Trinidad and Tobago General Elections

Q: What is the law regarding the date of general elections in Trinidad and Tobago?

A: According to the Trinidad and Tobago Constitution, a normal Parliamentary term is 5 years.

68. (1) The President, acting in accordance with the advice of the Prime Minister, may at any time prorogue or dissolve Parliament.

(2) Subject to subsection (3), Parliament, unless sooner dissolved, shall continue for five years from the date of its first sitting after any dissolution, and shall then stand dissolved.

Section 68(3) allows the President to extend the term by 12-month periods for up to 5 years in times of war.

This Parliament’s first sitting was on Friday June 18, 2010 at 1:30pm. Therefore, the 5 years will end on Wednesday June 17. However, the general elections can be called at any time within three months of the dissolution of Parliament:

69. (1) A general election of members of the House of Representatives shall be held at such time within three months after every dissolution of Parliament as the President, acting in accordance with the advice of the Prime Minister, shall appoint.

History of elections:

The People of Trinidad and Tobago voted for the first time in what could be designated a general election on Saturday 7th February, 1925.

.

Over the decades, Trinidad & Tobago was to go through several constitutional (political) developments, until the P.N.M’s coming into office in 1956. Between 1925 and 1956, there were several General Elections held: 1928, 1933, 1938, 1946 and 1950. There was supposed to have been General Elections in 1943, but it was suspended until after the War, which resulted in the General Elections of 1946.

During this period (1925 to 1950), adult franchise was granted for the 1946 General Elections, with the age of majority then being 21 years of age in order to vote. This was to be further reduced to 18 years of age with the Republican Constitution of 1976.

In the meantime, the General Elections for 1955 were constitutionally due by September, 1955. However, the Constitution Reform Committee, had by Majority Report, recommended postponement.  This postponement, with an election date to be set, had to be set officially by the Colonial Office, in London, which subsequently directed the Governor that the term of the Legislative Council be extended to for an eight-month period, operating up to the 26th May, 1956.  This meant that with the minimum four-month period for holding elections after the dissolution of the Legislative Council, would mean that elections would be held on the 26th of September, 1956.  However, because that date would occur on a mid-week day, Wednesday, and since Monday is always more convenient for elections, the date for Election Day shifted to the start of the working week of Monday the 24th of September, 1956.

Since then, the following are the dates of general elections:

1961 - General elections were held on 4 December. The result was a victory for the PNM, which won 20 of the 30 seats.

1966 - General elections were held on 7 November. The result was a victory for the PNM, which won 24 of the 36 seats.

1971 - General elections were held on 24 May. The result was a victory for the PNM, which won all 36 seats.

1976 - General elections were held on 13 September. The result was a victory for the PNM, which won 24 of the 36 seats. 

1981 - General elections were held on 9 November. The result was a victory for the PNM, which won 26 of the 36 seats

1986 - General elections were held on 15 December. The result was a victory for the NAR, which won 33 of the 36 seats.

1991 - General elections were held on 16 December. The result was a victory for the PNM, which won 21 of the 36 seats

1995 - Early general elections were held on 6 November after the ruling PNM had seen its majority reduced to a single seat due to a defection and a lost by-election. The results saw the PNM and the UNC both won 17 seats. Although they had received fewer votes, the UNC was able to form a coalition with the two-seat National Alliance for Reconstruction, allowing UNC leader, Basdeo Panday, to become the country's first Indo-Trinidadian Prime Minister.

2000 - General elections were held on 11 December. The result was a victory for the UNC, which won 19 of the 36 seats. 

2001 - Early general elections were held on 10 December, after the ruling UNC lost its majority in the House of Representatives following four defections. However, the election results saw the UNC and the PNM both win 18 seats. Although the UNC received the most votes, President A. N. R. Robinson nominated PNM leader Patrick Manning as Prime Minister.

2002 - Early general elections were held in Trinidad and Tobago on 7 October, after PNM leader, Patrick Manning, had failed to secure a majority in the hung parliament produced by the 2001 elections. This time the PNM was able to secure a majority, winning 20 of the 36 seats.

