Privy Council overturns Government’s decision to postpone local government elections in Trinidad and Tobago

19/05/23

The Privy Council has held that the Government of Trinidad and Tobago had misconstrued a recent Act of Parliament in deciding to postpone local government elections for one year. On a correct interpretation of the Act, the Councillors' and Aldermen's terms of office expired in December 2022, and local government elections were due to be held by March 2023.

Local government elections were last held in Trinidad and Tobago in December 2019. Under the Municipal Corporations Act 1990 ("Act") as it then stood, Councillors and Aldermen were elected for terms of 3 years. Their terms were therefore to expire in December 2022. Other provisions of the Act required that elections be held within 3 months of the expiry of those terms, that is, by March 2023.

In July 2022, the Parliament of Trinidad and Tobago enacted the Miscellaneous Provisions (Local Government Reform) Act 2022 ("Amending Act"). The Amending Act made significant changes to the internal structure of local government and, importantly for present purposes, changed the terms of office of Councillors and Aldermen from 3 years to 4 years. 

The Amending Act did not immediately come into effect; it provided that the Act (or individual provisions) were to come into operation on the date (or dates) fixed by the President (who acts on the advice of the Government) by Proclamation. A small number of provisions of the Amending Act, including the amendments to increase the terms of office, were brought into force from 8 November 2022.

The issue for the Privy Council was whether the amendment to the terms of office of Councillors and Aldermen—from 3 years to 4 years—applied to Councillors and Aldermen who were in office on 8 November 2022. The Government's position was that the amendments applied to the incumbent Councillors and Aldermen, such that (i) their terms of office were extended for one year (until December 2023) and (ii) the elections were postponed for one year (such that they had to be held by March 2024).

The appellant challenged this interpretation by way of applications for judicial review and interim relief. He was unsuccessful in the High Court and the Court of Appeal.

By majority, the Board allowed the appeal. The Board rejected an argument based on the Constitution of Trinidad and Tobago, but held that, properly construed, the amendments did not apply to the incumbent Councillors and Aldermen. In outline, the Board held that:

(i) The amended sections more naturally read as applying to representatives elected after the amendments come into force. But it accepted that there was a degree of ambiguity in the language.

(ii) The election of representatives for a fixed or maximum period is the foundation on which a democratic society is built. It is inimical to a representative democracy that the representatives are chosen by anyone other than the electorate. If the amendments applied to the incumbent Councillors and Aldermen, it would be the Government, rather than the electorate, that had chosen those representatives for another year.

(iii) General or ambiguous words were not a sufficient basis for interfering with the basis on which the incumbent Councillors and Aldermen had been elected. In light of the fundamental importance of these matters to a democratic system of government, the courts will scrutinise legislation to determine whether it has that effect. The words used here were not sufficiently clear.

(iv) The need for clear words also arose because, if the amendments applied to the incumbent Councillors and Aldermen, the amendments would have retrospective effect. The amendments would (i) interfere with and undermine the electorate's decision to elect them for terms of 3 years and (ii) oblige the incumbent Councillors and Aldermen to serve a further period of one year (and they could resign only on payment of a fine).

(v) The President (acting on the advice of Government) could choose the date on which the amendments were to come into force. If the amendments applied to incumbent Councillors and Aldermen, the Government could decide whether the terms of office of elected representatives should be extended by a year. If Parliament had intended that result, it is reasonable to expect that it would have said so expressly. It did not do so here.

The judgment is here and the press summary is here.