Derek Achong

Se­nior Re­porter

derek.achong@guardian.co.tt

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.