Derek Achong

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.