LONDON, CMC -The London-based Judicial Committee of the Privy Council Monday unanimously dismissed an appeal filed by a public officer, Terrisa Dhoray, saying that the Trinidad and Tobago Revenue Authority Act does not breach the Constitution.
“We won the case. This required tremendous effort against the relentless opposition from the UNC(United National Congress) and the PSA (Public Service Association). Now we can modernize revenue collection,” Trinidad and Tobago’s Finance Minister Colm Imbert said in a brief statement following the Privy Council ruling.
Lady Simler, who delivered the unanimous judgment of the Privy Council, Trinidad and Tobago’s highest and final court, said the correct approach in this appeal is to focus on the rationale or purpose of chapter 9 of the Constitution.
The five-member Privy Council said it is also to focus on the protections for public officers, which it contains to determine whether devolving tax functions to the Authority contradicts its terms or the assumptions on which it is based.
“This is preferable to the approach taken by the Court of Appeal, which sought to distinguish between core governmental functions, which must be performed by public officers, and other governmental functions, which can be transferred,” the Privy Council ruled.
The Trinidad and Tobago Revenue Authority Act, Act No 17 of 2021, was passed by the Parliament of Trinidad and Tobago by a simple majority in 2021 and received the President’s permission on 23 December 2021.
The Act creates the Trinidad and Tobago Revenue Authority (TTRA), a new, semi-autonomous body whose functions have been performed by the Inland Revenue Division and the Customs and Excise Division, both departments of central government in the Ministry of Finance.
Staff currently employed in those Divisions are designated as “public officers” under the 1976 Constitution of the Republic of Trinidad and Tobago. This entitles them to certain constitutional protections under Chapter 9 of the Constitution.
These include vesting the power to appoint public officers in the Public Service Commission, which also has the power to promote, remove, and exercise disciplinary control over public officers employed in the government. Using the Public Service Commission and Chapter 9 protection, public officers are immunized from improper political pressure and interference.
Under the Act, a significant proportion of staff employed to discharge the revenue functions devolved to the TTRA will not be “public officers” within the meaning of the Constitution and will not attract Chapter 9 protection.
Dhoray, a Customs and Excise officer, had brought a claim in the High Court against the Trinidad and Tobago government seeking a declaration that the Act is inconsistent with the Constitution because it devolves revenue functions to the Authority to be carried out by private employees, rather than public officers.
The High Court dismissed the appellant’s claim. She appealed to the Court of Appeal, which upheld the High Court’s decision.
In its ruling on Monday, the Privy Council unanimously dismissed the appellant’s appeal, holding that the TTRA Act does not breach the Constitution.
Lady Simler said that the rationale for protecting Chapter 9 is twofold.
First, the Constitution’s independent Service Commissions are composed, structured, and regulated to ensure that public officers are independent and immune from political pressure.
The Privy Council said the purpose of giving public officers security of tenure and protection from political interference in decisions on appointment, transfer, and promotion is to protect them from the political influence or interference to which they would otherwise be vulnerable by the government of the day.
Secondly, the public is protected from political interference by having a cadre of public servants who can act independently of any particular government. In both cases, the risk to public servants and the public arises from these public officers being institutionally part of government and subject to the direction of ministers.
However, the Privy Council noted that the Constitution does not expressly require that core government functions be performed or delivered only by public officers covered by Chapter 9.
By contrast, section 74(3) of the Constitution is consistent with the Constitution authorizing Parliament to transfer executive functions to persons other than the President.
The Privy Council noted that Chapter 9’s rationale is to protect public officers and, indirectly, the public from improper political pressure because public officers are institutionally part of the government. If the function performed by such officers is removed from government and put into the hands of a separate statutory body, there is no longer any need for those protections, provided that two conditions are satisfied.
First, the separate statutory body must be independent, not a device or a sham. Secondly, there must be adequate and effective safeguards to ensure that there is, in fact, independence and sufficient protection for employees from political interference from the executive [
“In this case, both conditions are met. There is no suggestion that the creation of the Authority was a device or a sham, and there are effective safeguards to protect the staff and officers of the Authority and members of the public from executive interference. Accordingly, the Act is not inconsistent with the Constitution,” the Privy Council ruled.
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