The illegality of wrecking

I've been given the opportunity to write a weekly column in the Trinidad & Tobago Sunday Newsday; here's the first article I wrote. 

http://www.newsday.co.tt/commentary/0,204255.html

In comparison to James Bristol v Commissioner of Police (1997) from Grenada, the Privy Council ruling in Learie Alleyne-Forte v The Attorney General of T&T (1998) is erroneous and the fact remains that the wrecking of vehicles in Trinidad and Tobago is unconstitutional and only contributes to weakening the rule of law, thereby eliminating everyone’s right to justice in the country.

I have never been in favour of retaining the Privy Council and this issue is one of the reasons for my opinion. How does a country with no codified constitution be allowed to make decisions on our Constitution, especially when their laws do not allow such a practice?

In 1948, the right to own and not be arbitrarily deprived of property was enshrined in article 17 of the Universal Declaration of Human Rights. Since then, fascimiles of this article can be found in many Constitutions around the world. In Trinidad and Tobago, this right is echoed in section 4(a) of the Constitution, with the even more important annexation– “except by due process of law”. “Due process” is the three-part system for all legal issues: (1) adequate notice, (2) an opportunity to be heard and (3) the right to appeal. What’s limpid here is that rights are not arbitrary or negotiable; and therefore cannot be abrogated without just cause. In other words, before wrecking can occur, a driver must at least be notified of the infringement, whether verbally or in the form of a fixed-penalty notice. 

The ex parte decisions to wreck vehicles in TT do not reflect the true nature of our democratic Republic. Generally, a democracy is a nomocracy, and is based on the rule of law; however, we have a society based on the rule of man. According to the Motor Vehicle and Road Traffic Act (“the Act”), a member of the police service has permission to wreck a vehicle that is likely to cause an obstruction – powers based on subjectivity with no specific guidelines. What is “likely”, and what exactly is an “obstruction”? How can we possibly give subjective powers to the police and a “wrecker man” whose only objective is money? 

A 2012 newspaper report stated that the Port-of-Spain City Corporation received “$800,000 a month from wrecking illegally parked cars on the city’s streets. The revenue from wrecking in a single day can reach $85,000, and on a weekend brings in close to $200,000.” This illustrates the lucrativeness of wrecking, not only for the privately contracted wreckers, but for the kleptocratic governments. When the wrecker man knows that he will collect $300 for every vehicle he wrecks, what would then be his main objective – wreck more, make more. Even a legally parked vehicle with no witnesses around becomes fair game – $$cha-ching! They don’t have to prove that you were illegally parked and you can’t prove that you were parked legally; and even of you could, you still have to pay to get your vehicle back; and then what? Who’s responsible for hearing parking grievances? What if the vehicle is damaged? 

Now, let me address the most vocal of complaints by drivers: signage. According to the Act and its subsidiary legislation, parking is prohibited on certain streets at certain times, many of which do not have any signage. This is where the parking and wrecking scam begins: section 64(1)(b) is explicit in stating that no signs should be erected in reference to any parking Order made under section 65, which is the section empowering the minister responsible for transport to make laws regarding parking on any road. As most of us may know, ignorance of the law is no excuse, but it is entirely unconscionable to expect drivers (what about tourists?) to know where and when to park without having to carry around the eight parking regulations under the Act, and peruse them before deciding to park at a specific location: 

We’re not the only Commonwealth Caribbean country where wrecking is enshrined in law (see Barbados’ Road Traffic Regulations, for example), but in their case, wrecking is done only when absolutely necessary, not as a business. Legislative reform is necessary to avoid these wreckers benefiting from every wrecked vehicle. The wrecking fee has to be a flat rate, and a picture of the illegally parked vehicle must be taken - a common practice in many countries. [An even better alternative is clamping]. It is impossible to have justice without accountability, and there is no accountability without redress.

Alleviating the traffic and parking problems in Trinidad and Tobago can ONLY be solved with an efficient public transportation system. Building more roads, wrecking, and all the other asinine ideas are only political legerdemain: more roads aren’t the solution... less cars is!

Poll: Religion v Rights: should homosexual activity continue to be illegal in T&T?

Occupier's Liability

Q: A friend of mine came over to my house for a birthday party. She tripped on some loose tiles and ended up fracturing her wrist when she fell. Am I responsible even though I didn't know?

