A quick analysis of certain sections of THE LGB2

[Lotus]

A quick analysis of certain sections of
THE LOCAL GOVERNMENT BILL of 2003 (revised version)
by Sanjit Teelock,
Local Government Committee,
Mauritius Labour Party.


Following the presentation of the first draft of the new local Government Bill, a revised version was approved by Cabinet on Friday 23rd of May.
The Ministry of Local Government is to be congratulated for keeping its web-site up-to-date and for making available online both versions of the new proposed bill in a timely manner.
On the positive side, this new version has taken into account some of the observations that were made from various quarters, whereas on the negative side, some dangerous new sections have been added.

(1) "2. Interpretation
(1) In this Act -[…]
"cadastral value", in relation to any property, means its value ascertained on the basis of its market value, i.e the price which the property would fetch on an open competitive market, on a free, not forced sale, between a willing buyer and a willing seller had it been vacant;"
This replaces the previous term of ""rateable value", though the discrimination compared to properties valued under the old gross/net value system will persist. Effectively any house in a rural area will now not only have to pay rates, but will also be taxed at a HIGHER level than a similar property in an urban area.

(2) (1st version) "11.Election of municipal councillors
[…]
(4) The President may, at any time, by Order, dissolve a municipal council."
This provision has been deleted. It would have been the first time FULL executive powers would have been given to the President of the Republic. This clause was possibly ANTI-CONSTITUTIONAL.
(3) "16. Term of office of municipal councillors
Subject to the provisions of this Act, the term of office of a municipal councillor shall begin on the day on which he takes the oath in terms of section 17 and, except for the Mayor and Deputy Mayor, shall terminate on the eve of the day on which polling takes place for an ordinary election of councillors."
This section has NOT been changed.
The term of office should end on the eve of NOMINATION day, as was the case in the old Local Government Act (LGA 1989). Even Members of Parliament (who are not Ministers) are not allowed to stay in office after nomination day. This would affect free and fair elections.
(4) "22. Election of Mayor and Deputy Mayor

(1) The Chief Executive shall, between the third day and the seventh day following the proclamation of the results of an ordinary municipal election, convene a meeting of all the returned candidates who, after taking the oath referred to in section 17, shall meet under the chairmanship of the Senior Councillor, to elect from amongst themselves a Mayor and a Deputy Mayor who, unless they resign their office or are sooner removed, shall remain in office for a period of 2 years."
As stated in the previous analysis, the Mayor will be elected by the councillors, so that nothing prevents arrangements being made to share the mandate (whether it is five years or two years), as is a common occurrence in the present District Councils. Furthermore, the Mayor could be changed if ever the majority of councillors so decided.
(5) "23.Election procedure
(4) Where, on the second ballot, there is again an equality of votes, the person to be elected shall be designated by drawing of lots between the candidates having received the same number of votes."
The old (fairer) method has been re-instated, as opposed to the proposition in the first draft that "the Senior Councillor shall exercise a casting vote."
(6) "26. Revocation of Mayor
(1) Where the Mayor of a local authority no longer commands a majority, the President may revoke the Mayor and order that a new Mayor be elected in accordance with section 23 within such time as he shall fix."
In the 1st version, there was an additional clause, namely:
"(b) where no person commanding a majority can be elected Mayor within the time fixed under paragraph (a), suspend the whole Council and, after consultations with the Prime Minister and the Leader of the Opposition, appoint a Mayor and a Deputy Mayor and such number of persons as he may determine to act as councillors until such time as the term of office of the suspended councillors would normally have terminated under section 16."
On the positive side, the question of nominated councillors no longer arises. On the negative side, there does not seem to be any provision if ever there is a "hung" council, ie no majority is possible to elect a Mayor (section 23 only deals with equality of votes AFTER an election).

(7) (1st version) "28.Vacation of office by resignation
(3) Where a person who has been elected as Mayor or Deputy Mayor resigns his office, he shall be deemed to have also resigned his office as councillor."
This provision has been deleted. It was meant to avoid deals being struck to share a mandate, but would not have prevented arrangements being made by way of a motion of no confidence implicitly agreed upon between two parties.
( "33.Casual vacancies amongst councillors
[…]
(2) Subject to subsection (3) and section 34, the vacancy shall be filled by
election -
(a) in case of less than 3 vacancies amongst the councillors of a municipal council, where the Minister considers that it is in the public interest to hold an election and he so informs the Electoral Supervisory Commission; or
(a) in case of more than 3 vacancies amongst the councillors, unless the Electoral Supervisory Commission, after consultation with the Minister, considers that the vacancies will not upset the relativity between the number of councillors in the majority group and in the opposition respectively."
This clause has been MAINTAINED.
This provision was introduced by the MSM led government in 1988 with the tacit agreement of the MMM opposition at the time. The idea was to avoid numerous municipal by-elections. With the reduction in the number of councillors, this provision is out of place, even more so since some councils only have 12 members. By-elections are of the utmost importance.

(9) "34.Vacancy within 12 months of election
[…]
(2) Where the number of remaining councillors of a local authority falls below the number required for a quorum of councillors of that authority, the President shall appoint such number of persons to be councillors of the local authority until the holding of such elections as may be necessary to ensure that there is a quorum of councillors at meetings of the authority."
This clause has been MAINTAINED.
Executive powers for the President. This provision would not be necessary if regular by-elections were held.

(10) "38.Association of Local Authorities"
[…]
(4) The Chief Executive or other Heads of Departments of a Local Authority may attend or take part in any discussion of the Association but shall not vote on any question."