2007 - General elections were held on 5 November. The PNM party under the leadership of Patrick Manning won 26 of the 41 seats in Parliament. The UNC-A, under the leadership of Basdeo Panday won the 15 remaining seats. The COP did not win any seats

2010 - A general election was held on May 24. The date of the general elections was announced by Prime Minister Patrick Manning on April 16, 2010, via a press release. The election was called over two years earlier than required by law. Polls showing that the UNC-led opposition coalition was likely to win the election were confirmed by the subsequent results.

The final outcome has the People's Partnership winning 29 seats, and the PNM winning 12 seats. As a consequence of the People's Partnership's win, Kamla Persad-Bissessar of the People's Partnership coalition was elected Trinidad and Tobago's first female Prime Minister.

2015 – General elections were held on 7 September. The result was a victory for the PNM, which won 23 of the 41 seats.

2020 - General elections are carded for Monday 10th August 2020.

R.I.P. George Floyd - Black Lives Matter

Q:

Do you agree with the charges laid against the police officer who killed George Floyd in Minneapolis, Minnesota on 25th May 2020?

 

A:

I am in full agreement with both charges.

 Charge #1: 2^nd Degree Manslaughter

Minnesota Statute 609.205 – there are five (5) categories of 2^nd degree manslaughter, all of which carry a maximum prison sentence of ten (10) years or a $20,000 fine; however, this post will only focus on the offence applicable to the killing of George Floyd:

• A person who causes the death of another by any of the following means is guilty of manslaughter in the second degree…

(1)    by the person's culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another…

 

Charge #2: 2^nd Degree Murder (upgraded from 3rd degree murder)

Minnesota Statute 609.19 - there are two types of 2^nd degree murder, both of which carry a maximum prison sentence of forty (40) years:

•  Intentional Second degree murder by drive-by shooting is exactly as it sounds.
•  Unintentional second degree murder has two subcategories:

(1) causes the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense** other than criminal sexual conduct in the first or second degree with force or violence or a drive-by shooting; or

**[for this category to apply, first proving the felony offence of “manslaughter” is mandatory]

 (2) causes the death of a human being without intent to effect the death of any person, while intentionally inflicting or attempting to inflict bodily harm upon the victim, when the perpetrator is restrained under an order for protection and the victim is a person designated to receive protection under the order.

[This subcategory clearly doesn’t apply]

 Former charge – 3^rd Degree Murder

Minnesota Statute 609.195 – there are two (2) categories of 3rd degree murder, both of which carry a maximum prison sentence of 25 years; however, this post will only focus on the offence applicable to the killing of George Floyd:

(a) Whoever, without intent to effect the death of any person, causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life…

 The issue with the 3rd degree murder charge is proving that the defendant was, at the time of the incident, “evincing a depraved mind”. What exactly does this term mean? Well, in the Supreme Court of Minnesota case of Statev. Mytych 194 N.W.2d 276 (1972), the judges stated that “a mind which has become inflamed by emotions, disappointments, and hurt to such degree that it ceases to care for human life and safety is a depraved mind.”

 I don’t think it will be possible to prove this aspect of the charge for Chauvin, although there have been comparisons to the 2019 conviction of former Minneapolis police officer, Mohamed Noor, for 3^rd degree murder and 2^nd degree manslaughter in the 2017 shooting death of Australian-born, Justine Ruszczyk a month before her wedding. I maintain that the two circumstances are vastly different.

#JusticeForGeorgeFloyd

#BlackLivesMatter

 

The Illegality Defence

Q:

If I am right in a vehicular accident, but didn’t realise that my insurance policy had lapsed, can I sue the other driver for damages?

A:

Ex turpi causa non oritur actio ("from a dishonorable cause, an action does not arise") is a brocard (legal Latin terminology) that refers to the fact that no action may be founded on illegal or immoral conduct. 

Driving without insurance is illegal, contrary to the Motor Vehicles Insurance

(Third-Party Risks) Act 1933, as amended:

3. (1) Subject to this Act, it shall not be lawful for any person to use, or to cause or permit any other person to use, a motor vehicle or licensed trailer on a public road unless there is in force in relation to the user of the motor vehicle or licensed trailer by that person or that other person, as the case may be, such a policy of insurance or such a security in respect of third party risks as complies with the requirements of this Act.

