Terrisa Dhoray v Attorney General of Trinidad and Tobago and another

The Trinidad and Tobago Revenue Authority Act, Act No 17 of 2021 (“the Act”) was passed by Parliament by a simple majority in 2021 and received the assent of the President of Trinidad and Tobago on 23 December 2021. The Act creates a new (semi- autonomous) body corporate, the Trinidad and Tobago Revenue Authority (referred to below as “the Authority”), which will be an agent of the state. Not all provisions of the Act have come into operation. On 15 March 2022, parts of the Act came into force to allow for the appointment of the Board of the Authority (“the Board”) and other matters. For the time being the Authority has the function of advising the government on matters relating to taxation but is not yet exercising its revenue functions under the Act.

The Act provides that the Authority shall have functions (among others, the assessment and collection of tax under the revenue laws) that have to date been performed by the Inland Revenue Division (under the Board of Inland Revenue) and the Customs and Excise Division (under the Comptroller of Customs and Excise), both departments of central government in the Ministry of Finance. Staff currently employed in those Divisions are designated as “public officers” by section 3 of the 1976 Constitution of the Republic of Trinidad and Tobago (“the Constitution”). This means that they hold office in the service of the government under the Constitution and attract the protection afforded to public officers by chapter 9 of the Constitution. That protection includes the vesting of 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 service of the government. By means of the Public Service Commission and chapter 9 protection, public officers are immunised from improper political pressure and interference.

Under the Act a significant proportion of staff employed to discharge the revenue functions devolved to the Authority will not be “public officers” within the meaning of the Constitution: they will be employed by the Authority and appointed either by the Minister of Finance (“the Minister”) or by the Board and not by the Public Service Commission. They will not therefore attract the protection of chapter 9 of the Constitution. The appellant challenges this consequence of the Act. She contends that the Act is unconstitutional insofar as it devolves revenue functions to the Authority to be discharged by private employees.

The appellant is a public officer in the Customs and Excise Division performing functions that will in due course be performed by employees of the Authority. She contends that tax and tax administration and enforcement are critical to government. Her case depends on two principal arguments. First, she contends that there are certain core or intrinsic governmental functions that are within the province of government and can only be entrusted to public officers who enjoy the protection of chapter 9 of the Constitution. Secondly, the transfer by the Act of intrinsically governmental functions to people who are not public officers and who do not enjoy the protection of chapter 9 is therefore contrary to the scheme and intent of the Constitution. She seeks a declaration that the Act is inconsistent with the Constitution and therefore, by operation of section 2 of the Constitution, void to the extent of that inconsistency, together with a further declaration that implementation of the Act infringes or threatens to infringe her rights guaranteed by the Constitution.

By a judgment delivered on 17 November 2023, James J dismissed the appellant's claim. On appeal by the appellant, the Court of Appeal (Bereaux, Pemberton, DeanArmorer JJA) upheld that decision by a judgment delivered on 28 May 2024. Final leave to appeal to the Judicial Committee of the Privy Council was granted on 7 June 2024 and the appeal has been expedited.

The appellant has also sought a stay of the operation of section 18 of the Act pending the determination of her claim. Section 18 gives eligible public officers the option to transfer to the employment of the Authority on terms and conditions no less favourable than those presently enjoyed, or to retire from the public service on terms to be agreed, or to remain in the public service in a different role. Section 18(2) originally provided for the exercise of these options within a period of three months of the commencement of section 18, but that period has been extended from time to time, primarily for the purpose of facilitating the hearing of these proceedings. The option period has now been extended to 31 July 2024. Further, the Minister has given an undertaking, that any option exercised pursuant to section 18 of the Act on or before 31 July 2024 will be processed internally by the Ministry of Finance but not implemented or put into effect pending the hearing and determination of this appeal. The undertaking is considered acceptable by this Board, balancing the interests of the appellant and the wider public interest.

Part II of the Act deals with the Authority. Section 5(1) of the Act establishes the Authority as a body corporate known as “the Trinidad and Tobago Revenue Authority”, and section 5(2) provides that the Authority shall be an agent of the state.

Section 6 identifies the functions of the Authority as follows:

“6 (1) Subject to sections 8 and 14, the functions of the Authority are—

(a) the assessment and collection of taxes under the revenue laws;

(b) the administration of the revenue laws;

(c) the enforcement of the revenue laws;

(d) the enforcement of border control measures subject to any other written law;

(e) subject to subsection (2), the provision of revenue collection services to any statutory or other body to collect public monies;

(f) the facilitation of legitimate trade; and

(g) to advise the Government on matters relating to taxation.”

The “revenue laws” referred to are set out in the schedule to the Act and include: the Income Tax Act, Chap 75:01 and all other tax Acts; the Excise (General Provisions) Act Chap 78:50 and all other Acts which make provision in relation to excisable goods; and the Customs Act Chap 78:01 and all other Acts which make provision for the control of traffic through the borders of Trinidad and Tobago.

Part III of the Act deals with the Board Management of the Authority. Section 7(1) establishes the Board Management, comprised of nine members appointed by the Minister, to include a Permanent Secretary of the Ministry, a person nominated by the Tobago House of Assembly, an attorney-at-law, a chartered or certified accountant, two other persons from the private sector and, ex officio, the Director General (whose role and responsibility is described below): section 7(2). Section 7(3) provides that members of the Board shall be selected from among persons who have demonstrated the capacity to oversee, and have considerable experience in overseeing, the management of a large diverse organisation; and who have qualifications and experience in the areas of tax or customs administration, corporate management or areas such as accounting, economics, law, business, public administration, human resource management, industrial relations, project management, or other relevant fields. Members of Parliament, the Tobago House of Assembly, or a municipal corporation, and those employed on a full-time basis as a public officer are disqualified from appointment to the Board: section 7(4) (b) and (c).

The Chairman and Vice-Chairman of the Board are appointed for five-year terms and the other members (except for the Permanent Secretary and Director General) for three-year terms: section 10. The terms and conditions of appointment of all members (save for the Permanent Secretary and Director General) are determined by the Minister: section 10(3).

The Board's functions and powers are prescribed by section 8 of the Act. This provides:

“8 (1) Subject to subsection (2), the Board shall be responsible for formulating, approving and ensuring the implementation of management policies in relation to—

(a) the approval and review of the policy of the Authority;

(b) the monitoring of the performance of the Authority in the carrying out of its functions;

(c) the finances, real property and other assets and resources of the Authority, the securing of contracts, the procurement of goods and services and other administrative activities;

(d) human resources, including those related to recruitment, remuneration, promotion, training and development, performance assessment, conditions of work, discipline, termination of employment and superannuation benefits;

(e) service standards and performance targets;

(f) a code of conduct for the employees of the Authority;

(g) the strategic plan, annual budget, monitoring of operation plan and annual report of the Authority;

(h) the mandate for collective bargaining and approving collective agreements in relation to the terms and conditions of employment of persons employed by the Authority;

(i) probity in the use and allocation of resources;

(j) the principles of good corporate governance procedures and practice;

(k) the internal audit of the Authority; and

(l) enterprise risk management, other...