Ravi Balgobin Maharaj v The Cabinet of the Republic of Trinidad and Tobago and another
| Jurisdiction | UK Non-devolved |
| Judge | Lord Richards,Lord Reed,Lord Hodge,Lord Briggs,Lord Kitchin |
| Judgment Date | 18 May 2023 |
| Neutral Citation | [2023] UKPC 17 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0016 of 2023 |
[2023] UKPC 17
Lord Reed
Lord Hodge
Lord Briggs
Lord Kitchin
Lord Richards
Privy Council Appeal No 0016 of 2023
Privy Council
Easter Term
From the Court of Appeal of the Republic of Trinidad and Tobago
Appellant
Anand Ramlogan SC
Peter Carter KC
Mohammud Jaamae Hafeez-Baig
Adam Riley
(Instructed by Vishaal Siewsaran of Freedom Law Chambers (San Fernando, Trinidad and Tobago))
Respondents
Thomas Roe KC
Rishi Dass SC
Leah Abdulah
(Instructed by Charles Russell Speechlys LLP (London))
Respondents:
(1) The Cabinet of the Republic of Trinidad and Tobago
(2) The Minister of Rural Development and Local Government
Heard on 15 March 2023
Lord Richards ( with whom Lord Reed and Lord Hodge agree):
On 2 December 2019, local government elections were held in Trinidad and Tobago. In accordance with the Municipal Corporations Act 1990 (“the MCA”), Councillors were directly elected by popular vote for a period of three years. Aldermen were also elected for a period of three years, using a party list system under which Aldermen were elected according to the number of votes cast for candidates of each party in the election for Councillors. The Councillors and Aldermen elected in December 2019 were due to lose office in December 2022 and further local elections were due to be held by March 2023.
The periods of office of Councillors and Aldermen were fixed by sections 11(4) and 12(5) respectively of the MCA. Significant changes to the internal structure of local government were made by the Miscellaneous Provisions ( Local Government Reform) Act, 2022 (“the 2022 Act”), which received Assent on 1 July 2022. The position of Councillors and Aldermen within the structure of local government was left largely unchanged, save that they were to serve for periods of four years, instead of three years. The 2022 Act did not immediately come into effect, but by section 2 it was to come into operation on such date as fixed by the President by Proclamation. This power may be exercised as regards the whole Act or such provisions as may be specified: section 5(2) of the Statutes Act 1962. The President acts on the advice of the Government.
On 7 November 2022, a Proclamation was issued, bringing a small number of provisions of the 2022 Act into force with effect from 8 November 2022. The principal changes were to substitute four years for three years as the periods of office of Councillors and Aldermen.
On 3 November 2022, the Minister of Rural Development and Local Government had announced the Government's intention to bring these provisions of the 2022 Act into force. He stated that the new four-year term would apply to the Councillors and Aldermen then in office (“incumbent Councillors” and “incumbent Aldermen”), who would therefore serve for an additional term of one year until December 2023, with elections postponed for one year.
The Government's interpretation of the effect of the amendments on the terms of office of the incumbent Councillors and Aldermen was challenged by the appellant, Ravi Balgobin Maharaj. He filed applications for leave to apply for judicial review on 15 November 2022 and for interim relief on 21 November 2022. On 30 November 2022, Wilson J refused the application for interim relief. While she considered that there was a serious issue to be tried, she considered on discretionary grounds that interim relief should not be granted.
On appeal against the refusal of interim relief, the Court of Appeal agreed that, having regard to the importance of the case and the seriousness of the consequences, it would determine the “core issue” in the substantive claim, namely, whether sections 11 and 12 of the MCA, as amended by the 2022 Act, applied to the incumbent Councillors and Aldermen. In careful judgments given on 10 February 2023, the Court of Appeal (P Moosai, G Lucky and JC Aboud JJA) unanimously dismissed the appeal. The Court of Appeal granted permission to appeal to the Board.
Before the enactment of the MCA, local government was based largely on a system of elected county councils. The county councils were replaced under the terms of the MCA by newly constituted municipal corporations, with four existing municipal corporations continuing but subject to the provisions of the MCA. Section 8 provides that the Mayor, Aldermen, Councillors and electors of each Municipality shall be a body corporate. Section 10 provides that the powers of each municipal corporation shall be exercised by its Council, which shall consist of the Mayor, Aldermen and Councillors. The municipal corporations are tasked with a wide range of duties, many of which are essential to the proper functioning of their areas.
