A RIGHT TO vote for a local government representative is for the people and not the Parliament.
This was the main thrust of the majority of the Privy Council on Thursday as three judges upheld a legal challenge against Government's extension of the term of incumbent local government representatives by a year, without going to the electorate.
"It is inimical to a representative democracy that the representatives are chosen by anyone other than the electorate. It is not for Parliament, still less the Government, to choose the representative.
"The right to vote out representatives is as important as the right to vote in representatives," the Privy Council judges said.
Thursday’s ruling of TT highest court, based in London, was precedent-setting.
It is widely known in legal circles that the third time is not the charm, as only in exceptional cases will the Privy Council entertain appeals against concurrent findings from local courts.
It was also rare that both president of the UK’s supreme court Lord Robert Reed and his deputy Lord Patrick Hodge sat on the same panel in March along with three other judges, who, in a last-minute decision on Wednesday, opted not to adopt their usual course of promulgation of the ruling, but instead held a sitting to deliver it.
It was delivered at 8.30 am (TT time) on Thursday and lasted mere minutes.
The local government challenge was led by social activist Ravi Balgobin-Maharaj who contended that Justice Jacqueline Wilson and the Appeal Court got it wrong by consecutively rejecting his case in November 2022 and February.
Balgobin-Maharaj complained about the passage of amendments in 2022 which extended the term of local government councillors to four years and also allowed the election to be delayed by a year.
The election was due between December and March, but the partial proclamation of local government reform legislation allowed the extension of the terms of councillors and aldermen, who were elected in 2019, to four years.
The amendments were passed without opposition support.
In his complaint, Balgobin-Maharaj said he became concerned after Local Government Minister Faris Al-Rawi announced Government's intention to proclaim certain sections of the legislation.
These sections sought to increase the terms of councillors from three to four years.
Balgobin-Maharaj contended Al-Rawi misinterpreted the effect of the legislation when he announced plans to apply it to incumbent councillors and aldermen. He maintained it did not have a retroactive effect.
Lords Reed, Hodge and David Richards, who delivered the majority ruling, agreed with the arguments of Balgobin-Maharaj’s attorney Anand Ramlogan, SC, who led Peter Carter, KC, and a team of attorneys from Ramlogan's Freedom Law Chambers, on the construction of amendments to the Municipal Corporations Act (MCA).
Richards said local government reform amendments could only apply to representatives in the future, admitting, though, there was a degree of ambiguity in the language as it related to incumbent councillors and aldermen.
“If the amendments were intended to apply to incumbent councillors and aldermen, the presumption against retrospective effect would require clear language,” the ruling said.
Richards said if Parliament intended to confer on Government the power to decide whether or not the terms of office of elected representatives should be extended by a year, it needed to do expressly.
“The legislation does not do so, nor does it appear that any consideration was given to this possibility in any of the steps which led to the changes made in local government by the 2022 Act.
“For the reasons given in this judgment, the Board is unable to agree with the Court of Appeal that the amendments to sections 11 and 12 of the MCA, increasing terms of office from three to four years, applied to incumbent councillors and aldermen. The Board, therefore, allows the appeal.”
THE RIGHT TO VOTE
Earlier in the ruling, Richards said if the amendments applied to incumbents, then it would directly interfere with and undermine the electorate's decision to elect them for a term of three years.
And although Balgobin-Maharaj was unsuccessful in his constitutional complaint, the judges agreed that “Parliament cannot itself override fundamental rights or the rule of law by general or ambiguous words.
“The right of citizens to vote for councillors and, indirectly, for aldermen, indeed the whole democratic structure of local government is statutory.
“This is true of all voting rights and democratic processes, at the level of central as well as local government. Voting rights are not a product of the common law.
“...It cannot be supposed that Parliament can have intended to compromise the electorate’s right to choose their representatives without that being clearly the intention of Parliament.
“The fact that the democratic process, and the voting rights of individuals in that process, are derived solely from statute does not diminish their fundamental importance: Ambiguities in legislation are resolved in favour of democratic rights…
“In the Board’s judgment, it is the central importance of the statutory regime for a democratic government that requires the use of clear language.”
