The Privy Council has struck down a move by the Government to extend the term of local government representatives by a year.
Delivering a ruling at the United Kingdom Supreme Court Building in London, England, yesterday, the Privy Council upheld an appeal over the dismissal of a lawsuit alleging the move was unlawful, brought by political activist Ravi Balgobin Maharaj.
In a majority decision, three law lords, led by UK Supreme Court President Lord Robert Reed, ruled that High Court Judge Jacqueline Wilson and the Court of Appeal got it wrong when they dismissed Maharaj's case.
Two law lords agreed with the local courts' reasoning and provided a dissenting judgment.
The outcome effectively means local government elections now have to be called.
Those in the majority ruled that change in the term of representatives as contained in the Miscellaneous Provisions (Local Government Reform) Act, which was passed by Parliament without the support of the Opposition last year, could not apply to representatives elected for a three-year term in 2019.
They said the Parliament should have used clear and unambiguous language to indicate if that was its intent, but it did not do so.
Lord David Richards, who wrote the majority judgment, said: "If Parliament had intended to give the Government such a power, it is reasonable to expect that it would have done so expressly."
He added, "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."
He and his two colleagues also rejected the Government's suggestion that the change was a minor one.
"The continuation in office of elected representatives for a year, an increase of one-third in their term, without reference to the electorate, does not seem to the Board to be modest," he said.
Like the local courts, Lord Richards and his colleagues dismissed an aspect of the case alleging that the retroactive applicability of the legislation was unconstitutional.
"The Constitution contains no express reference to democratic participation in local government and no detailed provisions as regards local government similar to those concerning elections for members of the House of Representatives," he said.
Lord Richards also highlighted the importance of elections in a representative democracy such as T&T.
"The right to vote out representatives is as important as the right to vote in representatives," he said.
"At the end of the period for which they were elected, the electorate has the right to decide whether they wish the incumbent representatives to remain in office, assuming they stand for re-election."
In his lawsuit, Maharaj claimed he became concerned after Rural Development and Local Government Minister Faris Al-Rawi announced the Government's intention to proclaim certain sections of the legislation.
The sections of the legislation identified by Al-Rawi sought to increase the terms of councillors from three years to four years. It effectively caused the deferral of the election, which would have be due between December last year and March this year, had the amendment not been proclaimed.
Maharaj contended that Al-Rawi misinterpreted the effect of the legislation when he announced plans to apply it to incumbent councillors and aldermen, as he claimed it did not have a retroactive effect.
Maharaj's case was dismissed by Justice Jacqueline Wilson last year before his appeal was rejected by the Court of Appeal in February.
Presenting submissions that were eventually adopted by the Privy Council in March, his lawyer, Anand Ramlogan, SC, stated that Parliament should have clearly stated whether the amendment applied to local government representatives who were elected in late 2019.
"There must be a clear and unambiguous provision...There are no words in the amendment expressly permitting the extension," Ramlogan said.
He also pointed out that councillors, who did not anticipate the extension and who did not wish to continue to serve, could be fined $4,000 if they suddenly resigned. He also suggested that the extension affected citizens' right to vote, as they (citizens) elected their representatives for a three-year period in the last election.
"When you vote in an election, you elect someone for a fixed term," Ramlogan said.
King's Counsel Peter Carter, who appeared alongside Ramlogan for Maharaj, contended that local government elections are equally important as general elections for MPs, which take place every five years.
"Parliament cannot do that on a whim," Carter said.
Responding to the submissions, Thomas Roe, KC, who led the legal team for the Cabinet and Al-Rawi, suggested that actions taken by the Government were permitted under the amendment.
"There was no challenge to Parliament's right to make the change or the Cabinet's power to partially proclaim it. The difficulty is to whom it applies," Roe said.
He pointed out that there was no common law or constitutional right for citizens to vote in a local government election every three years, as such was based on the legislation that was amended by Parliament.
"What Parliament confers, it can take away," Roe said.
Maharaj was also represented by Mohammud Jaamae Hafeez-Baig, Adam Riley and Vishaal Siewsaran. Rishi Dass, SC, and Leah Abdulah also represented Al-Rawi and the Cabinet.
