Reviewing the Provisional Collection of Taxes Act -taking the lazy way out?

house-of-assembly

 I always believe that ultimately, if people are paying attention, then we get good government and good leadership. And when we get lazy, as a democracy and civically start taking shortcuts, then it results in bad government and politics. –  Barack Obama

The Barbados Act gives the State the ability to impose new taxes without the Citizen having the opportunity to vet those taxes

The Provisional Collection of Taxes Act (PCTA) Cap 85 of the Laws of Barbados gives the Minister of Finance through the Parliamentary process the power to make and have resolutions passed allowing taxes to be collected without the relevant tax legislation having been enacted.

The Commencement date for this Act is June 30th 1967.

The Act is very short and contains the following features:

  1. The Act covers existing taxes as well as new taxes.
  2. Once contained in the approved budgetary proposals of the Minister of Finance, they have effect on the date announced by the Minister as if the appropriate legislation had been enacted.
  3. The legislation has to be implemented within four months of the date of the proposals made by the Minister of Finance in the House of Assembly.
  4. Where the legislation is not introduced and passed within the required time frame any taxes paid under that legislation are to be refunded.

The UK Act is fundamentally different from the Barbados Act

The purpose of this mechanism seems to be to allow the State to continue to collect taxes until the bill authorising such collection has been passed into law. The legislation was adapted  from similar UK legislation.  The reasoning behind this Act in the UK was that income tax and corporation tax were considered to be annual taxes, and could not be collected without the passage of a Finance Bill which would always take some time before the Royal Assent was given. In the interim the State could continue to collect taxes.

The UK replaced its 1913 Act with new legislation in 1968. The UK PCTA of 1968 is somewhat different from the Barbados legislation in the following material respects:

  1. It provides for the renewal for a further period of taxes already in force, whether at the same or different rate and with or without modification.
  2. The resolution must have a statement that it is expedient in the public interest to begin immediate collection of taxes without the enactment of the relevant legislation.
  3. It does not apply to the imposition of new taxes.

The PCTA as a Mechanism for the Imposition of New Taxes is completely inappropriate

The PCTA would work well in the circumstances outlined in the UK Act. The taxes and their collection  would have been in effect for the past year at least and the PCTA would permit the seamless collection of taxes with no disruption of the activities of the taxpayer and the taxpayer would have had the opportunity to review the legislation previously. The mechanism would also work well for a change in tax rates.

It is submitted however that the mechanism does not work well for the imposition of new taxes.

In Barbados the further practice has developed that in circumstances where the legislation has not been enacted within the stipulated period of four months an Act validating the collection of the taxes without the appropriate legislation can be enacted.

The National Social Responsibility Levy is a new tax which should never have been imposed without the provision of legislation available for Scrutiny.

According to the Summary to the Budgetary Proposals of 2016 which appear as an Appendix thereto, a National Social Responsibility Levy (NSRL) was to be introduced from September 1, 2016. The Levy was to be introduced at a rate of 2% on all imports. The levy would also be applied to goods manufactured in Barbados in order to avoid breach of World Trade Organisation rules against imposing discriminatory levies on imports.  There would be no imposition of the levy on goods imported to be used in local manufacturing in order to avoid a double imposition of the levy.

The Budgetary proposals of the Minister of Finance were delivered in the House of Assembly on August 16, 2016. The practice direction from the Barbados Revenue Authority was issued on August 30, 2016. Despite the practice direction there was still a great deal of uncertainty as to the mechanism for the imposition of the tax.

It is submitted that this was insufficient time to put into operation a new tax. There is no obligation by the Minister of Finance to use the PCTA even though available as a legislative tool. Far less disruption would have occurred had the practice of consultation and  running models for the imposition and collection of taxes been engaged.

The Constitution allows the State to tax its Citizens but does not give the State the right to circumvent the legal fetters meant to protect the Citizen.

Let us start at the beginning. Money can be considered property and  Section 16 of  the Constitution of Barbados does protect Barbadians from the deprivation of property  “ except by or under the authority of a written law”. Within that very section   there is a carve out for taxation where the act of deprivation is “ in satisfaction of any tax, duty, rate, cess or other post”. Nevertheless despite this carve out one could argue that exceptions to fundamental freedoms should be construed as narrowly as possible in order to avoid the creeping erosion of such rights.