(2) If a person acts in contravention of this section, he is liable to a fine of seven thousand, five hundred dollars and to imprisonment for two years, and a person convicted of an offence under this section shall (unless the Court for special reasons thinks fit to order otherwise and without prejudice to the power of the Court to order a longer period of disqualification) be disqualified for holding or obtaining a driving permit under the Motor Vehicles and Road Traffic Act for a period of three years from the date of the conviction.

As a result, if the defendant relies on this defence, your claim will be unsuccessful because had you not acted illegally by driving without insurance, the accident would not have occurred.  

Consumer rights: no return, no refund

Q:

Is a "No Refund" or "All Sales Final" store policy legal in Trinidad & Tobago?

A:

Sale of Goods Act 1895, as amended:

• *Section 15(1) - Where there is a contract for the sale of goods by description, there is an implied condition that the goods shall correspond with the description
• *Section 16(2) Where the seller sells goods in the course of a business, there is an implied condition that the goods supplied under the contract are of merchantable quality, except:
• (a) as regards defects specifically drawn to the buyer’s attention before the contract is made; or
• (b) if the buyer examines the goods before the contract is made, as regards defects which that examination ought to reveal.
• *Section 20(d)(ii) - A time frame should be given for returns, but if there is none, the customer has a right to return within a "reasonable time".

 Unfair Contract Terms Act 1985:

• *Section 8(1)(a) - a seller cannot contractually exclude or restrict liability for defective goods, and/or
• (b) negligence of a person concerned in the manufacture or distribution (e.g., delivery drivers) of the goods

Presumption of Innocence

Q:

I was charged with a relatively serious offence; can you help me prove my innocence? 

A:

If you’ve only been charged with an offence, it is NOT your job to prove your innocence.

 In early legal times, this rule was expressed as a brocard (a legal principle written in Latin): ei incumbit probatio qui dicit, non qui negat — proof lies on him who asserts, not on him who denies.

 Now, in a contemporary English legal system, the ‘presumption of innocence’ or the fact that a defendant is ‘innocent until proven guilty’ is a legal principle that places the entire burden of establishing guilt beyond a reasonable doubt on the prosecution/state/government.

 If guilt has seemingly been established due to circumstantial evidence like “consciousness of guilt” or direct evidence like CCTV footage, only then will you and your legal team have to dispute what has been presented and “prove your innocence”.

 

 

Adoption of children in Trinidad & Tobago

Q:

What is the procedure for adopting a child in Trinidad and Tobago?

A:

The Children’s Authority of Trinidad and Tobago is the only organisation that can legally provide adoption services. Adoptions are open to both nationals and non-nationals [s. 38]; all of which is governed by the Adoption of Children Act 2000, as amended:

s. 9(1) No person other than the Authority shall make arrangements for the adoption of a child.

s. 9 (2) Any other person who attempts to arrange for the adoption of children is liable on summary conviction to a fine of ten thousand dollars or to imprisonment for two years.

 

There are two types of adoptions available in T&T; open and closed.

• Open adoption is where biological parents are active in the adoption process. Names and contact information are shared both ways with the potential adoptive parent, but the level of contact between parties would depend on what the potential adoptive parent(s) is(are) willing to accommodate. This level of contact sometimes continues after the adoption is finalised.
• A closed adoption is where neither the adopter nor the birthparents know each other, nor do they ever meet. Most times no information is shared and is kept sealed by the Court.

 

Step #1

If interested in becoming an adoptive parent, an ‘expression of interest’ should be submitted to the Children’s Authority’s headquarters located at #35A Wrightson Road, Port of Spain, via email at adoption (at) ttchildren.org, or via telephone 627-0748 or 623-7555.

 

Step #2

After ‘expression of interest’ is acknowledged, the applicant will be subjected to a screening process, inclusive of questions pertaining - but not limited- to marital status, date of birth/age, ethnicity, sex, employment, financial status, educational background, physical health, mental health, criminal history, etc. Also explored would be the reason for wanting to become an adoptive parent.

 

This information would guide what type of application best suits the applicant’s situation; whether it’s a single or married couple (the law currently only recognises heterosexual married couples). A single application can be made by both females and males, and does not discriminate against single male applicants.