A: Yes, you are responsible. As an occupier, you are responsible for injuries to certain persons on your property/premises; this is called occupier's liability.

Here’s the law surrounding this topic.

Who is an occupier?

According to Wheat v Lacon (1966), an occupier exercises a sufficient degree of control over the premises

In this case,  4 categories of Occupiers were identified:

1. If the landlord rents the premises to a tenant, then the tenant is the occupier.
2. If the landlord rents the premises, he remains liable for common areas such as stairs, gardens etc.
3. If the landlord grants a licence, then both are occupiers.
4. If the landlord engages an independent contractor, then the landlord remains the occupier BUT the independent contractor may be the occupier if he has a high level of control.

What are premises?

“… any fixed or moveable structure, including any vessel, vehicle or aircraft.”

Dangerous Premises

Occupiers must keep premises in a reasonably safe condition. There must be “negligence”, “defect” or “danger” with the premises for a claim to succeed.

Categories of persons on property:

Visitors

Anyone with expressed or implied permission to be on the property.

Includes permission granted by law:

ž  Police Officers and Health Inspectors.

ž  Jehovah’s Witnesses? Political Canvassers?

Robson v. Hallet (1967)

“...when a householder lives in a dwelling house to which there is a garden in front and does not lock the gate of the garden it gives an implied licence to any member of the public who has lawful reason for doing so to proceed from the gate to the front door or the back door...”

Trespassers

According to Addie v Dumbreck [1929], there is no duty of care owed to trespassers. The only duty was not to inflict harm wilfully.

Poll results: Should abortions be legalized in T&T?

I found the results to be very interesting... I'm pro-choice. 

Salary and benefit payments during business closure

Q: If a business is closing down and I am about to go on maternity leave do they still have to pay me as well as I have two weeks’ vacation pending do they have to pay me for that as well?

A: You have to receive your salary/wages as long as they can afford it. This all depends on how the business is closing down and then the priority of debt payments. There are a few terms involved in this process; i.e. insolvency (compulsory or voluntary), receivership, liquidation, bankruptcy and administration. So it depends on the category which the company falls under when closing down.

Winding-up

Salaries have secondary priority to the government debts (taxes, NIS, etc.). According to the Companies Act 1995, as amended-s.435(1)(b):

all wages or salary (whether or not earned wholly or in part by way of commission or for time or piece work) of any employee, not being a director, in respect of services rendered to the company during four months next before the relevant date;

Bankruptcy & Insolvency

If the company is bankrupt, wages have 4^th place priority according to The Bankruptcy and Insolvency Act, 2006 - s.127(d):

excluding severance, claims for wages, salaries, commissions or compensation of any employee for services rendered during the six months immediately preceding the bankruptcy, together with disbursements properly incurred by a traveling salesman in and about the bankrupt’s business, during the same period, so as not to exceed such amount as may be prescribed by Order in each case;

The law is not explicit as to whether unused vacation and maternity leave are included in debt payments, but it's a unique matter that I would love to put to the test.  

Law students: How to specialise in an area of law

Q: How do I specialize in a specific area of law?

A: In law school we're taught all of the main subjects, but specializing in one or two areas is a great thing because it makes you a Master in that field. This can be done in 4 ways (all of these are what I did):

v  Do a first degree in your chosen area before doing the Graduate LL.B./G.D.L./C.P.E. (In America I started off doing business… back when Corporate law was my focus, but after moving to London, I identified a niche area to bring back home)

v  Do specific electives during the LL.B./G.D.L./C.P.E. (I finished my business degree and went to law school and began to focus on employment law)

v  Do a Master's degree in the area (I also did modules in Human Rights and Immigration as they both relate to Employment)

v  Focus your legal career on your specific area(s) (I started a boutique consulting firm that focuses only on Employment issues www.jbemploymentconsulting.com). 

I don't trust lawyers who claim that they do everything... recently, an employment matter came to me where after taking $40,000 from his clients to send 4 letters, this south lawyer told the clients that he did not know what next to do beyond sending those letters. 99% of lawyers give the rest a bad name. 

