The Minister doesn’t have the authority to revoke the by-laws

Mar 23, 2017 Features / Columnists, Peeping Tom

The parking meter contract may be back sooner than we think. The Movement Against Parking Meters should therefore not be too congratulatory of the government for the action which it is said to have taken, to suspend the parking meter by-laws.
A legal quagmire exists over the so-called Suspension Order allegedly issued by the Minister of Communities, who has responsibility for local governance.
The government had adopted a course of action with respect to this controversy. The government has decided to introduce a force majeure, so as to allow the City Council to avoid facing legal action for breach of contract.
The City Council will certainly become bankrupt if it has to pay Smart City Solutions compensation for terminating the parking meter contract. It is hard to imagine why anyone would sign a contract with such harsh punitive measures, but the Council did.
The government has decided to come to the rescue of the Council by introducing a force majeure which means a situation beyond the control of a party to the contract.
The force majeure would be the suspension of the parking meter by-laws by the government for three months. The force majeure would, in the government’s opinion, allow the Council to have an excuse to walk away from the contract, by claiming that it was the government’s action which annulled parking meters and not a breach of contract by the Council.
The matter has however been presented by the propagandists within the media as a case in which the Cabinet has instructed the Council to suspend the parking meter contract. The government, however, issued an Order which was interpreted by the Council as asking it to suspend the by-laws.
The Council, rightly, sought advice on this matter, because it recognized that if it, the Council, executed that Order in its name, then a force majeure cannot be claimed as a defence against any legal action taken for breach of contract by Smart City Solutions.
The legal advice received by the Council was allegedly to that effect. The government saw this as a case of Council flouting the orders of Cabinet. It issued a new Order suspending the parking meter by-laws.
The question which should concern the Movement Against Parking Meters – which has been fighting for the end to the parking meter contract – is whether the Minister has the authority to suspend the by-laws which were approved under his hand earlier this year.
Section 305, paragraph 6 of the Municipal and Districts Council Act provides for by-laws, prepared by the Council, to be subject to the approval or rejection, with or without amendment, by the Minister.
The same Municipal and Districts Council Act does not provide for the Minister to revoke by-laws which were issued under his hand. The Minister can accept or reject, with or without amendments, but there is no provision for him to revoke.
The Council’s lawyer, therefore, is in the right by asking the Council to be cautious in terms of what it does. Council cannot be seen as suspending the by-laws, since this would open it to a legal challenge from which the Council will never recover in a hundred years. Nor does it seem as if the Minister has any power, under the law, to revoke by-laws which he had approved.
So we are in a legal quagmire which will have to be resolved by an approach to the Court.
In the meantime, if the Minister does not have the power to suspend the by-laws, Council would be acting outside of its own laws if it refuses to enforce these laws. Another legal puddle!
The government must explain to the people where in the law it has the authority to revoke the by-laws. This authority is not implicit, because the law expressly states that the Minister can either approve or disapprove, with or without amendment. That is the law. It nullifies the argument of an implicit power to revoke.
If the government has no power to revoke the by-laws, then the by-laws still stand and there can be no suspension of the parking meters by the government.
The police force had better get legal advice before it ends up enforcing an Order which has no legal effect.

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