 

Step #3

Once the preliminary assessment is satisfied, the potential adoptive parent would then undergo a comprehensive psychosocial assessment which includes home visits and background checks on all members of the household. This assessment leads to a comprehensive report prepared to be submitted to the Adoption Committee within the Authority, who would give the approval for the applicant to be a Prospective Adoptive Parent (PAP) and placed on the adoption list. Once approval is granted, the applicant attends mandatory training provided by the Authority, which covers in-depth information on the adoption process, caring for children with special needs, caring for children who were abused, etc.

 

Step #4

After the training, PAPs are then put through the matching process, which is based on the PAP's strengths identified in the previous assessments. The PAPs gives a description of the type of child they require inclusive of age, sex, ethnicity, skin colour, religious backgrounds, types of behaviours PAPs can deal with, etc. The PAP's requirements are then matched with the children who have been freed for adoption by the court [s.15]. If there is a match, the PAP would then be briefed on the child’s history.

Step #5

Once both parties agree, a first interaction experience is done. This is the first time the PAPs would meet the potential adoptee. The adoption process is an extremely emotional one so PAPs are reminded that even though they may have seen pictures of the child, the child has no prior knowledge of the PAPs. The adoptee’s reaction to the PAPs is very uncertain and may go either way. After this first encounter, both parties are debriefed, whereby there are discussions on emotions felt during the session, especially the child’s reaction to the PAP [s. 22].

 

Step #6

Once all parties are satisfied with the process thus far then the PAPs are granted a probationary period by the Adoption Committee. This temporary placement (probationary period) can last up to six (6) months [s. 12(1) and 19(1)], but varies depending on the details of the case. Once the probationary period is successful, an application is then made to the Court endorsed by the Children’s Authority of Trinidad and Tobago. The Court has the final decision on all adoptions. Once the application satisfies the court a final decision is made [s. 18 and 25]. After the adoption is finalised, the Children’s Authority continues to monitor and evaluate the placement to ensure that the placement continues to meet the needs of the child and or children.

 

Coronavirus Layoffs or Retrenchment?

Q:

If I cannot afford to pay salaries as a result of declining revenue because of government restrictions on the operation of my business due to the outbreak of the novel coronavirus (COVID-19) pandemic, should I retrench my employees?

 A:

If you absolutely cannot afford to continue paying employees, I would not recommend a retrenchment if your intention is to temporarily suspend operations until restrictions are lifted.

I’ll begin with my recommendation of a “temporary layoff” and support it with a quote by one of the most respected past presidents of the Industrial Court - His Honour Mr. Addison Masefield Khan - from page 5 of a 1991 TIWU v Consolidated Appliances Limited judgement:

“The practice of a temporary lay-off is well recognised in industrial relations practice. A temporary layoff is a remedy which may be utilised by an employer to obtain relief where circumstances beyond his control warrant its implementation. It is a right which an employer may use only when the circumstances demand it. It must not be abused or be as a result of a whimsical decision. It must be required by the circumstances, which must be beyond the control of the employer and not of his own making.”

Most importantly for an employer suffering from significantly reduced revenue, with a “temporary layoff” there is no legal obligation for an employer to pay employees during the period, however, with retrenchment, severance payments must made to retrenched employees within a certain period.

In addition to that and a few other reasons, I would not recommend retrenchment mainly because it is governed by the Retrenchment and Severance Benefits Act 1985, which means that there are strict legal obligations that must be followed. For example:

Section 4(1) – if five (5) or more employees are being retrenched, each employee, the Minister of Labour and the recognised majority union (if there is one) must be given written notice that includes:

·         Names and position

·         Length of service and current salary

·         Reasons for redundancy

·         Proposed date of termination

·         Criteria used for selection of workers to be retrenched

Section 6 - minimum 45 days’ notice (only for 5 or more)… or payment in lieu of the notice period.

Section 18(3) – employees must be paid for their years of service.

• Employees paid daily, weekly & fortnightly must be paid two (2) weeks’ wages per year for 1 - 4 years’ service and then three (3) weeks’ wages per year for service of 5 years and more
• 
  
• Employees paid monthly must receive 1/2 month’s salary per year for 1 – 4 years’ service and then 3/4 month’s salary per year for service of 5 years and over

Section 22 - stipulates that severance payments must be made no later than thirty (30) days after the last day of the notice period mentioned in section 6.