Any Lawyer can choose to specialize in any of the following areas:

• Administrative law
• Advertising law (a real niche that needs someone in Trinidad and Tobago)
• Animal law
• Antitrust law (or competition law)
• Aviation law
• Banking law
• Business law (or commercial law); also commercial litigation
• Communications law
• Constitutional law
• Construction law
• Consumer law
• Contract law
• Copyright law
• Corporate law (or company law), also corporate compliance law and corporate governance law
• Criminal law
• Cyber law
• Employment law 
• Energy law
• Entertainment law
• Environmental law
• Family law
• Human rights law
• Immigration law
• Insurance law
• Intellectual property law
• International law
• Labour law
• Land Law
• Maritime law
• Military law
• Juvenile law
• Music law
• Patent law
• Poverty law
• Privacy law
• Sports law
• Tax law
• Tort law
• Trademark law

Public sector v private sector laws

Q: There is a common misconception in Trinidad and Tobago that our laws do not affect the private sector and is only applicable to the public sector.

A: This is an extremely erroneous belief. Contrary to the thinking of many Trinbagonians (based on the high proportion of questions stating this), legislation is actually created to regulate the private sector and in most cases, the public sector (the government) has to have a special provision in the Act stating that the specific law binds the State (public sector/government).

It is very sad when an  employee tells me that they have an issue at work, but nothing can be done because they work in the private sector. There is a high level of ignorance among employees and employers that perpetuates exploitation.

Every law on employment and labour law (industrial relations) is applicable to every private sector organisation. Know your rights!

Trust in the Trinidad and Tobago Police Service

Restoring Trust Essential for the Police Service of Trinidad & Tobago by Mark T. Jones 

Policing around the world is under pressure and public scrutiny as never before. The demands on modern policing are such that effective and accountable leadership is essential. All too often management structures are unresponsive and those in senior roles reluctant to embrace change, let alone acknowledge failings and accept responsibility for inadequacies or serious misdemeanors. Many citizens around the world are keen to know precisely what the word ‘Service’ in the title ‘Police Service’ stands for in the modern age.

To citizens of Trinidad & Tobago the story in regard to the continued deterioration of public trust in the Police Service is a familiar one. Whilst there never were Halcyon Days when all was perfect, it is clear that there is a raft of issues and concerns that cannot simply be rubbished in the media, ignored and swept under the carpet. The charge sheet certainly makes disturbing reading:

• A perceived culture of impunity
• Anecdotal evidence of collusion with criminal gangs
• Persistent rumors of extra-judicial killings
• A total absence in some quarters of courtesy and people management skills and techniques
• Poor leadership and accountability
• Increasing signs of corrupt practices
• Intimidation using threats, verbal aggression and physical assaults
• Rogue officers demanding sexual favors from both men and women
• Inadequate fitness standards that sees many officers fall well below acceptable levels for operational efficiency
• Excessive use of police vehicles that are often driven in an aggressive manner with little or no reason other than to manifest naked power. Sirens and blue lights are routinely used to excess.
• Defensive management structures that appear to manifest little or no cognizance of the notion of public service
• A tendency to go for ‘the low hanging fruit’ and ‘the quick win’ as opposed to tackling serious organized crime and those elements at a higher level who are responsible for serious criminality
• A perceived aversion to investigating white collar crime
• As a publicly funded institution there is considerable disquiet about the increased politicization of the Police Service.
• Inadequate training in regards to the current best practice concerning investigation into crimes of a sexual nature, child abuse and various forms of cyber crime. Much could be learnt in this regard by liaising with centers of excellence such as: http://ceop.police.uk/
• Racial discrimination – Certain ethnicities appear to receive preferential treatment

A knee-jerk rejection of such concerns would speak volume of the defensive mindset of some in senior roles. In a democracy we ignore perceptions, misconceptions and anxiety at our peril. The issues that various demographics, ethnicities, economic groups and even some political party leaders are prepared to admit (even if in private) deserve to be taken seriously.

