– Nandlall says imposition of fines and penalties illegal
By Brushell Blackman
As the parking meter saga continues, Town Clerk Royston King was yesterday contacted
by this newspaper on whether the related by-laws have been gazetted.
Mr. King responded in the affirmative, stating that, “Yes they were gazetted on the 3rd February 2017”.
However a subsequent perusal of the relevant documentation showed that nothing about the parking meter by-laws has been gazetted.
A check at the library at Parliament Buildings, where all Official Gazettes are filed, revealed that there are no records of any such Gazette. An employee there explained that Official Gazettes are printed on Saturdays, and if indeed those by-laws were filed, they would have been documented in the latest gazette dated 4th February, 2017.
The employee explained that sometimes Gazettes can be holed up at the Ministry of Presidency before they get over to Public Buildings. This publication also visited the Ministry of Presidency to ensure that all possible places that the Gazette could be, were covered.
At the Ministry of Presidency, the person in charge said that no such Gazette is there. Further, a copy of the latest Gazette revealed that nowhere in that document is there any mention of the parking meter by-laws.
Strangely, there was an item from the city council that was gazetted, but this was for a 10 percent increase on property tax. So if indeed the by-laws were gazetted that day, it should have been there with the property tax increase notice.
This revelation is now raising serious questions about the M&CC, and whether the parking meter initiative is even legal. It begs the question as to where these by-laws were gazetted.
Furthermore, one individual that is opposed to the parking meter initiative believes that some of the blame should be laid at the feet of Minister of Local Government Ronald Bulkan. As it stands there are no records indicating that this was done, and the initiative still got the green light from Bulkan.
Large sections of society have been up in arms about the pay for parking initiative, and the apparent draconian manner in which fines and penalties are imposed.
Since the by-laws have not been gazetted, the fees and penalties cannot be deemed as legally enforceable.
Section 21 of the Interpretation and General Clauses Act Cap 2:01 states, “All proclamations, rules, regulations, orders and by-laws shall be published in the Gazette and shall come into operation on the date of publication unless it is otherwise expressly provided that they shall come into operation on some other date.”
Further, Section 21(3) speaks to the retrospective operation of subsidiary legislation of which by-laws is one. The law says, “Subsidiary legislation may be made to operate retrospectively to any date which is not earlier than the coming into operation of the Act under which the subsidiary legislation is made: Provided that no person shall be made or shall become liable to any penalty whatsoever in respect of any act committed or the failure to do anything before the date on which such subsidiary legislation was published in the Gazette.”
Based on the law, it does not follow that persons should be subjected to any new charges or penalties, save for when such changes have officially becoming law, which would require being gazetted.
As such, the collection of fees paid for parking and the penalties for not paying fees can be deemed as illegal acts. Additionally, the by-laws, according to Minister of State Joseph Harmon are currently before the Minister of Legal Affairs and Attorney-General Basil Williams for review.
Meanwhile, former Attorney-General Anil Nandlall in a Facebook post on the issue said that if these by-laws are now being reviewed by Williams, then it means that they have not been signed by the relevant Minister nor published in the Official Gazette.
If the by-laws are not indeed ‘law’ then it raises the issue whether persons who would have already paid for parking and parking fines for overstaying would be refunded their money.
According to Nandlall, the collection of monies as penalties by those administering these parking meters is not only unlawful, but may amount to obtaining monies by fraud and false pretences, of which both are serious criminal offences.
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