Sto­ries -Gail Alexan­der

Elec­tion foot­ing is on, as Lo­cal Gov­ern­ment elec­tions will be held with­in 90 days of the Privy Coun­cil’s May 18 judg­ment.

Prime Min­is­ter Dr Kei­th Row­ley yes­ter­day an­nounced that law is ex­pect­ed to be pre­sent­ed in Par­lia­ment on Mon­day to val­i­date re­gion­al cor­po­ra­tions’ ac­tions from last De­cem­ber on­wards - and once passed, the LG elec­tions will be called with­in 90 days of the May 18 judg­ment.

Row­ley re­vealed the di­rec­tion in an ad­dress to the House of Rep­re­sen­ta­tives at the Red House in Port-of-Spain.

This, fol­low­ing last Thurs­day’s Privy Coun­cil rul­ing that Gov­ern­ment’s ex­ten­sion of the Lo­cal Gov­ern­ment term last De­cem­ber to De­cem­ber 3, 2023, was un­law­ful. Since then, some cor­po­ra­tion of­fi­cials have ex­pressed con­cern over con­duct­ing op­er­a­tions and about coun­cil­lors’ sta­tus.

Row­ley said yes­ter­day, “I want to make it abun­dant­ly clear that the Gov­ern­ment has no choice...but to ac­cept the rul­ing of the Privy Coun­cil and be guid­ed by its find­ings and their ef­fect on our op­er­a­tions and in­ten­tions.”

Row­ley de­tailed steps since Oc­to­ber 2020 to in­tro­duce amend­ments via the Mis­cel­la­neous Pro­vi­sions (Lo­cal Gov­ern­ment Re­form Bill) 2020 “... in a gen­uine de­sire to bring about Lo­cal Gov­ern­ment re­form to bet­ter serve the burgess­es and im­prove the qual­i­ty of their lives.”

He not­ed its pas­sage by both Hous­es of Par­lia­ment, “No­tice­ably, with­out Op­po­si­tion sup­port.”

De­tail­ing how Gov­ern­ment had un­der­tak­en the mat­ter (See box), Row­ley said procla­ma­tion of a num­ber of sec­tions of the Act from No­vem­ber 7th, 2022, trig­gered an “in­ter­pre­ta­tion bat­tle op­por­tu­ni­ty.”

He not­ed a chal­lenge on the is­sue from an or­di­nary ac­tivist cit­i­zen (Ravi Bal­go­b­in Ma­haraj) on No­vem­ber 15, 2022, and the de­feat of that chal­lenge all the way to the Ap­peal Court, which grant­ed per­mis­sion to ap­peal to the Privy Coun­cil.

The ap­peal was done on Feb­ru­ary 13, 2023 and on May 18, the Privy Coun­cil de­liv­ered judg­ment.

Row­ley, who not­ed the split Privy Coun­cil views and oth­er as­pects of the rul­ing, added, “We see a change, not a cri­sis and there’s def­i­nite­ly no need for the may­hem, sack­cloth and ash­es that some de­sire.”

Law val­i­dat­ing cor­po­ra­tions’ ac­tions on Mon

The PM said the Gov­ern­ment must now act to rec­ti­fy any short­com­ings that now ex­ist that were not there be­fore. “I re­fer here specif­i­cal­ly to the ac­tions and work­ings of the Lo­cal Gov­ern­ment for the af­fect­ed pe­ri­od De­cem­ber 2022 to the date of the ad­verse rul­ing and be­yond,” he said.

Row­ley said the At­tor­ney Gen­er­al has al­ready en­gaged and de­scribed “the calm­ing prin­ci­ples of set­tled law in the con­text of the de fac­to of­fi­cer doc­trine.”

At­tor­ney Gen­er­al Regi­nald ar­mour did that in the Sen­ate on Tues­day.

“By the ap­pli­ca­tion of the com­mon law de fac­to of­fi­cer doc­trine, the ac­tions and de­ci­sions of the cor­po­ra­tions will be recog­nised by law as valid,” Row­ley added.

Con­sis­tent with that ad­vice, Row­ley said the Deputy Chief Par­lia­men­tary Coun­sel is in the process of draft­ing the nec­es­sary leg­is­la­tion to val­i­date all acts of the cor­po­ra­tions from De­cem­ber 2022 up to May 18th, 2023, and for the three-month pe­ri­od from that (to elec­tion).

Row­ley said this leg­is­la­tion is ex­pect­ed to be ready to be laid and de­bat­ed and tak­en through all its stages in Par­lia­ment next Mon­day.

