Privy Council rules TTRA not unconstitutionalImbert ready to modernise Govt’s revenue collection

Senior Reporter

derek.achong@guardian.co.tt

After successfully navigating almost two years of legal challenges, the path has been cleared for the Government to finally complete the operationalisation of the T&T Revenue Authority (TTRA).

Delivering a judgment yesterday, the United Kingdom-based Privy Council dismissed the final appeal in a lawsuit challenging the move brought by the Public Services Association (PSA) and customs officer Terrisa Dhoray.

It was a third consecutive legal victory for Finance Minister Colm Imbert, as the case was previously rejected by High Court Judge Westmin James and a three-member panel of the Court of Appeal.

Imbert immediately hailed the outcome in a post on social media site X.

He said: “WE WON THE CASE! This required tremendous effort against the relentless opposition from the UNC and the PSA. Now we can modernise revenue collection in TT!”

In its judgment, the Privy Council agreed with the local courts, albeit for different reasons, that the authority was not unconstitutional.

“The transfer of revenue functions to the Authority pursuant to the act does not breach any implied provision or assumption on which the Constitution is based,” Lady Ingrid Simler, who wrote the judgment, said.

In determining the case, Lady Simler and her colleagues ruled that while Justice James and two Appellate Judges came to the correct conclusion, they were wrong to consider whether the authority was being asked to perform a “core government function.”

The Board ruled that Justice Nolan Bereaux’s separate but consistent analysis of the case was more appropriate.

Stating that it was difficult to define such functions based on developments in society, Lady Simler said, “It has led the Board to conclude, as Bereaux JA did, that it is both unnecessary and preferable not to define core governmental functions, still less in terms of a hard and fast rule that such functions involve the exercise of coercive powers.”

Lady Simler noted there was no constitutional bar to delegating such functions to non-public servants.

“There is nothing in the terms of chapter 9 itself, or elsewhere in the Constitution, that expressly requires that core government functions are only performed or delivered by public servants covered by chapter 9, or that vests functions carried out by public officers in those public officers giving rise to an implied prohibition against devolving those functions elsewhere,” she said.

Lady Simler noted that there was also no evidence the authority would not be genuinely independent and would be a political device or sham.

Stating that there are safeguards preventing the authority’s board or the Finance Minister from meddling in the daily operation of the authority, Lady Simler said, “Moreover, the Minister may only give general policy directions to the Board in relation to the Board’s own functions (section 8(3)) and is given no statutory authority to give directions to the Authority.”

She also noted that public servants, who opted to transfer out of the public service to the authority, had safeguards to protect the terms and conditions of their employment.

While she said the authority’s director general and deputy directors general are appointed to terms not exceeding five years by the minister, subject to affirmative resolution of Parliament. She noted that all other staff would be afforded the same protection as private sector workers under the Industrial Relations Act.

Lady Simler also highlighted protection afforded to taxpayers.

“Finally, to the extent that the Authority’s powers are misused in such a way as to cause a taxpayer to pay tax which is not due under law, an appeal lies to the Tax Appeal Board to correct such errors and there is a further appeal from the Tax Appeal Board to the Court of Appeal,” she said.

“For all these reasons, the Board is satisfied that there are the necessary mechanisms and effective safeguards to protect the staff and officers of the Authority and members of the public from executive interference,” she added.

Despite their findings on the constitutionality of the T&T Revenue Authority Act, which sought to introduce the TTRA, Lady Simler and her colleagues did point out issues with how it (the legislation) defined the role of public servants, who would be assigned to the authority’s Enforcement Division.

“On the face of it, the scope of the powers purportedly reserved to public officers of the Enforcement Division is not as carefully or clearly defined by the Act as might be desirable, particularly in legislation of this kind,” she said.

“It gives no substantive meaning to the circumstances in which the powers, authorities and privileges conferred by the Customs laws, the Excise Act and other revenue laws are to be exercised by public officers in the Enforcement Division and appears not to reserve with any clarity the exercise of any such powers exclusively to public officers,” she added.

Lady Simler noted that the issue did not arise in the appeal and could be challenged by public servants at a later date.

“There might be more targeted challenges to the proper interpretation of “enforcement” and the extent to which the intended division of functions is achieved by the Act, but these are not for determination on this appeal,” she said.

PSA responds

The PSA is not ruling out further legal action over the implementation of the TTRA.

In a telephone interview with Guardian Media hours after the Privy Council dismissed its final appeal over the constitutionality of the authority, PSA president Leroy Baptiste noted that there are other legal issues to be determined in relation to PSA members.

“The full course of action would be taken to ensure these workers are protected. We will embark upon more legal action, if necessary, to protect the interests and welfare of our members,” he said.

Baptiste claimed his members from the Inland Revenue Division (IRD) and Customs and Excise Division (CED) had been asked to decide whether they want to take up positions in the authority, transfer to another area of the public service or voluntarily retire without being provided with necessary information.

Baptiste said, “At no point in time this sanitises the atrocious acts by the Government, by trying to force upon workers to make a decision without the benefit of proper information.”

Baptiste said the association recently wrote to the Chief Personnel Officer (CPO) requesting disclosure of the information on voluntary separation (VSEP) and transfer opportunities in the public service.

“Workers are not in a position to exercise an option if they don’t have information…These things have not been agreed or discussed with anyone,” he said.

In a media release, the PSA said while the Privy Council ruled the authority is consistent with the Constitution, it noted there was some ambiguity over the enforcement duties to be performed by the public servants who accept positions in the authority.

“Although we are disappointed by the fact that the Privy Council did not see it fit to pronounce on these critical weaknesses in the law, it is significant that it deliberately left the door open to further legal challenges,” the union said.

The PSA called on Government to respect the limits identified by the Privy Council in its judgment.

“If it doesn’t, the PSA stands ready to do battle once more by standing up for and defending the rights of its workers in the public interest,” it said.

About the case

In the lawsuit, the PSA and Dhoray challenged the constitutional validity of the legislation, which seeks to replace the Inland Revenue Division (IRD) and Customs and Excise Division (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, 2022.

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 Imbert to December based on the case. It was subsequently deferred to March to facilitate the appeal before the Court of Appeal.

However, Imbert refused to grant another extension after the Court of Appeal dismissed the appeal and while the case was being considered by the Privy Council.

The Privy Council also refused to block a deadline set for public servants to indicate their position based on an undertaking that such would not take effect until the final determination of the case.

Contacted last month, Imbert declined to reveal the number of public servants who gave indications while the case was being determined.

Dhoray was represented by Anand Ramlogan, SC, 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 was represented by Douglas Mendes, SC, Simon de la Bastide, SC, and Lianne Thomas.

Case Timeline

December 2021: T&T Revenue Authority Act passed by Parliament

April 2022: President Christine Kangaloo proclaims the legislation

July 2022: Customs officer Terrisa Dhoray files a lawsuit on behalf of the Public Services Association challenging operationalisation of legislation.

November 2023: Dhoray’s case dismissed by High Court Judge Westmin James

May 2024: Dhoray’s appeal dismissed by Court of Appeal

July 2024: Deadline for public servants from the Board of Inland Revenue and Customs and Excises to indicate if they want to join the TTRA

August 2024: The PSA and CPO meet to discuss the operationalisation of the TTRA

August 2024: TTRA advertise two senior positions

September 2024: Dhoray’s final appeal dismissed by Privy Council

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