on procla­ma­tion in the leg­is­la­tion and that Ma­haraj did not have a le­git­i­mate ex­pec­ta­tion that the procla­ma­tion would be de­layed. 

“We re­ject the as­ser­tion, ad­vanced with­out au­thor­i­ty, that a 4-year term of of­fice is some­how un­de­mo­c­ra­t­ic,” the re­sponse stat­ed. 

Through the law­suit, Ma­haraj is seek­ing a se­ries of de­c­la­ra­tions against the move and an or­der quash­ing it.

Ma­haraj is al­so be­ing rep­re­sent­ed by Anand Ram­lo­gan, SC, Renu­ka Ramb­ha­jan, Robert Ab­dool-Mitchell, Natasha Bis­ram and Vishaal Siewsaran. Rishi Dass is ap­pear­ing along­side Mendes for the State.