As with the county councils, the municipal corporations were established as democratically elected bodies. The Councillors are directly elected by popular vote of the registered electorate. This is provided by section 11 of the MCA which lies at the heart of this appeal.
Before the amendments made with effect from 8 November 2022, section 11 was in the following terms:
“(1) Councillors shall be elected by the electors for each Municipality in the manner provided for in the Representation of the People Act.
(2) The number of Councillors to be elected to the Council of each Corporation shall, subject to the provisions of the Elections and Boundaries Commission (Local Government) Act, be as set out in the Third Schedule, or in any Order made pursuant to section 5(2).
(3) One Councillor shall be returned for each electoral district.
(4) The term of office of Councillors shall be three years, and they shall retire together on the last day of every triennial period, the first of which shall be deemed to have begun on the day on which the Councillors were elected to office.
(4A) An election referred to in subsection (1) shall be held within three months of the expiry of the term of office of the Mayor, Councillors and Aldermen comprising the Council.
(4B) Notwithstanding subsection (4A), for the purposes only of the elections due in the year 1995, under this section, such election shall be held within nine months of the expiry of the terms of office of the Councillors and Aldermen comprising the Council.
(4C) Notwithstanding subsection (4A), for the purposes only of the elections due in the year 2002, under this section, such election shall be held within one year of the expiry of the terms of office of the Councillors and Aldermen comprising the Council.
(5) A Councillor who has been elected to fill a vacancy shall hold office until the time when the person whose vacancy he filled would have gone out of office through effluxion of time.
(6) Subject to subsection (7), a person is qualified to be elected as a Councillor if, and is qualified to continue to be a Councillor if, he—
(a) is a citizen of Trinidad and Tobago;
(b) is qualified to be an elector under section 13 of the Representation of the People Act except that such person is not disqualified to be a candidate by reason only that—
(i) he resides; or
(ii) his qualifying property is situated, in the electoral area but in an electoral district other than the electoral district for which he seeks to be a candidate;
(c) is able to speak and, unless incapacitated by blindness or other physical cause, to read the English language.
(7) In subsection (6), ‘electoral area’ and ‘electoral district’ have the meanings assigned to those expressions in section 2 of the Elections and Boundaries Commission (Local Government) Act.
(8) A person is disqualified from being a Councillor if he—
(a) is by virtue of his own act under any acknowledgement of allegiance, obedience or adherence to a foreign power or State;
(b) has been adjudged or otherwise declared bankrupt and has not been discharged;
(c) is a mentally ill person within the meaning of the Mental Health Act;
(d) is under sentence of death or is serving a sentence of imprisonment exceeding twelve months imposed on him by a Court of competent jurisdiction in Trinidad and Tobago or substituted by competent authority for some other sentence imposed on him by such a Court or is under such a sentence of imprisonment the execution of which has been suspended;
(e) is disqualified for such election under the Representation of the People Act;
(f) is a member of the Senate, the House of Representatives, the Tobago House of Assembly or another Municipal Council;
(g) holds any office or place of profit, other than Mayor or Deputy Mayor, in the gift or disposal of the Corporation; but a person shall not be disqualified by reason of—
(i) receiving or being entitled to receive payment by way only of travelling or subsistence allowances, or a refund of out-of-pocket expenses;
(ii) his receiving fees as a medical practitioner from the Corporation as the local authority of a sanitary district, fees for the notification of cases of infectious diseases under the Public Health Ordinance or any similar written law;
(h) is debarred from exercising the practice of his profession on account of any act involving dishonesty;
(i) has within five years before the day of the election or since his election been surcharged to an amount exceeding two thousand five hundred dollars under the Exchequer and Audit Act or under Part VI of this Act;
(j) is a person whose name appears on the List of Aldermen under section 12A; and
(k) is a person who is a sitting Alderman having been declared an Alderman by the Elections and Boundaries Commission under section 13.”
Each Councillor was therefore elected by popular vote for a term of three years (section 11(4)), as had been the case under the previous system of local government, with a requirement added by amendment in 1992 that elections be held within...
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