An unlawful appointment doesn’t necessarily make that appointee’s actions unlawful
Jun 29, 2016 , http://www.kaieteurnewsonline....es-actions-unlawful/
There is an interesting fact that is often overlooked whenever there are discussions about the former Town Clerk, Carol Sooba. It is often assumed that she owed her employment in the City Hall to the People’s Progressive Party Civic government.
This is, of course, far from the truth. Before she was appointed as Town Clerk, Carol Sooba was an employee in the legal department of the municipality. She was employed by the PNC-GGG-dominated City Council.
The very persons who turned against her had worked with her for a number of years. They were the ones who were responsible for her recruitment, not the PPPC.
She was eventually appointed by the then Minister of Local Government, as the Town Clerk, a decision that was opposed by the Council. The present Town Clerk challenged this appointment in court on the grounds that the process was not fair.
The then Chief Justice, Ian Chang, ruled that her appointment was illegal, but on different grounds to the challenge. He argued that the Minister of Local Government did not have the power to appoint the Town Clerk, since this was the rightful duty of the Local Government Commission, of which none existed at the time.
He went on to adduce the de facto/ de jure distinction. He ruled that Carol Sooba should remain in office since she was the de facto Town Clerk. Her appointment would either have to be confirmed or dismissed by the Local Government Commission.
This de facto/de jure distinction was also invoked in the ruling in the Esther Perreira case, in which the results of the 1997 elections were challenged. The court did not expel the PPPC from office. It ruled that the PPP should remain in office, despite the election results being vitiated.
The Hoyte administration had stayed out of parliament during the controversy. It eventually crawled back in and Hoyte justified his actions on the grounds that despite the ruling, the PPP remained the de facto government of the day.
But let us return to the controversy over the appointment of the old Town Clerk?
When the new administration came in, the Minister of Communities revoked the appointment of Carol Sooba and appointed Royston King as Town Clerk.
But what about Justice Chang’s ruling that only the Local Government Commission can appoint the Town Clerk? The question as to whether the Minister of Communities can lawfully appoint a Town Clerk will no doubt feature whenever the legal challenge brought by Carol Sooba against her dismissal is heard. The court is usually guided by precedent, so it would be interesting to see how the court will rule.
If the court rules that the Minister has no authority to appoint the Town Clerk, this will raise the question as to what happens to all the agreements signed in the name of the Town Clerk.
Will these agreements be legal?
The de facto/ de jure principle will ensure that even if it is held that the appointment of the Town Clerk was illegal, this does not necessarily make unlawful any agreement that he would have signed as Town Clerk.
This issue is raised in the context of the examination being carried out by the government on the legality of the deal. The government really has no role in this matter. It is for the citizens, not government, to challenge the legality of the parking meter agreement. But how can the citizens challenge the agreement when they have not seen it?
Citizens therefore should not expect the government to save them from this parking meter burden. The government is not going to save them.
The government has the political clout to overturn this agreement. The ruling parties can order their councilors to vote against the agreement, but they are not doing this. The government’s response to the parking meter controversy has been muted. The government will not interfere; it will not intervene. It has a wired notion of unity
It is left to a citizen of Georgetown to file an injunction challenging the imposition of parking meters. But how can grounds be adduced in challenging the agreement when the agreement is not public.