Though this clause has been added, still no mention is made as to the public officers that would work FOR the Association of Local Authorities. In the past this lack of detail has been abused by the MMM.

(11) (1st version) "40.Comités de Quartiers"
This controversial section has been abolished. In this respect, one wonders why it is necessary for Village Councils to be abolished, as small villages will find themselves not represented at Municipal Council level.

(12) "41.Functions of local authorities
[…] (2) A local authority shall, within the limits of the area under its jurisdiction, be responsible for -
[…]
(h) the formulation and implementation, particularly in deprived regions, of policies aiming to respond better to -
(i) poverty and exclusion - related problems;
(ii) the safeguard and promotion of the rights and welfare of children living within its administrative area;"
This clause has been MAINTAINED.
This work is presently the responsibility of government. It is doubtful whether local authorities can deal with such matters.

(13) "43.Powers of municipal inspectors
[…]
(2) […]

(c) Any article or animal seized or confiscated under the provisions of subsection (1) (d) shall be disposed of-

(i) in such manner as the Court may direct;

(ii) where no direction has been issued by the Court, in such manner as the Chief Executive may decide."
This a new clause giving EXCESSIVE discretionary powers to the Chief Executive.
(14) (1st version) "51.Thoroughfares on private property
[…]
(4) Any person who -

(a) digs across or along a public road; or
(b) undertakes any excavation work on a public road,

without having obtained the appropriate permit provided in the Schedule to the Building Act, shall commit an offence and shall, on conviction, be liable to a fine of not less than 5,000 rupees and not more than 50,000 rupees, and to imprisonment for a term not exceeding 2 years.
This clause has been deleted. No alternative penalty has been proposed.
(15) "63.Annual estimates
[…]
(6) In considering the amount of grants to be allocated to the local authorities, the Minister responsible for the subject of finance shall give due consideration to the financial and development needs of the particular local authority and shall, for a fair allocation of the amount of the grants, take into account -
[…] (b) the possibility of the local authority concerned to increase its revenue by way of any local rates, fees or charges;
[…]
(1st version) 67.Grants may be withheld
Where the Minister is satisfied that -
(a) a local authority has failed to achieve or maintain a reasonable standard of efficiency and progress in the discharge of its functions; or
(b) the requirements of this Act are not being complied with,
he may withhold any grant payable to a local authority by such amount as he thinks just."

Even though section 67 has been deleted, the other provision (section 63(6)) STILL effectively
FORCES the imposition of a rural tax, despite government claims to the contrary.
(16) "78.Levy of local rates
(1) Subject to the other provisions of this section, an annual local rate shall be levied on the owner of every immovable property situate in the rating area of a local authority."
This clause has been MAINTAINED.
Whereas section 74 of the old LGA 1989 specified that the net annual value of any taxable immovable property should exceed Rs1750, this requirement is no longer maintained. The result will be that all residential buildings in the rural areas, no matter how humble, as well as ALL low-cost urban housing estates, including those for cyclone refugees, will be liable for property tax. The only way out would be to appeal for remission due to poverty, which will probably result in the new councils being flooded with such requests.

(17) "80. Cadastral value
The annual local rate payable in respect of an immovable property shall be calculated by reference to the property's cadastral value, as determined from time to time."
This section replaces the old section "82.Rateable value". However, the following clause has been deleted:
"The Minister may, every 5 years, determine the percentage by which the rateable value of the immovable properties appearing on the cadastral database shall be increased to take into account the general increase in value of immovable properties."

Although this clause conferred powers to the Minister, without specifying the statistics/criteria that would have been used to work out the percentage increase, the basic principle was not a bad idea. The new section has also abolished the requirement of five years, meaning that the rural areas will effectively be taxed MORE than the urban areas due to the difference between market value and gross/net value.

(1 "81.Rate due and payable
(2) The Financial Controller, may, on a written application being made to him, authorise that the local rate be paid without any surcharge, by bank standing order, in not more than 12 consecutive equal instalments during any financial year."
In the first version, this clause was:
"(2) Where the Financial Controller, on a written application being made, is satisfied that a ratepayer is unable to pay the local rate in respect of any financial year within the periods specified in subsection (1), he may -
(a) accept that the local rate be paid without any surcharge, by bank standing order, in not more than 12 consecutive equal instalments during that financial year;"
The condition of poverty no longer applies and FULL discretionary powers are given to the Financial Controller. No justification is required for his decision.

(19) "89. Ascertainment of value of immovable property
[…]
(3) For the purposes of ascertaining the value of an immovable property under this section, the valuer or any person duly authorised by him in writing, may, at all reasonable times and after giving not less than 48 hours' notice in writing, enter on, survey and value, any immovable property in the area for which the valuer acts."
It was pointed out in the previous analysis that this is the FIRST TIME IN HISTORY that someone who is NOT a public officer is given the power to enter a private residence.
To add insult to injury, the following clause, that appeared in the first version, has been DELETED:
"91. […]
(4) The valuer or any person authorised by him shall produce his authority before entering on any property for the purposes of subsection (3)."
In other words, a private individual is allowed to enter a private residence without ANY written authority whatsoever. Even the police are not allowed to do this, under normal circumstances. It can be compared to the Local Government version of the Anti-Terrorism Act!
(20) "FOURTH SCHEDULE
Meetings and proceedings of local authorities
[…]
16. No business shall be transacted at a meeting of a local authority unless there are present not less than half of the number of members."
This clause corrects the quorum requirement. However, there is a nuance as to whether "half the number of members" is in respect to the total number of councillors elected, or the total number of councillors still sitting (taking into account any vacancies).