Our indomitable and irrepressible Mayor of Port-of-Spain has once again managed to find himself in a starring role, landing in the centre of controversy and bacchanal with his attempts to deal with illegal parking. This time, he has managed to incur the wrath and ire of a wide cross-section of the population from Government Ministers down to the ‘man (illegally parked) in the street’, as the nation looks on at this local soap opera called “Wrecks and the City”.
Now, you just have got to love Louis for his hands-on pitbull in a China shop, take-no-prisoners approach to cleaning up the city and his trying to restore law and order in what at times can be a rather lawless and disorganised society. But as every good pitbull owner knows, there are times when there is need for the muzzle, otherwise you lose all control. This is exactly what happened to our Mayor Supremo, when his unbridled exuberance and zealous over-enthusiasm got the better of him and put him in a wreck of a mess in the hot-spot zone of Woodbrook, where there is definitely Sex and the City.
Now, we need to be clear on this, as there has been a welter of public opinions back and forth on this issue with Mr Aboud and Doma weighing in with their views on the effect of wrecking literally wrecking their businesses, and on the other hand you also have Local Government Minister Chandresh Sharma making it clear that he disagrees with the Mayor’s gung ho approach and devil-may-care attitude.
The fact is that the law provides rules and regulations governing parking in and around our cities, and the primary source of legislation in this regard is the Motor Vehicles and Road Traffic Act Chapter 48:50 of the Laws of Trinidad and Tobago which provides at s108(1) as follows:
“Where a vehicle is parked in contravention of this Act or of any Regulations….made thereunder, or is left on any road in such a manner that it is likely to cause any obstruction to persons lawfully using any such road, any member of the Police Service may… if the driver or other person in control or in charge of such vehicle cannot be found or refuses to remove it when required to do so, remove such vehicle or arrange for it to be removed from the place where it is parked, to a place of safe custody either by towing or driving the vehicle or in such other manner as he may think necessary.”
So there is no doubt that wrecking is not illegal, the law provides for it. The law also spells out that once removed, the vehicle shall not be released to the owner unless a fee is paid to the Commissioner of Police. This fee, as per the 2010 Amendment, is $300 for removal charges and $200 for each day or part of a day that the vehicle is kept in custody, making a minimum total of $500.
Now, Mayor Lee Sing has touted a fee of $1,300 and as well intentioned as he may have been, we are still a society which adheres to the rule of law and whatever actions the Mayor takes in this regard must be found within the four corners of the law.
Despite several searches, it appears difficult to find legal justification for this fee, nor does there appear to be any legislation setting out this $1,300 fee. In subsequent statements, it appears the Mayor was pulling back a bit and saying that part of this fee was for administrative expenses for the City Corporation, which by simple calculation should be $800 as “Administrative Expenses”.
In this regard, the Mayor is invited again to show the population which legislation specifies that he can impose this fee upon citizens even as “Administrative Expenses”. Who determines the quantum of this “Administrative Expense” and into which fund does it go and under what accounting heading is it set out in the law? For someone who is never shy of a microphone or never short on opinions, the Mayor has been curiously silent in offering explanations in this regard. If he has done his research and finds out that he is wrong, he should simply admit that and let’s move on because otherwise he runs the risk of costing the State in the long run, a whole lot of pain and unnecessary expense if anyone decides to challenge this issue legally.
There is precedent in this regard as the reported case of a San Fernando Attorney Learie Alleyne Forte–v-Attorney General explored this issue to the fullest, going all the way to the Privy Council. In brief, Mr Alleyne Forte had brought a constitutional motion against the State challenging the constitutionality of the law which provides for illegally parked vehicles to be wrecked. This arose from a scenario where his Nissan Sunny car had been wrecked for being “illegally parked” on Lewis Street in San Fernando and Mr Alleyne Forte enthusiastically challenged this through the court system, all the way up to the Privy Council claiming that this was an infringement of his constitutional rights to the enjoyment of property.
The Judicial Committee of the Privy Council in dismissing his Appeal with costs, held that:
“Neither the removal by the police of a vehicle which had been illegally parked and the consequential temporary loss of the vehicle, nor the requirement to pay a reasonable sum for the removal of the vehicle and for its custody constituted an infringement of the appellant’s right to the enjoyment of his property.”
So it is clear that wrecking, if done properly, is legal and that there can be no constitutional challenge to its legality, once it is done within the limits of the law and the Privy Council emphasised the constitutionality of having “to pay a reasonable, statutorily prescribed sum by way of removal and custody charges”.
Charging a fee higher than the law provides is not a “statutorily prescribed sum” and refusing to allow the release of vehicles unless this illegal fee is paid, opens up the State or the Port-of-Spain City Corporation to a nice legal challenge, if someone pays the “statutorily prescribed sum” of $500 and no more, and the police keep holding on to his vehicle until the Mayor’s $800 administrative fee is paid.
Wrecking is not as simple an issue as people may think, because there is also the onus on the Police to show that their actions were justified and legal. In the case involving two policemen Arietas–v- Windsor, Corporal Windsor’s car had been illegally parked and was wrecked without the police sergeant in charge of the wrecking crew, attempting to make any enquiries as to who was the owner of the car.
Windsor went to the police station and under protest from the other police officers took back his car and drove away without paying the impound fees. He was subsequently charged by Arietas for larceny of his own motor vehicle and at the end of the trial the magistrate dismissed the larceny charge on the ground that Windsor remained the owner of the car and could not be convicted of stealing his own car. The prosecution appealed and the Court of Appeal dismissed the appeal on the grounds that the police had not shown that the owner/driver could not be found, as is required by law before a wrecking could be legal in accordance with s108, “if the driver or other person in control or in charge of such vehicle cannot be found or refuses to remove it when required to do so”.
Therefore, if the wrecking itself occurred illegally, there could be no question of Corporal Windsor stealing back his own vehicle. The Court of Appeal, however, noted that had the wrecking been legal, the charge of larceny against Windsor for stealing back his own car might have succeeded, as he had taken it out of the custody of the police. Stay tuned for the next exciting episode in the unfolding drama of “Wrecks and the City.”
Extracted From: Trinidad Guardian Newspaper