Say­ing there is no cri­sis, he added, “All that is re­quired is for the Gov­ern­ment to act with­in a rea­son­able time frame to main­tain an or­der­ly re­sponse and ef­fect the nec­es­sary process­es, in­clud­ing the call­ing of elec­tions, gleaned with­in the rul­ings set out by the Privy Coun­cil.”

Elec­tions be­tween May 18-Aug 18

Fol­low­ing the Privy Coun­cil’s de­ci­sion, the PM said the time for call­ing an elec­tion is now past due.

“The Gov­ern­ment is du­ty-bound to call an elec­tion in ac­cor­dance with the statu­to­ry pro­ce­dure pre­scribed in the Act and the Rep­re­sen­ta­tion of the Peo­ple Act.

“Pur­suant to the pro­vi­sions of the Rep­re­sen­ta­tion of the Peo­ple Act, the Pres­i­dent, act­ing in ac­cor­dance with the ad­vice of the Cab­i­net [S. 81 of the Con­sti­tu­tion] is now to be man­dat­ed to is­sue a writ, set­ting the Lo­cal Gov­ern­ment Elec­tions in mo­tion.”

Row­ley added, “Un­der ex­ist­ing law, a pe­ri­od of not less than 35 days must lapse be­tween the is­sue of the writ, and the tak­ing of the poll. Im­me­di­ate­ly, and with­in three months of the 18th of May, the Gov­ern­ment will move to is­sue the writ so that a poll can be tak­en with­in the usu­al 90-day win­dow.

“With the ar­rival of the new de­ci­sion, the op­tion al­ways ex­ists to ex­tend the of­fice of the in­cum­bents up to the 18th of May, so as to val­i­date their ac­tions, pri­or to May 18th, and to call an elec­tion to be held with­in three months from the 18th of May 2023. Of the many op­tions avail­able, this is the one most suit­able and the one cho­sen by the Gov­ern­ment at this time.”

Con­sis­tent with this ad­vice and de­ci­sion, he said the Deputy CPC is on stand­by for draft­ing the nec­es­sary val­i­da­tion leg­is­la­tion ex­pect­ed for Mon­day’s de­bate.

“... Once this is ac­com­plished, the date for Lo­cal Gov­ern­ment, with­in the 90-day win­dow will be an­nounced,” Row­ley added.

The PM al­so not­ed that the Privy Coun­cil didn’t cite any con­sti­tu­tion­al breach in the mat­ter.

Row­ley said, “All five judges of the Privy Coun­cil de­cid­ed that a change in the length of the terms of of­fice of the in­cum­bent coun­cil­lors and al­der­men did not amount to a con­tra­ven­tion or breach of any pro­vi­sion of the Con­sti­tu­tion.”

On ac­cu­sa­tions from the Op­po­si­tion and “some el­e­ments in the me­dia” that Gov­ern­ment had breached cit­i­zens’ con­sti­tu­tion­al rights, he said, “The Gov­ern­ment pleads not guilty!”

He added, “Up to the 17th of May, 2023, the Gov­ern­ment’s in­ter­pre­ta­tion pre­vailed, sup­port­ed by the rea­soned de­ci­sions of our High Court and Ap­peal Court. This is the proof that our le­gal and pro­tec­tion sys­tems worked and at no time did the Gov­ern­ment act with im­puni­ty or wan­ton dis­re­gard for our laws or with any ma­li­cious in­tent to­wards cit­i­zens and their rights.”

PM blanks Kam­la’s query

Af­ter Prime Min­is­ter Dr Kei­th Row­ley’s ad­dress yes­ter­day, Op­po­si­tion Leader Kam­la Per­sad-Bisses­sar queried the sta­tus of ex­ist­ing in­cum­bent coun­cil­lors.

But Row­ley, say­ing he’d been “crys­tal clear,” added, “I’m not the le­gal ad­vis­er of the Op­po­si­tion Leader. I’ve said every­thing I need to say on this mat­ter, I’ve cov­ered the pe­ri­od up to the May 18 de­ci­sion and I’ve in­di­cat­ed the Gov­ern­ment’s ac­tions go­ing for­ward from May 18 to 90 days and I have no fur­ther ad­vice to give the Op­po­si­tion Leader - ex­cept to ask her to stop writ­ing all over the world and nasty­ing up T&T’s name!”