Dr. Francis Alexis in his treatise Changing Caribbean Constitutions states:

Where the limitation of a right is allowed by the Constitution, what is done must have a legitimate aim or objective regarding the permitted limitation. The measure provided for by the law must be proportionate to that aim, the law must not be disproportionate, overbroad, excessive or too wide. There must be proportionality between the measure applied and the mischief being cured.

In support of this position he quotes Lord Diplock in Ryan v. A-G (1980) A.C 718 at 718E.

In the case of the NSRL the State is seeking to impose a new tax which prima facie would be in breach of the fundamental rights of Citizens in the circumstances where there is no written law. Is the PCTA the written law to which the Constitution refers? Arguably it is not, since it is not a substantive Act itself which contains any charging provisions by which a tax could be levied and more worrisome any safeguard provisions for disputing the levying of such taxes.

Even if one were to accept that the PCTA could be used for the imposition of new taxes that piece of legislation includes a fetter in favour of the Citizen in that it gives the State four months  to put its house in order. In many instances the State side steps that fetter in favour of passing a validation act in order to cure the breach.  The purpose of legislation in taxation is to ensure that there is certainty and that the provisions of the law do not encroach upon the fundamental rights of the Citizen more than is necessary. It is submitted, that to then take the next step of validating such legislation erodes another mechanism to check the encroachment of the State on the rights of the Citizens.

If one were to embrace the argument of Dr. Francis Alexis one must look to the mischief which the State seeks to cure and determine its legitimacy. One can only guess that the State is seeking to avoid the process of  implementing a new tax through the process of writing a policy paper, consulting with stakeholders and passing the resulting legislation through Parliament and the Governor-General.  Is the ultimate mischief that the process is too time consuming? The Constitution is after all according to Section 1 of the Constitution the supreme law and one should tread cautiously when dealing with provisions which might facilitate a breach of the Constitution.  And the limitations to such rights and freedoms allowed by the State are according to section 11 of the said Constitution in existence to ensure that all Citizens enjoy them or are in the public interest, not to facilitate the State ignoring legal fetters in exchange for the quick collection of taxes.

The Constitution, fundamental rights and freedoms, tax legislation and short cuts do not go hand in hand.

It is unconscionable that the PCTA should be used to impose new taxes on Citizens and should be halted.

It would seem that the PC TA has strayed from its origins which was to allow the State to continue to collect existing taxes until it had a fresh mandate to do so under legislation. The PCTA raises too many Constitutional and moral issues in seeking to impose new taxes through this mechanism. The current approach of the State results in the State engaging in activities  which do deprive the Citizen of property but without the necessary scrutiny. The substance of the legislation is not circulated in the Gazette in order to give adequate notice to the Citizens and nothing is laid in Parliament to be scrutinised by the representatives of the people before implementation. New taxes should not be imposed on Citizens without the most careful scrutiny.

This means that the Citizen can not  determine the practical impact on him, his business or his household and more fundamentally whether it encroaches on any existing fundamental rights. The mad scramble to hold consultations and collect taxes within a matter of a few weeks may provide an adrenaline rush, however there can be  no reason good enough to sail so close to the abrogation of the rights of Citizens. The imposition of new taxes through the PCTA should be put to an end and the PCTA amended in order to remove the ability to impose new taxes through this piece of legislation.

Lynette Eastmond

On Harassment and Sexual Abuse: #LifeInLeggings

Over the last several days social media has been alight with personal accounts of sexual harassment, rape, sexual abuse and physical and verbal abuse which stemmed from the above atrocities. Persons, mostly women from the Caribbean, related to the world of social media some of their untold stories. What started as a flame has been the catalyst for many a conversation, discussion, vlog and even newspaper article. Many persons have now finally found the strength and courage to relay their experiences to their friends, associates, strangers – the world.

