The Court of Appeal has ruled that the Government’s brief move to implement a mandatory data collection exercise for the implementation of property tax in 2017 was illegal and breached citizens’ constitutional rights.
Delivering a written judgment on Friday, Appellate Judges Peter Rajkumar, Charmaine Pemberton and Vasheist Kokaram reversed the decision of High Court Judge Jacqueline Wilson, who dismissed civic activist Devant Maharaj’s lawsuit on the issue in 2018.
Rajkumar, who wrote the substantive judgment, ruled that the Commissioner of Valuations had no legal authority under Section 6 of the Valuation of Land Act to require Maharaj and other property owners to submit a valuation return form (VRF) on or before June 10, 2017 and that property owners were under no corresponding obligation to do so.
Rajkumar and his colleagues stated that Maharaj was only entitled to declarations over the policy, which was clarified by the Government after Maharaj brought his lawsuit.
“Because the commissioner reversed course at the first opportunity, and the evidence suggests inadvertence rather than high-handed conduct or intent to breach statute or the Constitution, declarations of breaches will therefore suffice,” Rajkumar said.
He was also careful to note that the judgment did not extend to the Government’s current data collection exercise which is being done under a different statutory regime. The current deadline for submission under the new policy, which is yet to be challenged, is January 31.
“Nothing herein is intended to be construed as affecting that exercise which is not before this court on this appeal,” Rajkumar said.
While the decision in the case may mean that the forms that property owners, who would have submitted them on the basis of the previous mandatory nature of the policy before it was reversed, cannot now be used, the panel suggested that some affected persons may wish to leave their data in the system for use under the current scheme.
“Some persons may be content to have their information remain with the commissioner even though they provided it on the basis that it was mandatory that they do so rather than go through the entire exercise at such future time if required,” Rajkumar said.
The appeal panel also rejected claims that the lawsuit was academic because the policy was clarified months after being implemented.
“The public would be entitled to know whether in fact it was justified in law by statute, or even whether constitutional breaches had been committed,” Rajkumar said.
As a secondary issue in the case, the appeal panel ruled that previous policy breached Maharaj’s constitutional rights to protection of the law and respect for his private life.
The panel noted that illegal mandatory policy for the disclosure of personal information such as telephone numbers and email addresses caused the breach of his right to private life.
“A Government department seeking personal information from a citizen in a manner which conveys the impression that the information is to be supplied on a mandatory basis, failing which there exists the possibility of sanctions, criminal in nature, is a matter that is far more serious than a simple request for telephone numbers and email address would at first sight suggest,” they said.
They also rejected suggestions that no breach occurred because the information was easily publicly accessible.
“If it were publicly accessible in that form then there would have been no need for that portion of the data collection exercise,” they said.
While Rajkumar’s colleagues agreed with his judgment, Kokaram sought to separately address the breach of respect for private life.
“The unlawful demand for this private information robs the interaction between the individual and the State of its legitimacy. An illegitimate power to make the request places the demand in the sphere of exclusion,” Kokaram said.
“In this public situation, the private interest to be left alone does not give way to the government interest in intrusion into an individual’s privacy as it is not a legitimate advancement of the public interest. The intrusion every so slightly still amounts to a constitutional breach,” he added.
In a press release issued shortly after the judgement was handed down, Maharaj said he was grateful for the outcome.
“I brought this case in the public interest because I felt that citizens were being treated unfairly. People were being intimidated and bullied into providing sensitive personal information by the Commissioner of Valuations without any regard to their constitutional right to privacy,” he said.
Maharaj also expressed hope that his legal victory may inspire other citizens to pursue public interest lawsuits.
“Public interest litigation is not something that should be discouraged because it is vital to democracy and the preservation of the rule of law,” he said
Maharaj was represented by Anand Ramlogan, SC, Renuka Rambhajan, Kent Samlal, Jayanti Lutchmedial, Jared Jagroo, and Vishaal Siewsaran.
Deborah Peake, SC, Ravi Heffes-Doon, and Kendra Mark-Gordon represented the Commissioner of Valuations, while Fyard Hosein, SC, Rishi Dass, and Sasha Bridgemohansingh represented the Office of the Attorney General.