It would be utterly erroneous to portray the Police Service of Trinidad & Tobago as in some way irrevocably broken. There are a great many exemplary personnel doing a first rate job often in trying circumstances. It must not be forgotten that the vast majority of officers are imbued by a desire to perform their job in a professional manner, but are occasionally failed by those in roles of responsibility. Conduct and attitude in police stations across the country varies enormously and this is often down to those in charge as well as issues concerning governance, resources, operational priorities and the pressures to massage crime & detection figures. The challenge is to demonstrate that as a public service the police are strong on value and values and low on waste and misconduct. Effective training and the drawing on best practice both locally and in the form of services that share a similar tradition is vital if trust is to be restored. The police must strive to earn the respect of all citizens, and equally the public must never lose sight of the fact that every day police officers put their lives on the line in the quest to keep us all safe and uphold the rule of law. Working to protect and serve with pride is a constant challenge and requires first rate leadership, high morale and the trust and co-operation of the very citizens that the police are expected to serve and protect. If serious progress is to be made in addressing the current ‘trust deficit’ the Police Commissioner and the Minister for National Security will need to redouble their efforts and demonstrate a far firmer grasp and candor concerning current failings. It is also imperative that the Police Complaints Authority (PCA) be given real teeth that it has thus far been denied. A strong case could also be made for the establishment of a specialist Leadership Academy, one that nurtures the core values as well as the humility needed by those called on serve in the 21st century. Finally, in view of the unique role that the Police Service of Trinidad & Tobago plays in working to uphold law and order it is high time that a national monument be erected as a permanent memorial to all police officers who have killed in the line of duty.

The challenge is demonstrating that as a public service the police are strong on value and low on waste demonstrating that as a public service the police are strong on value and low on waste.

30-Apr-2014 - 

T&T maternity rights: prenatal care

Q: I'm 5 months pregnant and I have been employed with a company for over 4 years now. Due to many complications in my pregnancy, I have to attend clinic regularly. However, my employer refuses to pay me for my clinic days because he’s not familiar with this being law. He even went as far as to get his consultant involved and apparently his consultant does not know about this either. I am beginning to think that I am the wrong one here; am I supposed to get paid for my clinic days or not?

A: Guide your employer to the Maternity Protection Act 1998:

• 7. (4) An employee who is pregnant and who has, on the written advice of a qualified person, made an appointment to attend at any place for the purpose of receiving prenatal medical care shall, subject to this Act, have the right not to be unreasonably refused time off during her working hours to enable her to keep the appointment.
• 7. (5) An employee who is permitted to take time off during her working hours, in accordance with subsection (4), shall be entitled to receive pay from her employer for the period of absence.

According to health professionals, reasonable prenatal visits should be:

• Weeks 4 to 28: 1 prenatal visit a month

• Weeks 28 to 36: 1 prenatal visit every 2 weeks

• Weeks 36 to 40: 1 prenatal visit every week

Now, if you’re having complications and your time off is more than this, then you may be hindering the operations of the company, and then I can see the employer having an issue. But that’s another complication by itself.

Cohabitation and Common-law relationships

Q: I would like to find out how long do you have to live with someone in Trinidad for the relationship to be considered common law?

A: You’re considered to be common-law as soon as you start living together (cohabiting). However, cohabitees do not obtain legal rights until they have been cohabiting for at least 5 continuous years, according to section 7 of the Cohabitational Relationships Act 1998 and section 2 of the Distribution of Estates Act 2000.

T&T police officers drinking in uniform

Q: Are police officers allowed to purchase alcohol while in uniform? I had a serious debate with a police officer friend of mine who said it’s allowed.

A: This is a clear indication that some members of the Trinidad and Tobago Police Service are absolutely clueless about their job duties and responsibilities. 

Police officers CANNOT consume alcohol while on duty/in uniform, according to the Police Service Regulations 2007:

Regulation 150(2) Without prejudice to the generality of sub-regulation (1), an officer is liable to be charged with a disciplinary offence if he commits any of the following:

(l) Drunkenness, or drug taking, that is to say, if an officer, while on or required for duty, is unfit for duty through the taking of intoxicating liquor or dangerous drugs;

(m) Drinking on duty or soliciting drink, that is to say, if an officer—

(i) drinks intoxicating liquor while he is on duty; or 

(ii) demands, or endeavours to persuade any other person to give him, or to purchase or obtain for him, any intoxicating liquor while he is on duty;

(iii) reports for duty under the influence of intoxicating liquor or with the odour of intoxicating liquor on his breath;

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It is also illegal to sell alcohol to a police officer, according to the Police Service Act 2006, as amended.

