The Pub­lic Ser­vices As­so­ci­a­tion (PSA) will have to ap­proach the Unit­ed King­dom-based Privy Coun­cil if it hopes to stop the on­go­ing op­er­a­tional­i­sa­tion of the long-tout­ed T&T Rev­enue Au­thor­i­ty (TTRA).

Dur­ing a vir­tu­al hear­ing yes­ter­day, Ap­pel­late Judges Mark Mo­hammed, Char­maine Pem­ber­ton, and Mi­ra Dean-Ar­mor­er re­fused to re­open the case to clar­i­fy a stay grant­ed ear­li­er this month, which was be­lieved to have stopped op­er­a­tional­i­sa­tion.

The stay was grant­ed on June 4, as the pan­el gave the PSA leave to pur­sue a fi­nal ap­peal over the dis­missal of its law­suit over the con­sti­tu­tion­al­i­ty of the T&T Rev­enue Au­thor­i­ty Act. State at­tor­neys and those for the PSA sought clar­i­fi­ca­tion from the Supreme Court Reg­is­trar, as while they be­lieved that the pan­el had stayed op­er­a­tional­i­sa­tion, the writ­ten or­der sub­se­quent­ly pro­vid­ed ap­peared to con­vey a dif­fer­ent po­si­tion.

The PSA made an of­fi­cial ap­pli­ca­tion for clar­i­fi­ca­tion from the pan­el last week af­ter the Min­istry of Fi­nance is­sued cor­re­spon­dence to all staff at the In­land Rev­enue Di­vi­sion (IRD) and the Cus­toms and Ex­cise Di­vi­sion (CED), giv­ing them un­til Ju­ly 31 to de­cide whether they are will­ing to join the TTRA.

Af­ter hear­ing sub­mis­sions from lawyers for both par­ties yes­ter­day, the ap­peal pan­el point­ed out that the stay grant­ed was based on a draft pro­vid­ed by the PSA’s lawyers in their stay ap­pli­ca­tion.

Not­ing that the PSA had a du­ty to clear­ly ar­tic­u­late the or­der be­ing sought in its court fil­ings and that nei­ther of the par­ties took is­sue with their or­der when it was ini­tial­ly grant­ed, the judges point­ed out that the stay was to pre­serve the “sta­tus quo” when they re­ject­ed the PSA’s ap­peal over the dis­missal of its law­suit.

“The sta­tus quo was that the TTRA Act was de­clared to be con­sti­tu­tion­al. Ac­cord­ing­ly, there was no im­ped­i­ment to im­ple­men­ta­tion,” Jus­tice Mo­hammed said.

The po­si­tion adopt­ed by the Ap­peal Court on the is­sue means that Fi­nance Min­is­ter Colm Im­bert can­not be fault­ed for go­ing ahead with im­ple­men­ta­tion while the case is await­ing a hear­ing and de­ter­mi­na­tion by the Privy Coun­cil.

Pre­sent­ing sub­mis­sions be­fore the pan­el, the PSA’s at­tor­ney, Anand Ram­lo­gan, SC, sug­gest­ed that the court’s han­dling of the case would be crit­i­cised by the Privy Coun­cil when they weigh in on the sub­stan­tive case and pos­si­bly the stay on Ju­ly 18.

“If this mat­ter goes to the Privy Coun­cil, imag­ine the ba­nana re­pub­lic they would con­sid­er us to be,” Ram­lo­gan said. “The ad­min­is­tra­tion of jus­tice has been brought in­to dis­re­pute.They have stolen a march on us and ex­ploit­ed what they per­ceived to be a loop­hole,” he added.

Re­spond­ing to the sub­mis­sions, Dou­glas Mendes, SC, de­nied any al­le­ga­tions of wrong­do­ing lev­elled against the State. While Mendes ad­mit­ted that he and his team ini­tial­ly be­lieved the in­ter­pre­ta­tion prof­fered by the PSA, he stat­ed that they were bound by the ex­act words of the writ­ten or­der, which was con­firmed by the pan­el through the reg­is­trar.

“The court was un­equiv­o­cal and force­ful in its re­ply. We were act­ing ex­act­ly in ac­cor­dance with the or­der,” he said.

He sug­gest­ed that while the court is per­mit­ted to clar­i­fy er­rors in judg­ments, it could on­ly do so if its in­ten­tions were not clear­ly re­flect­ed in its or­der.

About the case In the sub­stan­tive law­suit, the PSA, through its mem­ber and cus­toms of­fi­cer Teris­sa Dho­ray, chal­lenged the con­sti­tu­tion­al va­lid­i­ty of the leg­is­la­tion, which seeks to re­place the In­land Rev­enue De­part­ment and the Cus­toms and Ex­cise Di­vi­sion 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 gives pub­lic ser­vants three months to de­cide 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. She 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 Dho­ray’s le­gal chal­lenge. 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.

Jus­tice Dean-Ar­mor­er not­ed that en­force­ment will still be per­formed by pub­lic ser­vants, who fall un­der the re­mit of the Pub­lic Ser­vice Com­mis­sion (PSC). Dho­ray was rep­re­sent­ed by 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 Leanne Thomas.