|TAX ON HOLD |
AZARD ALI Saturday, May 20 2017
CITIZENS can breathe a sigh of relief, at least for now.
A High Court judge yesterday ruled that with immediate effect, Government must mash brakes on implementing the property tax. However, that relief could only last this weekend as Attorney General Faris Al-Rawi last night told the Lower House that Government would on Monday appeal the ruling in the Court of Appeal.
After hearing the constitutional motion in the San Fernando High Court, Justice Frank Seepersad yesterday said there is a “strong arguable case” that the Property Tax Act could be struck down, or, the process by which government is seeking to enforce it, could be justifiably reviewed by the courts.
There have been long lines at revenue offices throughout the country with thousands braving raging midday sun and soaking rain to file their property valuation forms. Justice Seepersad heard submissions from Senior Counsel Anand Ramlogan, where there was a line of people which snaked its way onto the road outside Palms Club, San Fernando, in a rush to submit Valuation Rental Forms and accompanying documents within the stipulated deadline.
Justice Seepersad ruled that the stay would remain in effect until May 31, until further notice.
He will commence hearing the substantive matter next Wednesday in the San Fernando High Court in which Ramlogan has been mandated to file documents by Monday at 4 pm, to support the skeletal arguments made yesterday.
GOVT LAWYER COUNTERS While Ramlogan SC was on his legs making submissions, the Government got wind of the judicial review he filed on behalf of the applicant Devant Maharaj. Government’s lawyers put in an appearance at the Hall of Justice shortly after midday and Justice Seepersad granted Senior Counsel Deborah Peake permission to intervene to challenge Ramlogan’s submissions.
The judge stood the matter down and via video conferencing, he reconvened the hearing at which Peake countered Ramlogan’s case saying Government has no intention of imposing a penalty on citizens who fail to comply and not submit forms and accompanying documents.
At 6 pm, Justice Seepersad delivered a written judgement in which he dealt with the issue of Government propagating through the Ministry of Finance website, media conferences and press releases, that the filing of Property Tax is a voluntary exercise and that there would be no penalty imposed on the citizenry.
The judge stated that when one considers the wording of the Valuation Return Form which citizens received in their mailbox and the precise documents which they should submit the Government was requesting through the media and advertisements, there exist in the minds of citizens a degree of ambiguity of what is required of them.
Elderly people for example and many who lack the ability to access the media, the judge added, would be left to conclude based on the wording of the form, that they merely needed to submit as many supporting documents as possible.
On that point, Justice Seepersad commented, “In democratic societies there should always exist a circumstance where the law creates a climate of certainty.
Citizens have a right to understand why they are mandated to act in a certain way and more importantly, to be properly informed as to the sanctions to be imposed upon them if they fail to comply with the law.” LAWS CAN’T BE CHANGED BY PRESS RELEASE On the constitutionality of the Property Tax, Justice Seepersad declared that Section Six of the Valuation of Land Act is the foundation upon which government was seeking to implement the tax. Justice Seepersad upheld Ramlogan’s argument that Government was seeking to implement the Property Tax Act by using Section Six of the Valuation of Land Tax, the latter having requested the citizen to file by April 1, 2010.
It seems that the date was omitted from Section One of the Property Tax Act, and the amount of fine payable for failing to pay, omitted from Section Four.
It would appear that the Commissioner of Valuation abrogated onto himself the power to make those amendments, Ramlogan submitted.
He said that it was a power that was exercised which only the legislature has because it affects the citizens’ right to enjoyment of property.
On that point, Justice Seepersad stated that the concept of the separation of powers must be strenuously defended. The executive arm of the State, the judge said, should never be permitted to exceed its jurisdiction and to eviscerate the authority vested in the legislative arm of the State. He commented, “Laws cannot be amended by ministerial decree or by way of press release.” Justice Seepersad ruled that the court felt with a high degree of assurance that the applicant may be able to establish an entitlement to the reliefs sought, should the matter go for trial.
He added that the balance of justice mandated the court’s intervention in the case.
In granting Maharaj leave, the judge stated that the applicant must file and serve his substantive claim on or before 4 pm on Monday. The hearing of a Case Management Conference is listed for two days after on Wednesday at 9.30 am in San Fernando.
Justice Seepersad then ruled that with immediate effect, there shall be a stay of the implementation and or enforcement of the decision contained in a press release dated April 19, which stated that all property owners are now required to compete a Valuation Return Form in accordance with the Valuation Land Act, Chapter 58:03. Appearing along with Ramlogan were attorneys Alvin Pariagsingh, Kent Samlal and Jayanti Lutchmedial.
Opposition leader Kamla Persad-Bissessar last night welcomed the injunction saying, “this injunction is a victory for the people and testimony to the political strength of the United National Congress.” Speaking earlier and prior to the late evening ruling, Persad- Bissessar told supporters during a protest outside the Couova Children’s Hospital that the fight against the property tax - which she called a poverty tax - would be fought in the courts, on the streets and even in Parliament.
“They have responded to the pre-action letters sent by our teams of lawyers indicating they see nothing wrong with the tax,” she said. “Well then, from henceforth, we go to the courthouse, we will fight them in court, we will fight on the streets and we will fight them in Parliament. They have extended the deadline but we still say ‘no property tax’,” she said.