Section 61(1) A person who—

(a) knowingly harbours or entertains or, either directly or indirectly, sells or gives any intoxicating liquor to a police officer who is on duty;

(b) knowingly permits a police officer to remain in his house, except in case of extreme urgency, when on duty; or  

(c) by threats or by offer of money, gift, intoxicating liquor or any other thing, induces or endeavours to induce a police officer to commit a breach of his duty, 

is liable on summary conviction to a fine of fifteen thousand dollars and to imprisonment for one year.

Trinidad and Tobago police search powers

Q: What are the laws on car searches without a warrant?

A: The police can stop and search any person, vehicle, and anything in or on the vehicle for certain items, but they must have reasonable grounds (e.g., smell of marijuana or suspicious behaviour by occupants) for suspecting that they will find evidence (weapons, drugs, stolen property, masks, gloves, etc.). Outside of this, a warrant is required under Section 41 of the Summary Courts Act 1918, as amended.

However, if a crime has occurred and the police have been given permission to set up a road block, they can stop and search you without having reasonable grounds for suspecting they will find the aforementioned items.

The police can become trespassers if they do not act within the law because without their legal powers, they are considered regular citizens. This has been established since Entick v Carrington [1765], where Lord Camden CJ said: Our law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s [property] without his [permission]; if he does, he is a trespasser, though he does no damage at all; if he will tread upon his neighbour’s ground, he must justify it by law…

This case has set a precedent all over the world, even being the reason behind the Fourth Amendment to the United States Constitution.

Happy 52nd Independence Day Trinidad and Tobago

This is the speech delivered by Dr. Eric Williams -the first Prime Minister of Trinidad and Tobago- on August 31, 1962, the first day of Trinidad and Tobago's independence from Great Britain.

Fellow Citizens,

It is a great honour to me to address this morning the citizens of the Independent Nation of Trinidad and Tobago as their first Prime Minister. Your National Flag has been hoisted to the strains of your National Anthem, against the background of your National Coat of Arms, and amidst the beauty of your National Flower.

Your Parliament has been inaugurated by Her Royal Highness the Princess Royal, the representative of Her Majesty the Queen. You have your own Governor General and your own Chief Justice, both appointed on the advice of your own Prime Minister. You have your own National Guard, however small.

You are now a member of the Commonwealth Family in your own right, equal in status to any other of its members. You hope soon to be a member of the World Family of Nations, playing your part, however insignificant, in world affairs. You are on your own in a big world, in which you are one of many nations, some small, some medium size, some large. You are nobody's boss and nobody is your boss.

What use will you make of your independence? What will you transmit to your children five years from today? Other countries ceased to exist in that period. Some, in much less time, have become totally disorganised, a prey to anarchy and civil war.

The first responsibility that devolves upon you is the protection and promotion of your democracy. Democracy means more, much more, than the right to vote and one vote for every man and every woman of the prescribed age. Democracy means recognition of the rights of others.

Democracy means equality of opportunity for all in education, in the public service, and in private employment--I repeat, and in private employment. Democracy means the protection of the weak against the strong. Democracy means the obligation of the minority to recognise the right of the majority. Democracy means responsibility of the Government to its citizens, the protection of the citizens from the exercise of arbitrary power and the violation of human freedoms and individual rights. Democracy means freedom of worship for all and the subordination of the right of any race to the overriding right of the human race. Democracy means freedom of expression and assemble of organization.

All that is Democracy. All that is our Democracy, to which I call upon all citizens to dedicate themselves on this our Independence Day. This is what I meant when I gave the Nation its slogan for all time: Discipline, Production, Tolerance. Indiscipline, whether individual or sectional, is a threat to democracy. Slacking on the job jeopardizes the national income, inflates costs, and merely sets a bad example. The medieval churchmen had a saying that to work is to pray. It is also to strengthen our democracy by improving our economic foundations.

That democracy is but a hollow mockery and a gigantic fraud which is based on a ruling group's domination [of] slaves or helots or fellaheen or second class citizens or showing intolerance to others because of considerations of race, colour, creed, national origin, previous conditions of servitude or other irrationality.

Our National Flag belongs to all our citizens. Our National Coat of Arms, with our National Birds inscribed therein, is the sacred thrust of our citizens. So it is today, please, I urge you, let it always be so. Let us always be able to say, with the Psalmist, behold, how good and how pleasant it is for brethren to dwell together in unity.

