Injunction filed in local government election lawsuit

AN emergency application has been filed for injunctive relief as part of the legal challenge of the Government’s decision to proclaim parts of the recently passed Local Government Reform Act.

The act allows the delaying of local government elections by a year, which the government has said it wants to do.

On Monday, attorneys for activist Ravi Balgobin-Maharaj filed the application in the High Court. It seeks to restrain all councillors and aldermen elected in the December 2, 2019, local government election from acting beyond December 3, 2022.

This is until Balgobin-Maharaj’s main challenge has been determined.

In the alternative, Balgobin-Maharaj wants the offices of all councillors and aldermen declared vacant from December 4.

He also wants the judge hearing his main challenge to vary her previous case-management orders so that she can rule before December 3.

On Friday, Justice Jacqueline Wilson, who has been assigned Balgobin-Maharaj’s case, set January 9 and 10 as trial dates.

Attorneys for both sides agreed to have the matter heard as a rolled-up hearing, meaning the judge will hear the judicial review application and the substantive lawsuit as one.

At that hearing, one of Balgobin-Maharaj’s attorneys, Jayanti Lutchmedial, raised the issue of seeking injunctive relief, since they wanted an earlier hearing, before December 3. She said beyond that date, there may be people holding office without lawful authority and being paid out of the public purse. She told the judge it was hoped a decision would be given before the end of the local government term on December 3.

At the hearing, lead attorney for the State, Douglas Mendes, SC, said their side would need time to file affidavits and a response to the claim, telling the court he did not think a catastrophe would take place if, beyond December 3, people continued in office. He also pointed out that (under the previous law) the outer limit by when the election could be called was March 3, 2023. Mendes urged the judge not to sacrifice accuracy for speed.

In the injunction application, Balgobin-Maharaj says, “Should the councillors and aldermen be permitted to conduct their functions in circumstances where they might be occupying their offices unlawfully and without legitimate authority, it would be an affront to the rule of law and contrary to the democratic principles contained in the Constitution.

“It is decidedly not in the public interest for such a state of affairs to be permitted. The court, as the guardian of the Constitution and the last bastion and protector of the rule of law, ought not to allow such a risk to occur especially in circumstances where granting the injunction will not cause any prejudice or injustice. The court has an inherent and overriding duty to uphold and vindicate the rule of law.”

He cited some of his previous cases where strict timelines were set for the hearing of matters, including some before the Privy Council, “so that judgment could be delivered on time.”

Balgobin-Maharaj, a voter in the Maracas/Santa Margarita electoral district, said he was aggrieved by the decision taken by Cabinet and announced recently by Local Government and Rural Development Minister Faris Al-Rawi.

The law passed on June 14 with a simple majority in Parliament. The Opposition UNC has called on President Paula-Mae Weekes not to proclaim the legislation, which will extend the terms of the current local government representatives and delay the election.

His lawsuit contends the decision of the Cabinet was unauthorised, contrary to law and an abuse of power to “retrospectively apply an amendment to the law to increase the terms of councillors which ultimately delays the local government elections.”

The activist wants declarations to put a stop to the alleged government plan to postpone the elections, and said any attempt to delay them by retrospectively applying the amendments to the Municipal Corporations Act would be a fraud committed on the electorate, in bad faith, and would amount to improper use of the legislation.

Balgobin-Maharaj is asking the court to quash the declaration that local government elections are now due between December 4, 2023, and March 4, 2024, and the decision to extend the term of office of all councillors and aldermen.

“The decision also denies the electorate...their legitimate expectation that the councillors they elected in 2019 would only be in office for a three-year term.

“Furthermore, those persons serving on the council have also been denied their legitimate expectation that they would only serve a three-year term.”

The lawsuit alleged the action of the minister and Cabinet “has given rise to the understandable perception that the Government is abusing its power to avoid and/or delay the local government elections in light of its poor ratings.”

Balgobin-Maharaj is also represented by Anand Ramlogan, SC, Renuka Rambhajan, Robert Abdool-Mitchell, Natasha Bisram, and Vishaal Siewsaran.