These posts have been a source of encouragement for some and a reminder to others that they are not alone in their experiences. It has also caused countless persons to reflect, do some retrospection and introspection and realise that they are or were a part of the problem. Many persons have apologised. Many have openly supported the victims and condemned the culprits. Society was also not left unscathed. We know that often at the heart of these issues is how we were conditioned and thus society was also thrown into the fire. In light of all of this, I have undertaken to set out below what the law offers to the victims of these inhumane, highly offensive acts.leggings

The Minor Offences Act Cap. 137 at Section 2 (1) says ‘ Any person who…

(c) wanders in the public streets or highways or in any place of public resort and behaves in a riotous or indecent manner;

(d) in any street, highway or public place accosts a passenger and offers to take him to the house or residence of a prostitute;

(e) loiters in any street highway or public place accosts a passenger and offers to take him to the house or residence of a prostitute;

(f) in any street, highway or public place, including a beach, without lawful authority or excuse (the proof whereof shall lie on the person accused), accosts, molests, threatens or harasses any person or follows him about;

commits an offence and is liable on conviction before a magistrate to a penalty of $2500 or to imprisonment for 2 years or both.’

Section 2(2) states that in this Section, ‘ “harass” means to

  • Use words, gestures and actions that annoy, alarm or abuse a person;
  • Insult, taunt or challenge a person in a manner likely to offend;
  • Use obscene and profane language to intimidate a person; or
  • Disturb or irritate especially by continued and repeated acts.’

A Sexual Harassment (Prevention) Bill is also in the works and is expected to afford greater protection to employees against sexual harassment in the workplace.

                                                                                                     – Kara-Je Kellman

“Do I Have To Go To Court?”

young man sitting thinking, contemplating - isolated on white

It depends.

If you are asking this question because you have started a matter in Court then you should definitely go to the court hearings, even if you have a lawyer. Your attendance at Court signifies that you are interested in the matter and it also shows respect for the Court and its proceedings. Further, you should attend the sessions in the event that the Court wishes to solicit any information from you which might not be within the personal knowledge of your attorney. If you are representing yourself you should not think twice about going to Court – just go!

If someone has initiated an action against you, the answer is still yes – for all of the reasons stated above.

If you are defending a criminal charge in Court then you should definitely turn up to Court on the specified date, unless you like the idea of being arrested. In this case, non-attendance is not harmless! In fact, the magistrate or judge may issue a warrant for your arrest. Your non-attendance at Court may be even more disadvantageous to you if you were on bail. The judicial officer may rescind bail and remand you into lawful custody since the main condition of bail is to appear at Court on the specified dates and times for the “calling” or hearing of your case.

If you are the virtual complainant in a criminal matter, you risk having your matter thrown out if you do not show up at Court for the trial of the matter.

You may be asking this question because you are considering your options for relief. The parties can assemble and with the aid of their attorneys begin negotiations with the aim of coming to an amicable agreement. Moreover, if you initiate a civil action at Court, at the first hearing or at some subsequent hearing, the Court may refer the matter to court-annexed mediation. The parties may also ask the Court to exercise that option. This process is intended to be less time consuming and allows for free discussion of issues with the goal of coming to an agreement with the professional assistance of a qualified mediator.

– Kara-Je Kellman

Gun Violence in Barbados: 100 Days Jail Before Bail?

Recently, there have been discussions on whether a person charged with an offence under the Firearms Act Cap. 179 of Barbados should be automatically sent to jail for 100 days or some other specified period before bail is available to him.gun_violence-1-pic

In my view, a person charged with an offence should be treated as innocent until he admits guilt or until he is found guilty. To implement laws which mandate the automatic remand of a person who is charged with a firearm offence not only usurps the power of the presiding judicial officer but defeats a fundamental principle of the rule of law, that is, a person is innocent until proven guilty. The Bail Act already sets out the circumstances under which a judicial officer may deny bail. The Bail Act also states what factors the judge or magistrate may consider when deciding whether or not to grant bail.

In my opinion, Barbados should not follow the twin island Republic of Trinidad and Tobago and amend its Bail Act to mandate that a person charged with certain firearm offences is not eligible for bail or that such a person must spend a certain period on remand before he or she can be considered for bail. Of course, the Court should always seek to balance the interests of society with the interests of the accused person. If the person charged is fit for bail in accordance with the Bail Act, the judicial officer should exercise his discretion to grant him bail.

