- but remains Acting Town Clerk
ACTING Chief Justice, Mr. Ian Chang, S.C., yesterday, quashed Carol Sooba’s appointment as Town Clerk of the Georgetown Municipality.
And, according to the judge, she is now an Acting Town Clerk of the Municipality. Justice Chang ruled that the Local Government Minister did not have the power to appoint Sooba and therefore the appointment was illegal.
The Chief Justice was delivering his decision in the High Court in relation to an application from Public Relations Officer Royston King for Writs or Orders of Certiorari, calling on Minister of Local Government Ganga Persaud to show cause why his decision to appoint Carol Sooba as Town Clerk in preference to other candidates who were more qualified for the job, should not be quashed.
The respondent Norman Whittaker, minister within the Ministry of Local Government with specific responsibility for all municipalities, including the Georgetown Mayor and City Council, deposed that he was personally involved in and had personal knowledge of all matters, processes and procedures which led to and touched on and concerned the appointment of Carol Sooba to the position of Town Clerk for the Mayor and City Council of Georgetown, having acted from July 2012 to December 2013 – to the satisfaction of the Minister of Local Government.
She was able to expose many corrupt and undesirable practices conducted in the course of the administration of the City Council and had caused remedial and policy changes to be made.
But in coming to his decision the Acting Chief Justice noted that under Section 95 of the Municipal and District Councils Act, Chapter 28:01 provides:
“(1) There shall be a Local Government Service Commission consisting of a chairman, a deputy chairman and three other members; and the Commission shall have such functions as are vested in it by this Act or any other law.”
“(2) In the exercise of its functions, the Commission shall not be subject to the direction or control of any authority.
Section 96 provides:
“The members of the Commission shall be appointed by the Prime Minister from amongst such persons as appear to him to be suitably qualified and the Prime Minister shall appoint one of its number to be chairman and another to be deputy chairman.
According to the Chief Justice, it is clear that Section 95 establishes as a statutory body a Local Government Service Commission. Since the establishment of the said Commission must necessarily precede the appointment of its members, the fact that the appointment to the Commission has not been made by the Prime Minister (now the President) under Section 96 does not at all mean that there is not in legal existence a Local Government Service Commission.
Since the office of Town Clerk is a local government office the emoluments of which exceeds $18,000 per annum, it is the Local Government Service Commission which has the power to appoint a person to that office. Once Section 95 has come into operation the power of the minister to appoint any Local Government Officer to any office, the emoluments of which exceed $18, 000 per annum, immediately ceases since such a power immediately vests in the said Commission.
Looking at the Act on the Basis of the 1973 and 2011 Revised Editions of Laws of Guyana without regard to the words in brackets appended to the long title to the Act, the origin of which is unknown, the Court makes the finding that Section 95 of the Act was in operation and therefore the Local Government Service Commission was in existence at the time the Minister purported to appoint Carol Sooba as Town Clerk.
Therefore, under Section 326 (4), the Minister’s power to perform the functions mentioned in section 116 (1) had ended at that time.
It is the finding of this court that the Minister acted ultra vires the provisions of the Municipal and District Council’s Act , Chapter 28:01 and his decision to appoint Carol Sooba as Town clerk must be quashed. However, this does not prevent Carol Sooba from continuing to perform the functions of Town Clerk as the de facto Town Clerk.
It needs a direct challenge by quo warranto to the authority of Carol Sooba to bring her de facto authority to an end.
The decision of the Minister of Local Government appointing Carol Sooba as Town Clerk for the Municipality of Georgetown is quashed by Certiorari as being ultra vires the provisions of the Municipal and District Council Act Chapter 28:01, Order or Rule Nisi of Certiorari made on the 13th December 2013 made absolute. No order as to costs was made.
(By George Barclay )