Section 25(1)(a) - A person who contravenes the provisions of this Act is guilty of an industrial relations offence within the meaning of the Industrial Relations Act and liable—

(a) in the case of an employer, to a fine of ten thousand dollars; 

Now that you have all the information, the choice is yours.

Vehicular Manslaughter (Death by Dangerous Driving)

Q:

Recently, a 10-year-old girl was hit and killed on the Priority Bus Route by a car allegedly driven by a police officer attached to the Barataria Police Station. Because he was apparently using the PBR illegally, will he be charged for murder?

 

A:

In order for the driver to be charged with murder, it will have to be proven that he deliberately hit and killed this little girl. If that can’t be proven, the more likely offence will be Vehicular Manslaughter, which is legally defined as the crime of causing the death of a human being due to illegal driving of an automobile.

In Trinidad & Tobago, the official archaic charge for this offence is “Causing Death by Dangerous Driving” according to section 71 of the Motor Vehicle and Road Traffic Act 1934, as amended:

71. (1) Any person who causes the death of another person by driving a motor vehicle dangerously on a road, commits an offence and is liable on conviction on indictment to imprisonment for fifteen (15) years.**

(2) A person convicted of an offence under this section shall, without prejudice to the power of the Court to order a longer period of disqualification, be disqualified for a period of fifteen (15) years from the date of the conviction from holding or obtaining a driving permit, and on a second conviction for a like offence he shall be permanently disqualified from holding or obtaining a driving permit.

Of course, “dangerously” is the operative word in the offence, which means that there is no Vehicular Manslaughter without clear evidence of dangerous driving… so what exactly is “dangerous driving”?

According to section:

71-B. (1) For the purposes of sections 71 and 71A a person is to be regarded as driving dangerously if—

 (a) the way in which he drives falls below what would be expected of a competent and careful driver; and

 (b) it would be obvious to a competent and careful driver that driving in that way would be dangerous.

The definition proffered in this Trinidad & Tobago legislation is clearly quite broad and very vague, so in order to further explain, some examples from the well-referenced Blackstone's Criminal Practice include:

• ·        Speeding
• ·        Driving under the influence of alcohol or drugs
• ·        Aggressive driving - such as sudden lane changes, cutting into a line of vehicles or driving too close to other vehicles
• ·        Disregard of traffic lights and road signs
• ·        Unsafe overtaking
• ·        Carrying dangerous loads
• ·        Driving with impaired ability – e.g. foot or hand in a cast
• ·        Driving when tired
• ·        Knowingly driving a vehicle with a dangerous defect
• ·        Using a hand-held mobile phone or other hand-held electronic equipment, or other distractions such and reading a newspaper/ map, etc.

Administratively, it is also important to comply with the requirements for the limitation time-frames during when charges must be brought against an accused driver:

73. (1) Subject to subsections (2) and (3), where a person is prosecuted for an offence under any of the preceding sections relating respectively to the maximum speed at which motor vehicles may be driven, dangerous driving or causing death by dangerous driving, and to careless driving, he shall not be convicted UNLESS either—

 (a) he was warned on the day the offence was committed that the question of prosecuting him for an offence under some one or other of the sections aforesaid would be taken into consideration; or

 (b) within fourteen days of the commission of the offence a summons for the offence was served on him; or

 (c) within the said fourteen days a notice of the intended prosecution specifying the nature of the alleged offence and the time and place where it is alleged to have been committed was served on or sent by registered post to him or to the person registered as the owner of the vehicle at the time of the commission of the offence.

**Although the prescribed penalty is a maximum sentence of fifteen (15) years imprisonment, conviction of this offence is unlikely to result in the max sentence. Here are some examples of persons convicted of this offence in recent times:

• ·        Saddiq Ali was sentenced in January 2020 to 1 year and 11 months imprisonment
• ·  Jason Samaroo was sentenced in April 2019 to 11 months and two weeks imprisonment
• · Jairon Phillips was sentenced in Tobago in October 2016 to 18 months imprisonment