June 8, 2007
Judge says no to injunction against the $1 user fee

Both sides are claiming victory after an application for an injunction against the $1 user fee charged at the Grenadines terminal was denied last Wednesday, June 6.{{more}}

While Prime Minister Dr Ralph Gonsalves considers Justice Gertel Thom’s ruling a major victory for his government, counsel for the complainants Bertram Commissiong QC, who appeared along with Kay Bacchus Browne, says that the ruling hinged on regulations that did not exist prior to Monday morning when it was presented at the hearing.

He wondered what the ruling would have been outside of this new regulation.

This application along with others which are to be argued starting June 14 were filed by Opposition members of parliament Dr Godwin Friday and Terrence Ollivierre on behalf of themselves and their constituents and Senator Daniel Cummings and Margaret Williams of McKie’s Hill.

The defendants in the matter are the Prime Minister in his capacity as Minister of Sea and Airports; he is represented by Hans Matadial, and the Attorney General who is represented by senior crown counsel Camillo Gonsalves.

Anthony Astaphan and Graham Bollers appear for the Port Authority and port police officer Leroy Douglas, while Arthur Williams and Richard Williams appear for the Commissioner of Police and police officer Alphaeus Stapleton respectively.

The application for the injunction was filed on Friday, May 31 and was heard on Monday, June 4. The complainants charged that the fees being collected at the terminal were unlawful because there was no regulation in place under the Statutory Rules and Orders authorizing them.

However on Monday morning, the court was presented with a gazetted amendment to the Port Authority regulations which addressed all the issues as to the implementation of the fees and were made retroactive to April 16, the day the fee system commenced.

Dr Gonsalves said that Justice Thom said during her oral ruling “The very regulation that the applicants contend was not in existence is now in existence. There is now no legal basis under which the interim injunction which the claimants claim can be made.”

Speaking at a press conference following the judge’s ruling, Dr Gonsalves said that while some would make an issue about the regulation being signed on a Sunday, his government was a seven day of a week government and does not stop operating on Friday.

Commissiong however told SEARCHLIGHT that after the new legislation was brought to the court on Monday, he believes that the judge had no choice but to rule the way she did.

He however noted that she made it clear that she gave no finding with regard to the retroactivity of the regulation, neither did she rule on whether the $1 charge was a fee or tax and the question of implied authority: whether the Port Authority could have imposed the fee without new regulations being enacted.

Commissiong said that his team remains confident going forward.

Dr Gonsalves also expressed confidence in the constitutionality and legality in everything that has been done in this matter on his government’s part.

He also noted that the two pieces of legislation which were relevant to last Monday’s hearing were the Port Authority Act and the Interpretation and General Provisions Act.

“I want to make it abundantly clear that the two laws under which the charge was imposed…none of these laws were passed by the ULP administration,” Dr Gonsalves said.

He said that when the Port Authority made its decision to impose the $1 charge that it was satisfied that in this case there was no requirement to make a regulation.

The Prime Minister said that the decision to make a regulation was done out of “an abundance of caution.” He admitted that in retrospect that the Port Authority should have put the regulations in place before, even though they didn’t deem it necessary based on their reading and advice on the law.

He said that he believes that they didn’t think that it would have become an issue.

He referred to section 72 b of the Port Authority act which gives the Port Authority the authority:

“To make regulations with the approval of the minister with respect to the control of all persons and vehicles on any such premises, the maintenance of order thereon, the administration or exclusion

of persons there from and the charges if any to be made for such admission.”