The judges also held that a “democratic society will necessarily engage other rights – freedom of expression and association, for example – but the election of representatives for a fixed or maximum period is the foundation on which it is built...
"However, if the effect of the relevant amendments was to apply to incumbent representatives, the effect would be that the Government, rather than the electorate, had chosen those representatives for another year."
The ruling added, “But, if the amendments to sections 11 and 12 are construed to apply to the incumbent councillors and aldermen, the effect will be they have been chosen as representatives for an additional year, not by the electorate but by the Government, which brought the amendments into force while those councillors and aldermen were still in office.”
Richards said, "General or ambiguous words are not a sufficient basis for interfering with the basis on which incumbents were elected."
He said this would not have caused a problem if the incumbents were free to resign.
However, he said under the MCA, they could only do so after paying a fine, currently set at $4,000.
"The Board considered that a powerful indication that the amendments were not intended to apply to incumbents is that the President (which in reality means Government) was empowered to bring these amendments into effect on a date specified in the Proclamation.
"If applicable to incumbents, Parliament would have conferred on the Government power to decide whether or not the terms of office of elected representatives should be extended by a year. If such a power had been intended, it is reasonable to expect that it would have done so expressly."
The dissenting decision was delivered by Lords Michael Briggs and David Kitchin.
Briggs, who delivered it, said it was his judgment that the effect of the amendments to the act was to extend the term of office of councillors and aldermen already in office.
Admitting that he and Kitchin agreed on the principles of the majority, he said TT’s Constitution did not prevent Parliament from altering the term of office of elected local government officials whether by extension or abridgement. Neither, he added, did the Constitution prevent Parliament from altering the periodicity of local government elections.
Briggs agreed that any chance to alter the terms of an incumbent must be articulated in clear terms, but statutory interpretation should be resolved objectively.
“It is in my view nothing to the point that there may have been an expectation in Trinidad and Tobago prior to the proclamation of the amendments to sections 11 and 12 in November 2022 that there were going to be local government elections in early 2023. But for the amendments, there would have been such elections, because that was what the MCA clearly then prescribed.”
He added, “I recognise that there is some element of an inroad into the democratic process, particularly in the sense that councillors and aldermen are thereby required to serve an extra year beyond that for which it may be said that they volunteered, and are only able to avoid that additional burden by resigning on terms involving the payment of a civil penalty.
“But Parliament has legislated for so many such extensions during the relatively short life of this Act, that doing it again at the outset of a permanent change from three to four years’ service can hardly be described as surprising. It only requires an inspection of section 273 to see that it was done for four consecutive years in a row, namely 2006, 2007, 2008 and 2009.
“It was also done in substance in 1990, 1995 and 2002, under the cloak of making them members of an advisory committee on the same terms and conditions as they enjoyed as councillors and aldermen. All those extensions were made against the background of the general retention of a three-year cycle.
“It strikes me as considerably less of an inroad into democracy to provide for a one-year extension of service of current councillors and aldermen against the backdrop of the introduction of a permanent change to a four-year cycle.
Briggs said for it to be seen that the extension to the service of the incumbents was an “inroad into democracy” reminded that Parliament was a superior democratically-elected institution.
Appearing with Ramlogan and Carter at the Privy Council were UK attorneys Mohammud Jaamae-Hafeez-Baig of Brick Court Chambers, London; Adam Riley of 3 Hare Court Chambers; and TT attorney Vishaal Siewsarran. The Cabinet and Al-Rawi were represented by Thomas Roe, KC, Rishi Dass, SC, and Leah Abdulah. Douglas Mendes, SC, had argued the case for the State at the High Court and Court of Appeal.
Earlier this month, the Prime Minister announced the opening of nominations for candidates from his People’s National Movement (PNM) party for the 2023 local government elections. The PNM later said Dr Rowley issued the call at a general council meeting on May 1.
It also said the local government elections were “imminent.” Since then, the other political parties, including the Opposition UNC, have opened nominations.