[UPDATED] Privy Council: BIR, Customs workers must make their choice on TTRA

THE Privy Council has ruled that public servants at the Board of Inland Revenue (BIR) and the Customs and Excise Division (CED) are required to make a decision on their future regarding integration into the TT Revenue Authority (TTRA); although the constitutionality of the authority is still before the court.

The Revenue Authority Act was proclaimed with an effective date of May 1, 2023, and was scheduled to take effect on August 1, 2023.

However, Terrisa Dhoray, a customs officer, challenged the lawfulness of the act.

She contended that certain segments of the legislation were unconstitutional as they sought to interfere with the terms and conditions of employment of public servants currently assigned to the CED and Inland Revenue Division (IRD).

Dhoray also claimed the government did not have the power to delegate its tax-revenue-collection duties.

On June 26, a Public Services Association (PSA) legal team, led by former attorney general Anand Ramlogan, SC, asked the Court of Appeal to specifically direct a stay of the implementation and operationalisation of section 18 of the act.

The section gave the 1,200 affected public officers three months to decide on their future employment in the operationalisation of the TTRA.

They have the choice to resign from the public service, accept a transfer to the TTRA or be transferred to another office in the public service.

The initial deadline for BIR and CED employees to choose one of the options given to them was July 31, 2023.

There were at least five other extensions, with the last being July 31, 2024.

That drew the ire of the PSA after letters were sent out to BIR and CED staff on June 25 to exercise their option, although a limited stay was in effect.

On June 4, the judges granted the limited stay until September 25.

At an expedited Privy Council hearing on July 18 to address Dhoray’s claim, Ramlogan argued no changes affecting the BIR and CED employees should be made until the council had delivered its ruling on the matter.

“The effect on the affected workers is the distress and inconvenience of having to select one of those options in the face of a challenge to the legislation.

“Bearing in mind that those options include voluntary retirement as well, it really does place public officers in a very unenviable and unfair position.”

Ramlogan said he believed it was fair if the status quo that had been maintained throughout the course of the litigation was protected and preserved.

However, Douglas Mendes, SC, arguing on the State’s behalf, said the employees should at least make a decision to allow for a more timely transition process if the appeal is dismissed and the government is given the green light to proceed with operationalising the TTRA.

“All we are suggesting is that the officers exercise their option. There will be internal assessing of the option, but nothing will happen until your lordships have rendered a decision. If you say that the act is unconstitutional, then that’s it. Nothing happens. Everybody remains exactly where they are and they will not be prejudiced.”

Mendes added if the government had to wait until after the ruling to even start the process, it would further delay the operationalisation of the authority and prejudice the public interest.

The council said that while the case raised a matter of very considerable public importance, it was “content” with the undertaking provided by the Government.

“We will accept the undertaking rather than requiring to order a stay.”

During the hearing, Ramlogan told the court that Chapter 9 of the Constitution, which speaks to the establishment of independent service commissions, was framed to ensure civil servants were insulated from politics.

He said it was designed so that politicians were unable to use promotions, discipline and transfers as tools to get civil servants to do their bidding.

Ramlogan argued as a private state entity, the Revenue Act removed that protection from TTRA employees and also allowed for the possibility of a government using the authority as a political tool to manipulate and oppress opponents.

“If you have indirect or direct political influence, you can target the journalists who are not singing from the same hymnbook as the government.

“If elections are coming, you can target political finances of the opposition party and hit them with an audit. And you know that will send the right message to them in a very subtle way on the eve of election as to where you should or shouldn’t donate, as the case may be.”

Ramlogan said that given the power the organisation holds, there were too many unanswered questions that left room for political manoeuvring.

“Who decides who is to be selected to be audited if you have limited resources? Is it the director general? Is it the director of enforcement?

“An audit could close down a man’s business. Who exercises that power?”

He also pointed to the composition of the board and said there was nothing in the act preventing the government from stacking the board with political supporters.

In response, Mendes argued the board was not involved in the daily activities of the TTRA and did not have the power to direct the authority’s daily functions.

Mendes also noted the Minister of Finance could only give general directions and had “no power whatsoever in the day-to-day running of the organisation.”

He explained the deputy director general was a public officer and the director general’s appointment and removal had to be approved by Parliament.

He said further that the TTRA was subdivided broadly into an assessment division and an enforcement division.

The latter is headed by the deputy director general of enforcement (under which what is deemed coercive powers reside) and staffed by public officers.

The structure, Mendes argued, provides safeguards for the arm of the TTRA, which requires political insulation.

“So the actions of the minister will be subject to scrutiny by Parliament and by the public. As a result, then there is little room for the minister to intervene on a daily basis and direct, or to give any directions or any influence, to use taxation powers to victimise political opponents.”

He also argued that employees who no longer are protected by Chapter Nine of the Constitution would be protected by labour laws and various stages of the appellate process to challenge unfair decisions.

The Privy Council will submit its ruling in the coming months at the start of the upcoming legal term.

This story has been adjusted to include additional details. See original post below.

THE Privy Council has ruled that public servants at the Board of Inland Revenue (BIR) and the Customs and Excise Division (CED) are required to make a decision on their future regarding integration into the TT Revenue Authority (TTRA), although the constitutionality of the authority is still before the court.

On June 26, the Public Services Association’s legal team, led by former attorney general Anand Ramlogan, SC, asked the Court of Appeal to specifically direct a stay of the implementation and operationalisation of section 18.

The section gave the 1,200 affected public officers three months to decide on their future employment. They have the choice to resign from the public service, accept a transfer to the TTRA or be transferred to another office in the public service.

The initial deadline for BIR and CED employees to choose one of the options was July 31, 2023. There were at least five other extensions, with the last being July 31, 2024.

That drew the ire of the PSA after letters were sent out to BIR and CED staff on June 25 to exercise their option, although a limited stay was in effect. On June 4, the judges granted the limited stay until September 25.

At an expedited Privy Council hearing on July 18, Ramlogan argued no changes affecting the BIR and CED employees should be made until the council had ruled on the constitutionality of the TTRA.

“The effect on the affected workers is that the distress and inconvenience of having to select one of those options in the face of a challenge to the legislation.

“Bearing in mind that those options include voluntary retirement as well, it really does place public officers in a very unenviable and unfair position.”

Ramlogan said he believed it was fair that the status quo that had been maintained throughout the course of the litigation was protected and preserved.

However, Douglas Mendes, SC, arguing on the State’s behalf, said the employees should at least make a decision to allow for a more timely transition process if the appeal is dismissed and the government given the green light to proceed with operationalising the TTRA.

“All we are suggesting is that the officers exercise their option. There will be internal assessing of the option, but nothing will happen until your lordships have rendered decision. If you say that the act is unconstitutional, then that's it. Nothing happens. Everybody remains exactly where they are and they will not be prejudiced.”

Mendes added if the government has to wait until after the ruling  even to start the process, it will further delay the operationalisation of the authority and prejudice the public interest.

The council said while the case raised a matter of very considerable public importance, it was “content” with the undertaking provided by the Government.

“We will accept the undertaking rather than requiring to order a stay.”

The Privy Council will submit its ruling in the coming months, at the start of the upcoming legal term.