Derek Achong

Se­nior Re­porter

derek.achong@guardian.co.tt

The Pub­lic Ser­vices As­so­ci­a­tion (PSA) has made good on its promise to take its le­gal chal­lenge over the im­ple­men­ta­tion of the long-tout­ed T&T Rev­enue Au­thor­i­ty (TTRA) to the Unit­ed King­dom-based Privy Coun­cil.

Guardian Me­dia un­der­stands that the PSA’s lawyers, led by Anand Ram­lo­gan, SC, of Free­dom Law Cham­bers, yes­ter­day filed an ap­pli­ca­tion for con­di­tion­al leave to pur­sue a fi­nal ap­peal of the case.

The de­vel­op­ment came less than 24 hours af­ter Ap­pel­late Judges Nolan Bereaux, Char­maine Pem­ber­ton, and Mi­ra Dean-Ar­mor­er re­ject­ed an ap­peal brought by PSA mem­ber and cus­toms of­fi­cer Ter­risa Dho­ray, over the dis­missal of her case by High Court Judge West­min James in No­vem­ber last year.

The Ap­peal Court will now have to con­sid­er whether there is a gen­uine­ly dis­putable is­sue to be de­ter­mined be­fore the PSA is al­lowed to pro­ceed to the Privy Coun­cil.

Even af­ter cross­ing the ini­tial hur­dle, the PSA would have an up­hill task in seek­ing to over­turn the con­cur­rent find­ings of the lo­cal courts, as the Privy Coun­cil usu­al­ly on­ly does so in ex­cep­tion­al cas­es.

Ac­cord­ing to its fil­ings, ob­tained by Guardian Me­dia, the PSA is al­so seek­ing an in­junc­tion block­ing any moves with the TTRA pend­ing the de­ter­mi­na­tion of the case by the Privy Coun­cil.

A sim­i­lar in­junc­tion ap­pli­ca­tion was dis­missed by both Jus­tice James and the Court of Ap­peal be­fore the sub­stan­tive case was con­sid­ered and de­ter­mined.

De­spite the courts’ rul­ings against the in­junc­tion, Fi­nance Min­is­ter Colm Im­bert had pre­vi­ous­ly agreed to hold out on the move while the lo­cal courts were mulling over the sub­stan­tive case.

How­ev­er, Prime Min­is­ter Dr Kei­th Row­ley said yes­ter­day that he had in­struct­ed Im­bert to move ahead with the TTRA plans de­spite the im­pend­ing Privy Coun­cil pe­ti­tion. (See oth­er sto­ry)

Dho­ray’s lawyers claimed that hun­dreds of pub­lic ser­vants would be af­fect­ed if the Gov­ern­ment is al­lowed to go ahead with im­ple­men­ta­tion with the fi­nal ap­peal pend­ing.

“The im­pact on their ca­reers is un­quan­tifi­able and ir­re­versible, as it in­volves a loss of pen­sion and re­tire­ments ben­e­fits, loss of act­ing ap­point­ments, pro­mo­tions and tremen­dous anx­i­ety, dis­tress and in­con­ve­nience,” lawyers said.

In the law­suit, the PSA, through Dho­ray, chal­lenged the con­sti­tu­tion­al va­lid­i­ty of the leg­is­la­tion, which seeks to re­place the Cus­toms and Ex­cise Di­vi­sion (CED) and the In­land Rev­enue Di­vi­sion (IRD) with the TTRA.

The law­suit specif­i­cal­ly fo­cused on Sec­tion 18 of the T&T Rev­enue Act, which was pro­claimed by Pres­i­dent Chris­tine Kan­ga­loo on April 24 last year.

The sec­tion gives pub­lic ser­vants three months to make a de­ci­sion on their fu­ture em­ploy­ment up­on the op­er­a­tional­i­sa­tion of the TTRA. Af­fect­ed pub­lic ser­vants have the choice to vol­un­tar­i­ly re­sign from the Pub­lic Ser­vice, ac­cept a trans­fer to the TTRA, or be trans­ferred to an­oth­er of­fice in the Pub­lic Ser­vice.

The im­ple­men­ta­tion was ini­tial­ly ex­pect­ed to take place in Au­gust last year but was de­ferred by Im­bert to De­cem­ber based on the case. It was sub­se­quent­ly de­ferred to March to fa­cil­i­tate the ap­peal.

Dho­ray’s lawyers con­tend­ed that cer­tain seg­ments of the leg­is­la­tion are un­con­sti­tu­tion­al, as they seek to in­ter­fere with the terms and con­di­tions of em­ploy­ment of pub­lic ser­vants cur­rent­ly as­signed to the CED and IRD. She al­so claimed that the Gov­ern­ment did not have the pow­er to del­e­gate its tax rev­enue col­lec­tion du­ties.

In its de­fence, Gov­ern­ment has claimed that tax col­lec­tion could be del­e­gat­ed once guide­lines are pro­vid­ed by Par­lia­ment.

Jus­tice James dis­agreed with Dho­ray’s le­gal chal­lenge. While he not­ed tax­a­tion is a key source of a gov­ern­ment’s rev­enue and that the process of as­sess­ing and col­lect­ing tax­es is es­sen­tial, he said there were cur­rent­ly in­stances of pri­vate en­ti­ties be­ing able to col­lect tax­es on gov­ern­ment’s be­half. He al­so point­ed out that sev­er­al for­eign coun­tries have set up sim­i­lar spe­cial­ist bod­ies to deal with the “com­plex­i­ties” of mod­ern tax­a­tion.

In their judg­ment, the ap­peal pan­el ruled that while en­force­ment is a “core gov­ern­ment func­tion” that can­not be del­e­gat­ed, the as­sess­ment and col­lec­tion of tax are not.

“We ob­serve that the as­sess­ment which the Au­thor­i­ty is em­pow­ered to con­duct is in re­al­i­ty an arith­meti­cal stage of the process and does not con­fer on the as­ses­sor any co­er­cive pow­er,” Jus­tice Dean-Ar­mor­er, who wrote the judg­ment, said.

“Col­lec­tion is al­so not co­er­cive and is gen­er­al­ly vol­un­tary,” she added.

Jus­tice Dean-Ar­mor­er not­ed that en­force­ment will still be per­formed by pub­lic ser­vants, who fall un­der the re­mit of the Pub­lic Ser­vice Com­mis­sion (PSC).

“We there­fore hold that there was no breach of the im­plied term that core func­tions should re­main un­der the su­per­vi­sion of the PSC,” she said.

Re­ject­ing claims that the leg­is­la­tion breach­es the sep­a­ra­tion of pow­ers, Jus­tice Dean-Ar­mor­er point­ed out that the au­thor­i­ty was mere­ly act­ing as an agent of the State.

“In this way, the in­trin­si­cal­ly ex­ec­u­tive au­thor­i­ty is nev­er re­moved from the State,” she said.

Dho­ray was al­so rep­re­sent­ed by Jayan­ti Lutch­me­di­al, Kent Sam­lal, Robert Ab­dool-Mitchell, Natasha Bis­ram, Vishaal Siewsaran and Ganesh Sa­roop.

The au­thor­i­ty and the Of­fice of the At­tor­ney Gen­er­al were rep­re­sent­ed by Dou­glas Mendes, SC, Si­mon de la Bastide, Svet­lana Dass and Leann Thomas.