Joshua Seemu­n­gal

Se­nior Mul­ti­me­dia Jour­nal­ist

joshua.seemu­n­gal@guardian.co.tt

The Gov­ern­ment must call the lo­cal gov­ern­ment elec­tions ur­gent­ly and bring leg­is­la­tion to Par­lia­ment to rec­ti­fy the leg­isla­tive deficit iden­ti­fied by the Privy Coun­cil’s May 18 rul­ing, say po­lit­i­cal/le­gal ex­perts.

Their pro­nounce­ments come fol­low­ing the Privy Coun­cil’s rul­ing which in­val­i­dat­ed the Gov­ern­ment’s at­tempt to ex­tend the term of lo­cal gov­ern­ment rep­re­sen­ta­tives by a year.

Ac­cord­ing to the ex­perts, the judg­ment makes it clear that coun­cil­lors and al­der­men no longer have the au­thor­i­ty to hold of­fice in the 14 re­gion­al and city cor­po­ra­tions.

“The ef­fect of the Privy Coun­cil de­ci­sion is to in­val­i­date the ex­ten­sion of the term of of­fice of the lo­cal gov­ern­ment cor­po­ra­tions. This will de­prive the elect­ed coun­cil­lors and al­der­men of their au­thor­i­ty to con­tin­ue to per­form the du­ties they were elect­ed to per­form in De­cem­ber 2019,” po­lit­i­cal sci­en­tist Prof Hamid Ghany said.

“The Gov­ern­ment must ei­ther arrange to hold lo­cal gov­ern­ment elec­tions as soon as pos­si­ble or bring leg­is­la­tion to Par­lia­ment to rec­ti­fy the leg­isla­tive deficit iden­ti­fied by the Privy Coun­cil.”

Senior Counsel Martin Daly

Se­nior Coun­sel Mar­tin Daly said, “Re­fer to para­graph 34 of the judg­ment ... This makes it plain that these of­fi­cials no longer valid­ly hold of­fice. The pub­lic in­ter­est in this ought not to be un­der­mined by word games, po­lit­i­cal spin, and ego­tis­tic con­duct.”

He said, “A se­ri­ous er­ror was made and the pub­lic in­ter­est re­quires that the sit­u­a­tion be rec­ti­fied in the short­est pos­si­ble time.”

An­oth­er Se­nior Coun­sel Is­rael Khan agreed with Daly’s and Ghany’s in­ter­pre­ta­tions. How­ev­er, he be­lieves that the Gov­ern­ment will pass leg­is­la­tion that will legal­ly and retroac­tive­ly val­i­date all lo­cal gov­ern­ment ac­tions made dur­ing the pe­ri­od in ques­tion.

Israel Khan, SC

NICOLE DRAYTON

Mean­while, Op­po­si­tion Sen­a­tor Jayan­ti Lutch­me­di­al, who was part of the le­gal team that brought the law­suit against the Gov­ern­ment, be­lieves that all lo­cal rep­re­sen­ta­tives ought to have demit­ted of­fice last Thurs­day.

“As a con­se­quence, the cur­rent state of af­fairs is there­fore that all coun­cil­lors and al­der­men have been hold­ing of­fice il­le­gal­ly since De­cem­ber 2, 2022, and all de­ci­sions tak­en and mon­ey spent was done so with­out law­ful au­thor­i­ty. They have all been wrong­ly paid from the pub­lic purse,” the at­tor­ney added.

Para­graph 34 of the Privy Coun­cil’s judg­ment reads, “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 rep­re­sen­ta­tives. But, if the amend­ments to sec­tions 11 and 12 are con­strued to ap­ply to the in­cum­bent coun­cil­lors and al­der­men, the ef­fect will be that 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.”

The ex­perts, how­ev­er, have vary­ing in­ter­pre­ta­tions of what the rul­ing means for the func­tion­al­i­ty of the Min­istry of Lo­cal Gov­ern­ment and Rur­al De­vel­op­ment, head­ed by Min­is­ter Faris Al-Rawi.

UNC Senator Jayanti Lutchmedial

ANISTO ALVES

Prof Ghany be­lieves that the min­istry can con­tin­ue to per­form its func­tions but on­ly us­ing al­lo­ca­tions from the Oc­to­ber 2022 bud­get.

Se­nior Coun­sel Daly, mean­while, be­lieves the min­istry may be able to func­tion, but in a lim­it­ed ca­pac­i­ty.

“The doc­trine of ne­ces­si­ty may per­mit a very lim­it­ed lat­i­tude to op­er­ate to re­spond to emer­gen­cies and pos­si­bly to pay­roll. Even that lat­i­tude can­not be pro­longed by in­ac­tion. That is one of the many rea­sons why elec­tions must be held prompt­ly. Lat­er on, there may be a need for nar­row­ly draft­ed val­i­dat­ing leg­is­la­tion to put acts done dur­ing the pe­ri­od be­yond which of­fice was valid­ly held on a sur­er foun­da­tion,” Daly said.

Lutch­me­di­al said re­gion­al and city cor­po­ra­tions are now at risk for an avalanche of lit­i­ga­tion.

“This will add to the $1.2 bil­lion le­gal bill while the whole of lo­cal gov­ern­ment is shift­ing rud­der­less and aim­less. Ad­di­tion­al­ly, whilst the doc­trine of ad­min­is­tra­tive ne­ces­si­ty may be ap­plied to save the ac­tions tak­en pri­or to the judg­ment I’m of the view that it can­not and should not ap­ply to any­thing done af­ter,” Lutch­me­di­al said.

Al-Rawi could not be con­tact­ed for com­ment.

Minister of Local Government and Rural Development Faris Al-Rawi

The Privy Coun­cil rul­ing

On May 18, in a ma­jor­i­ty rul­ing, three UK law lords ruled that High Court Judge Jacque­line Wil­son and the Court of Ap­peal got it wrong when they dis­missed a law­suit filed by Ravi Bal­go­b­in Ma­haraj.

The rul­ing found that the change in the term of lo­cal rep­re­sen­ta­tives pre­scribed in the Mis­cel­la­neous Pro­vi­sions (Lo­cal Gov­ern­ment Re­form) Act–passed in Par­lia­ment with­out op­po­si­tion sup­port–could not ap­ply to rep­re­sen­ta­tives elect­ed for a three-year term in 2019.

They said the Par­lia­ment should have used lan­guage to in­di­cate if that was its in­tent, but it did not do so.

The lo­cal gov­ern­ment elec­tions were orig­i­nal­ly due be­tween De­cem­ber 4 and March 4, 2023. But, fol­low­ing the par­tial procla­ma­tion of lo­cal gov­ern­ment re­form leg­is­la­tion, the Gov­ern­ment pro­posed that the elec­tion would be held a year lat­er.