Appeal Court: Driving demerit-points law poorly drafted

THE Court of Appeal has upheld the ruling of a High Court judge that certain sections of the Motor Vehicles and Road Traffic Act’s demerit-point system were poorly drafted.

In a decision delivered on Thursday, Justices of Appeal Alice Yorke-Soo Hon, Peter Rajkumar and Ronnie Boodoosingh ruled that the 2017 amendment to the act “was deficient” by not stating precisely the forum for appeals to be made.

In February, Justice Frank Seepersad dismissed the judicial review claim of a suspended driver who challenged the legality of the system.

Zachary De Silva, whose driver’s permit was suspended for six months after he allegedly amassed ten points, appealed Seepersad’s ruling.

Seepersad had held that an appeal of a decision of the transport commissioner to suspend a driver’s licence must be done at the Appeal Court and not the High Court.

In their unanimous decision, the Court of Appeal agreed with Seepersad.

“Given the historical context, the court of competent jurisdiction for an appeal involving the imposition of a penalty can only be the Court of Appeal unless the relevant statute states it is to be some other body,” Boodoosingh said in the decision.

De Silva received a fixed-date penalty notice in May 2020 for driving with a cellphone. He received two more tickets in July and September for breaching a traffic sign and because his front-seat passenger was not wearing a seatbelt.

He paid the penalties and thought as a result, he would not get demerit points. He was told he had accumulated ten demerit points, and of the intention to suspend his permit, and was invited to respond. He did so within the statutory period under the legislation.

Although dismissing De Silva’s claim, Seepersad found the legislation on a driver’s avenue to appeal the decision of the transport commission to be poorly drafted.

The judge referred to the act, which said a person disqualified from holding a permit may appeal to “a court of competent jurisdiction.” Seepersad said while the act made reference to a “court” and “court of competent jurisdiction,” these terms were not adequately defined in any part of it.

He said a pivotal purpose of the amendment was to remove many traffic matters from the magistrates’ court, which had had almost exclusive jurisdiction over them.

“Against such a backdrop, the court asked itself, ‘Why would Parliament now place an additional burden on the high court, while at the same time streamlining the procedure in order to reduce the number of traffic matters going before the summary courts?’” Seepersad had asked.

Boodoosingh, who delivered the ruling, said the submission by De Silva’s attorneys that the High Court’s jurisdiction was, in a sense, wider than that of the Court of Appeal was “untenable.”

He added, “It is also significant to recall that the authority is imposing a penalty. It is logical to infer from the structure of the legislation that one rationale may have been to ease the workload of the magistrates’ courts by removing from them the administrative aspects consequent upon a decision that the requisite number of demerit points has been obtained."

On the 2017 amendment of the act, the Appeal Court held the deficiency in the drafting of the section dealing with challenges in the demerit point system was that it used a vague term, “court of competent jurisdiction.”

Instead, the court said the drafters could have easily removed the confusion.

“Clarity in drafting laws is an absolute necessity. It fell to the court to interpret the legislation. The judge correctly did so as a matter of law. He was correct to hold that the Court of Appeal, and not the High Court, is the proper forum for appeals of the decisions of the authority under section 88M of the act.”

Representing De Silva were attorneys Christophe Rodriguez, Devvon Williams and Kimaada Ottley. The Licensing Authority and Transport Commissioner were represented by attorneys Ravindra Nanga, Ms Rachel Theophilus and Savitri Maharaj.