In his ad­dress, Row­ley out­lined the process of try­ing to pro­duce the decades-long “elu­sive dream” of LG re­form - and that his Gov­ern­ment had un­der­tak­en to get it done.

“Notwith­stand­ing the dif­fi­cul­ties, lack of sup­port from some of our col­leagues and myr­i­ad ob­sta­cles in the way, this Gov­ern­ment be­lieves that a re­formed and mod­ernised sys­tem of Lo­cal Gov­ern­ment, as pre­sent­ed af­ter years of com­plaints and re­sul­tant wide­spread con­sul­ta­tion, was in the best in­ter­est of the na­tion as a whole,” he added.

“It was with­in this mis­sion that the Gov­ern­ment pressed on cau­tious­ly but res­olute­ly to bring this about by the pas­sage of the new law and its sec­tion­al, step-by-step procla­ma­tion, as the nec­es­sary prepa­ra­tions were made to op­er­a­tionalise the new arrange­ments.”

Since some re­form mea­sures are quite nov­el and far reach­ing, he said Gov­ern­ment’s in­ten­tion was that the best way to have eased these in­to be­ing was to have “ex­tend­ed the ap­pli­ca­tion of the terms of the new law, as in­tend­ed, to the in­cum­bents in such a way that it af­ford­ed some el­e­ment of a smooth tran­si­tion.”

“This ne­ces­si­tat­ed a short ex­ten­sion of the life of the in­cum­bents and it was the Gov­ern­ment’s in­ter­pre­ta­tion and op­tion that this ex­i­gency was tak­en care of in the pro­vi­sions of the new law. By Le­gal No­tice No. 206 of 2022, of 7th No­vem­ber 2022, a num­ber of sec­tions of this Act were pro­claimed and came in­to force from 8th No­vem­ber 2022.”

How­ev­er, the procla­ma­tion was chal­lenged on No­vem­ber 15, 2022, by Ravi Bal­go­b­in Ma­haraj. Row­ley not­ed the High Court’s re­fusal to grant the ap­pli­cant’s in­junc­tion and the Ap­peal Court’s dis­missal of the sub­se­quent ap­peal - but the Ap­peal Court grant­ed per­mis­sion to ap­peal to the Privy Coun­cil.

“The grant of the ap­peal to the Privy Coun­cil is fur­ther proof of the sys­tems be­ing al­lowed to work...” Row­ley said.

He added, “Giv­en the na­ture of the in­ter­pre­ta­tion prob­lem be­ing grap­pled with, it was not sur­pris­ing that there was a split de­ci­sion at the Privy Coun­cil.”

He not­ed Lords Richards, Reed and Hodge state­ments at para­graph 20 of the rul­ing.

They’d stat­ed “..’.On any foot­ing, the ab­sence of any de­tailed pro­vi­sions con­cern­ing lo­cal gov­ern­ment elec­tions leads to the in­evitable con­clu­sion that a change in the length of the terms of of­fice of in­cum­bent Coun­cil­lors and Al­der­men can­not amount to a con­tra­ven­tion of the Con­sti­tu­tion. The term for which rep­re­sen­ta­tives have been elect­ed is im­por­tant but an in­crease by one year in the term of in­cum­bent Coun­cil­lors and Al­der­men does not of it­self breach any of pro­vi­sion of the Con­sti­tu­tion’.”

Row­ley said the sim­ple ques­tion to be de­ter­mined at every stage in this le­gal con­test was whether as a mat­ter of con­struc­tion, ap­ply­ing rel­e­vant prin­ci­ples of con­struc­tion, the amend­ments to sec­tions 11 and 12 ap­ply to in­cum­bent coun­cil­lors and al­der­men at the time that the amend­ments came in­to force.

“The ma­jor­i­ty (Law Lords) de­cid­ed the amend­ments ap­plied to coun­cil­lors and al­der­men af­ter the amend­ments came in­to force and not to the in­cum­bent coun­cil­lors and al­der­men. The mi­nor­i­ty de­cid­ed that the amend­ments did ap­ply to the in­cum­bent coun­cil­lors and al­der­men. So, even down to the bit­ter end there is a di­ver­gence of views on this prick­ly in­ter­pre­ta­tion of the mean­ing of the con­test­ed sec­tion.”

Al­so, in the fi­nal de­c­la­ra­tion, two judges vot­ed in favour of pre­serv­ing the sta­tus quo of the suc­cess­ful de­fences of the rel­e­vant in­ter­pre­ta­tion and three vot­ed to dis­agree.