Senior Reporter
derek.achong@guardian.co.tt
Public servants at the Inland Revenue Division (IRD) and the Customs and Excise Division (CED) will have to decide whether they wish to join the T&T Revenue Authority (TTRA) while the Privy Council weighs in on the final appeal over its operationalisation.
After hearing submissions on the substantive appeal at the United Kingdom Supreme Court Building in London, England, yesterday morning, five Law Lords were asked by lawyers representing the Public Services Association (PSA) to consider a stay of a July 31 deadline given by the Ministry of Finance for the workers to decide their future employment position.
The undertaking given by the ministry is that the workers will not be immediately placed based on their decisions, until the appeal is determined when the new law term opens at the beginning of October.
In making the application, Senior Counsel Anand Ramlogan, who represented the PSA, noted that there was a difference of opinion over a stay granted by the Court of Appeal after his client’s appeal was rejected on June 4. He noted that while the parties initially believed that the operationalisation was stayed, it was subsequently revealed that the Appeal Court’s stay was related to its decision to dismiss the appeal.
“By asking them to pick an option, it does place public officers in an unenviable position,” Ramlogan said, as he called on the panel to preserve the status quo. Ramlogan’s concerns were rejected by Senior Counsel Douglas Mendes, who led the legal team for the authority and the Office of the Attorney General.
“We are asking for them to exercise the option, but nothing would happen, only internal processes,” Mendes said. “I don’t understand what trauma people would experience by saying I want to go over to the TTRA or retire.”
UK Supreme Court president Lord Robert Reed, who led the panel, said that he and his colleagues were content with the undertaking.
“We would accept the undertaking rather than ordering a stay,” Lord Reed said. He assured the parties that the case would get priority attention, with he and his colleagues deliberating during the court’s vacation period to provide a swift judgment.
“We appreciate this case is a matter of significant public importance, and that is why we expedited the hearing,” Lord Reed said.
PSA advises workers
to comply
In a press release issued yesterday evening, the PSA indicated that it was satisfied that the undertaking would protect its members and advised affected workers to comply.
“In the circumstances, workers may select an option on the clear understanding that there is absolutely no prejudice whatsoever because nothing can be done until the Privy Council delivers its judgment,” it said.
Stating that it was anxious about the outcome of the appeal, the union said that its officials would issue bulletins and visit the offices of the IRD and the CED next week to address its members’ concerns. In the appeal, the PSA is contending that a High Court Judge and the Court of Appeal got it wrong when they rejected the case brought by its member and customs officer Terrissa Dhoray.
The PSA and Dhoray challenged the constitutional validity of the legislation, which seeks to replace the IRD and CED 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 gave 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 Finance Minister Colm Imbert to December based on the case. It was subsequently deferred to March to facilitate the appeal before the Court of 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. They also claimed that the Government did not have the power to delegate its tax revenue collection duties.
In its defence, the Government has claimed that tax collection could be delegated once guidelines are provided by Parliament. In November of last year, Justice Westmin James dismissed the case. While he noted that taxation was a key source of a government’s revenue and that the process of assessing and collecting taxes was essential, he also noted that there are currently instances of private entities being able to collect taxes on the 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 upholding Justice James’ judgment in May, 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 Mira Dean-Armorer, who wrote the judgment, said.
“Collection is also not coercive and is generally voluntary,” she added.
Justice Dean-Armorer noted that enforcement would still be performed by public servants, who fall under the remit of the Public Service Commission. “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.
Dhoray was also represented by Robert Strang, Jayanti Lutchmedial, Kent Samlal, Robert Abdool-Mitchell, Natasha Bisram, Vishaal Siewsaran and Ganesh Saroop.
The authority and the Office of the Attorney General were also represented by Simon de la Bastide, SC, and Lianne Thomas.
