DEREK ACHONG

Se­nior Re­porter

derek.achong@guardian.co.tt

The Pub­lic Ser­vices As­so­ci­a­tion (PSA) has in­struct­ed its at­tor­neys to file an emer­gency ap­peal to the Unit­ed King­dom-based Privy Coun­cil over the dis­missal of an in­junc­tion seek­ing to de­lay the planned im­ple­men­ta­tion of the T&T Rev­enue Au­thor­i­ty (TTRA). 

PSA Pres­i­dent Leroy Bap­tiste made the state­ment in a press re­lease is­sued af­ter the Court of Ap­peal dis­missed its ap­peal over a judge’s de­ci­sion to refuse the in­junc­tion, last month. 

De­liv­er­ing a writ­ten judg­ment, yes­ter­day af­ter­noon, the court re­ject­ed an ap­peal brought by PSA mem­ber and cus­toms of­fi­cer Ter­risa Dho­ray over the re­fusal of High Court Judge Bet­sy Ann Lam­bert-Pe­ter­son to grant her an in­junc­tion over the move, last month. 

It was a ma­jor­i­ty rul­ing with Jus­tice Nolan Bereaux and Mark Mo­hammed agree­ing that Jus­tice Lam­bert-Pe­ter­son was cor­rect to de­ny the in­junc­tion. 

“The judge is not plain­ly wrong in our view,” Jus­tice Bereaux said. 

Jus­tice Ra­jku­mar pro­vid­ed a dis­sent­ing judg­ment in which he dis­agreed with his col­leagues’ de­ci­sion and stat­ed that he would have grant­ed the in­junc­tion while Dho­ray’s sub­stan­tive case over the im­ple­men­ta­tion was be­ing ex­pe­di­tious­ly de­ter­mined. 

In their joint judg­ment, Jus­tices Bereaux and Mo­hammed ruled that Jus­tice Lam­bert-Pe­ter­son erred when she ruled that Dho­ray could be com­pen­sat­ed with dam­ages if she even­tu­al­ly suc­ceeds in her sub­stan­tive case. 

How­ev­er, they ruled that the judge was right to con­clude that Dho­ray and her col­leagues would not suf­fer ir­repara­ble harm if the in­junc­tion was de­nied and they were forced to de­cide the fu­ture of their em­ploy­ment. 

“There is no right to guar­an­teed or con­tin­ued em­ploy­ment by the State or the preser­va­tion of or­di­nary pub­lic of­fices from abo­li­tion,” he said. Deal­ing with Jus­tice Lam­bert-Pe­ter­son’s find­ing that the State had a stronger case than Dho­ray, Jus­tices Bereaux and Mo­hammed not­ed that she was cor­rect de­spite Jus­tice Ra­jku­mar rais­ing con­cerns over the process she em­ployed. 

In his dis­sent­ing judg­ment, Jus­tice Ra­jku­mar stat­ed that the bal­ance of jus­tice/con­ve­nience favoured pre­serv­ing the sta­tus quo. 

“The pub­lic in­ter­est re­quires an ear­ly de­ter­mi­na­tion of the sub­stan­tive mat­ter,” Jus­tice Ra­jku­mar said. He ruled that the in­con­ve­nience and ex­treme dis­lo­ca­tion Dho­ray and her col­leagues would face if the TTRA is op­er­a­tionalised would amount to ir­repara­ble harm and jus­ti­fied the in­junc­tion. 

“When the ev­i­dence of im­mi­nent and ir­repara­ble harm to the ap­pel­lant and pub­lic of­fi­cers of the Cus­toms and Ex­cise Di­vi­sion (CED) and the In­land Rev­enue Di­vi­sion (IRD) are con­sid­ered, to­geth­er with the im­mi­nent and ir­repara­ble harm to the pub­lic if an in­junc­tion is not grant­ed, is con­trast­ed with the less im­mi­nent ir­repara­ble harm to the State if a time-lim­it­ed in­junc­tion is grant­ed, the bal­ance clear­ly lies in pre­serv­ing the de fac­to sta­tus quo and grant­i­ng an in­junc­tion to al­low a rea­son­able time for the de­ter­mi­na­tion of se­ri­ous is­sues in the sub­stan­tive case,” Jus­tice Ra­jku­mar said. 

In the sub­stan­tive law­suit, Dho­ray is chal­leng­ing the con­sti­tu­tion­al va­lid­i­ty of the T&T Rev­enue Act 2021. 

She con­tends 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 is al­so claim­ing that the Gov­ern­ment did not have the pow­er to del­e­gate its tax rev­enue col­lec­tion du­ties. The law­suit specif­i­cal­ly fo­cus­es on Sec­tion 18 of the leg­is­la­tion which was pro­claimed by Pres­i­dent Chris­tine Kan­ga­loo on April 24. The sec­tion gives pub­lic ser­vants three months to de­cide 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. 

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

Af­ter Jus­tice Lam­bert-Pe­ter­son re­ject­ed the in­junc­tion, Dho­ray made an ap­pli­ca­tion for her to re­cuse her­self based on con­cerns raised by PSA mem­bers over the al­leged friend­ship be­tween her hus­band Gilbert Pe­ter­son, SC, and Prime Min­is­ter Dr Kei­th Row­ley. 

Jus­tice Lam­bert-Pe­ter­son re­peat­ed­ly re­ject­ed the links as she claimed that she could pre­side im­par­tial­ly in the case be­fore even­tu­al­ly con­ced­ing.  

The case has since been as­signed to High Court Judge West­min James.  Dho­ray was rep­re­sent­ed by Anand Ram­lo­gan, SC, Kent Sam­lal, Vishaal Siewsaran and Ganesh Sa­roop. The State was rep­re­sent­ed by Dou­glas Mendes, SC, Si­mon de la Bastide, and Svet­lana Dass.

PSA takes next step

The PSA Pres­i­dent said in a re­lease, “We wish to as­sure the work­ers of the Board of In­land Rev­enue and Cus­toms and Ex­cise Di­vi­sion that we will con­tin­ue this strug­gle on be­half of the work­ers un­til the very end ... We will let the British Law Lords have the fi­nal say in this mat­ter,” Bap­tiste said. 

He said that the union wel­comed the Court of Ap­peal’s de­ci­sion in which two ap­pel­late judges agreed with the judge and one pro­vid­ed a dis­sent­ing judg­ment. 

“The fact that it is a split de­ci­sion gives us hope and has strength­ened our re­solve to take this mat­ter to the high­est court in the land—The Privy Coun­cil,” Bap­tiste said. 

“The pow­er­ful and strong dis­sent­ing judg­ment ac­cords with our own views of this mat­ter and hence it is nec­es­sary that the is­sues be ful­ly ven­ti­lat­ed be­fore the Privy Coun­cil.”