PSA goes to Privy Council for revenue authority injunction

Customs and Excise officer Terrisa Dhoray and her union, the Public Services Association (PSA), have convinced the Court of Appeal to allow her to petition the London Privy Council despite two previous refusals of an injunction to stop the operationalisation of the TT Revenue Authority (TTRA).

On Friday, three days after they dismissed Dhoray’s appeal for the injunction, Justices of Appeal Nolan Bereaux, Mark Mohammed and Peter Rajkumar agreed to grant her conditional leave.

In an oral ruling, the judges said they were “persuaded” by arguments of Dhoray’s lead attorney, Anand Ramlogan, SC, on the right to protection of the law.

They said that constitutional right was evolving and multi-dimensional. It also prohibited acts by a government to arbitrarily or unfairly deprive individuals of their rights and gave citizens the right of access to the courts for relief for breaches of their rights, they ruled.

In arguments at the Hall of Justice, Port of Spain, Ramlogan submitted that the nature of the claim gave his client the right of access to appeal to the apex court. He said it also raised matters of public importance and was “highly exceptional” which warranted the court to exercise its discretion and allow the appeal to progress.

In an immediate reaction, the PSA said it welcomed the court’s permission to appeal to the Privy Council.

“It is clear that the Government did not want this case to go beyond the local courts as the State opposed the grant of leave…

“The PSA had committed itself to taking this case to the highest court in the land from day one. We are of the firm view that the matter raises issues of great constitutional and public importance hence, the highest court in the land should pronounce on the serious issues we have raised.

“The abolition of the Inland Revenue Division and Customs and Excise Division and its replacement with the Revenue Authority is a cataclysmic change.

“These two institutions have served our country and people for over half a century since independence and cannot be abolished at the Government’s whim and fancy.”

The PSA’s release said the issue of political interference and control over public officers was a serious one.

“The Revenue Authority is liable to such political manipulation and control and will therefore be detrimental to the public interest. It places too much power in the hands of Finance Minister Colm Imbert.”

Ramlogan and his team will now seek to have an urgent hearing at the Privy Council.

On Tuesday, in a previous decision - a majority ruling by Bereaux and Mohammed- the judges found no fault with the refusal by Justice Betsy Ann Lambert-Peterson to restrain the Government from going ahead with staffing the TTRA.

Justice Peter Rajkumar dissented.

On Friday, Ramlogan said the appeal was of critical importance since employees at the IRD and CED, are being forced to decide by August 1 if they wanted to join the TTRA, or not.

“Who is the State to tell me to voluntarily resign? Do not view this case with blinkers. You cannot divorce the substantive claim from the application for interim relief.

“If that deadline passes, a wide cross-section of workers - some 2,000-3,000- stand to be affected.”

In her constitutional claim, Dhoray is alleging that the TTRA Act has given the government political control over the authority and that the law facilitates and allows undue political influence and interference with the authority’s management.

In the injunction application, Dhoray accused the Government of secretly making moves to make the TTRA fully functional before the court rules on the constitutionality of the TTRA Act.

It is for this reason, she contended, the injunction must be granted to maintain the status quo.

Dhoray’s application specifically challenges section 18 of the TTRA Act, which deals with the enforcement division of the TTRA. She has argued that if section 18 takes effect, as planned, the careers of public officers at the two divisions would be in jeopardy. The options open to them are to voluntarily resign from the public service, accept a transfer to another public service or accept one to the TTRA.

It is also Dhoray’s contention that officers of these two divisions fall under the Public Service Commission and if the proposed changes took place, they will no longer have the protection guaranteed to them under the Constitution.

On June 5, Lambert-Peterson dismissed the injunction application which sought to halt the operations of the TTRA, including the recruitment of staff.

She said after weighing the risks, the State should not be restrained, even by interim relief, from exercising its statutory powers or doing its duty to the public.

She also said to grant it would likely do more harm than good. On June 29, the judge eventually recused herself from the case.

In their ruling on Tuesday, Bereaux and Mohammed they did not accept that public officers may suffer undue loss if an injunction was not granted and while “some administrative dislocation will occur” if the TTRA is operationalised, “adjustments can be made.”

“Indeed many may well benefit from the new administrative arrangements which may be liberated from the moribund regulations of the PSC.

“Those officers who retire can embrace the many opportunities retirement brings including new business ventures and job opportunities. Moreover, there is no right to guaranteed or continued employment by the State or the preservation of ordinary public offices from abolition.”

Bereaux, who wrote the decision, also said that the greater prejudice weighed against the State since the legislation had been passed “in the public interest, for the greater good of TT, by providing what the Executive considered a more efficient system of revenue collection from which it expects greater revenue in-flows.”

“Any negative impact on revenue collection by the grant of an injunction and any adverse effect on the country’s international credit rating, greatly outweighs any prejudice to the appellants in the event that they succeed at trial.”

In considering whose case was stronger, Bereaux said the onus was on Dhoray and the PSA to show the TTRA Act was unconstitutional. “...I express no concluded view on the outcome of the trial.”

It was Rajkumar’s view that Lambert-Peterson was wrong and did not appreciate the possibility of irreparable harm to workers of the IRD and the CED if the act, or parts of it, was later found to be unconstitutional.

He also said even if an injunction was granted, revenue collection can continue since the IRD and CED were already functioning and have been since at least Independence in 1962.

The injunction application seeks to have section 18 stayed pending the hearing and determination of the constitutional claim, as well as an order suspending the date of operationalisation of the TTRA.

By legal notice on April 14, President Christine Kangaloo proclaimed certain sections of the TTRA with effect from May 1.

Dhoray and the PSA were represented by former attorney general Anand Ramlogan,SC, Kent Samlal, Jayanti Lutchmedial and Vishaal Siewsaran. Representing the State were Douglas Mendes,SC, Simon de la Bastide, and Svetlana Dass.