United at home in the common effort to build a democratic Nation and ostracize outmoded privileges, let us present to the outside world the united front of a Nation thinking for itself, knowing its own mind and speaking its own point of view.

Let us take our stand in the international family on the basic principles of international rectitude. When our time comes to vote, let it always be a vote for freedom and against slavery, for self-determination and against external control, for integration and against division.

Democracy at home and abroad, the symbol of it is our Parliament. Remember fellow citizens, we now have a Parliament, we no longer have the colonial assemblies which did not have the full rights of a Parliament of a sovereign country. The very name "Parliament" testifies to our new Independent status. By the same token, however, we at once become the object of comparison with other Parliamentary countries, inside and outside the Commonwealth.

This is a consideration which involves not only the Members of Parliament but also the individual citizen. The Members of Parliament have the traditional Parliamentary privileges guaranteed in the Constitution. The Speaker, the symbol of the power of Parliament, has his status guaranteed in the Order of Precedence. We shall soon have a Privileges Bill protecting and prescribing the powers of Parliament itself. Measures are being taken to establish the responsibility of Parliament in the field of external relations.

The Constitution recognises the position of the Leader of the Opposition and the normal parliamentary convention of consultation between Government and Opposition are being steadily developed and expanded. The Constitution itself, Independence itself, represent the agreement of the two political parties on the fundamental question of national unity. The ordinary citizen must recognise the role of the Parliament in our democracy and must learn to differentiate between a Member of Parliament, whom he may like or dislike, and the respect that must be accorded to that same Member of Parliament ex-officio.

I call on all citizens from now on to accord the highest respect our Parliamentary system and institutions and to our Parliament itself.

Democracy, finally, rests on a higher power than Parliament. It rests on an informed and cultivated and alert public opinion. The Members of Parliament are only representatives of the citizens. They cannot represent apathy and indifference. They can play the part allotted to them only if they represent intelligence and public spiritness.

Nothing has so demonstrated in the past six years the capacity of the People of Trinidad and Tobago than their remarkable interest in the public affairs. The development and expansion of that interest is the joint responsibility of the Government, the Parliament, the political parties and relevant civic organisations.

Those, fellow citizens, are the thoughts which, on my first day as Prime Minister, I wish to express to you on Independence Day. Your success in organising the Independence which you achieved will exercise a powerful influence on your neighbours with all of whom we are likely to have close associations in the next few years, the smallest and nearest, as part of our Independent Unitary State, the larger and more distant as part of the wider and integrated Caribbean community. Problems of difficulties there will be. These are always a challenge to a superior intelligence and to strength of character.

Whatever the challenge that faces you, from whatever quarter, place always first that national interest and the national cause. The strength of the Nation depends on the strength of its citizens. Our National Anthem invokes God's blessings on our Nation, in response to those thousands of citizens of all faiths who demanded God's protection in our Constitution. Let us then as a Nation so conduct ourselves as to be able always to say in those noblest and most inspiring words of St. Paul, "By the Grace of God we as people are what we are, and His Grace in us hath not been void.

Truancy and Home-schooling Law

Q: Who is responsible for a child regularly missing school; the parent or school? What about if it's for home-schooling?

A: According to s.77 of the Education Act 1996, as amended, it is the duty of parents to secure the education of their children. Failure to do this can result in a fine of TT$75, in accordance with s.83(1)

Home-schooling is legal according to s.78(a), but permission is required from the Minister of Education, which is based on his/her satisfaction with the home-schooling curriculum. 

Offences under the Motor Vehicles and Road Traffic Regulations

A lot of road traffic tickets can be beaten with the right advice. Every time I go to Magistrate's Court I see the errors on tickets, but regular citizens don't realise that a lot of those mistakes can result in a ticket being thrown out.

With that being said, I'm hoping the list below will help persons determine whether or not the ticket received from a Police Officer or Traffic Warden is fair and legal. It will also assist in ensuring that your vehicle is fully compliant with the motor vehicle and road traffic laws of Trinidad and Tobago.

The Motor Vehicles and Road Traffic Regulations are contained in the Motor Vehicle and Road Traffic Act 1934, as amended.

  Offences Under the the Motor Vehicles and Road Traffic Regulations