                                                                                                                   – Kara-Je Kellman

Unfair Dismissal Under The Employment Rights Act of Barbados

unfair-dismissal-picThe Employment Rights Act (“the Act”) gives an employee who has been continuously employed for at least one year, the right not to be unfairly dismissed. However, the Act also gives an employer the right to dismiss an employee for certain reasons under Section 29 of the Act or for some other substantial reason of a nature such as to justify the dismissal of the employee. Section 29 allows for the dismissal of an employee for reasons relating to the capability of the employee to do the work he was employed to do, the conduct of the employee or where the employee was redundant but subject to Section 31.

However, before dismissing an employee for a reason relating to his conduct or capability, the employer must inform the employee of the accusation against him and allow him an opportunity to state his case.

Whether or not the dismissal was unfair depends on whether the employer acted reasonably or unreasonably in treating the reason as a sufficient cause for dismissing the employee and whether the employer complied with the rules set out in Part A of the Fourth Schedule. These rules include but are not limited to the following: an employee must not be dismissed for his first breach of discipline unless it is gross misconduct; where a breach of discipline does not amount to gross misconduct, the employee should be warned and given a reasonable opportunity to make a correction before more stringent disciplinary action is taken.

The Act provides for many instances where an employee may be deemed to be unfairly dismissed. Some examples of these instances are: if the reason for the dismissal relates to his race, colour, gender, age, marital status, religion, political opinion or affiliation, national extraction, social origin or indigenous origin; if the reason for the dismissal is that: he refused to carry out an unlawful instruction from the employer;   he participated in trade union activities outside, or with the permission of the employer during, working hours; the employee is or was a disabled person in circumstances where the employer could reasonably have been expected to offer the employee alternative employment.

Where it is found that an employee was unfairly dismissed, the Employment Rights Tribunal which was established under the Act, has the power to order the reinstatement or re-engagement of the employee where the appropriate circumstances exist or to make an award of compensation. If either party is dissatisfied with the decision of the Tribunal, that party may appeal to the Court of Appeal.

                                                                                                                                          – Kara-Je Kellman

What Shanique Myrie v The State of Barbados Teaches Us About The Award of Damages Under The Revised Treaty of Chaguaramas Regime

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Shanique Myrie, a Jamaican national, had claimed that prior to deportation from Barbados to Jamaica in 2011, she was subjected to a body cavity search and detained in an unsanitary cell overnight. She had also claimed that she was discriminated against on the basis of her nationality. As a result, she asked the Caribbean Court of Justice (“the Court”) to make an Order for Barbados to pay special and punitive damages and an Order for the recovery of all her legal costs. The Court considered the matter applying the Revised Treaty of Chaguaramas (“the RTC”) and a 2007 Decision of the Heads of Government of CARICOM.

According to the Court, in order for a claim for damages to succeed, the Claimant must show that the RTC provision breached was intended to benefit her, the breach must be a serious one, the damages or loss should be substantial and there should be a causal link between the breach by the State and the loss or damages claimed.

The Court stated that under the RTC regime, the damages that can be awarded by the Court are compensatory. There is no place for exemplary or punitive damages before the Court in its original jurisdiction. The Court referred to the case of Trinidad Cement Limited TCL Guyana Incorporated v. The State of the Co-operative Republic of Guyana [2009] CCJ 1 (OJ) where this principle was established. The reason behind this is, the civil law jurisdictions in the Community do not allow for the award of exemplary damages and therefore this remedy cannot be a part of a legal structure that embraces both traditions.

The compensatory damages that can be awarded in international law are those for pecuniary loss or damage and non-pecuniary loss or damage. Pecuniary loss or damage means that such loss or damage can be calculated in terms of dollars and cents.  For example, you may claim that your bag which you bought for S50.00 was destroyed and therefore ask to be compensated $50.00 for the loss and damage. It follows that non-pecuniary loss or damage cannot be quantified in monetary terms. This type of compensation is usually for mental suffering, injury to feelings, humiliation, degradation, loss of social position or damage to reputation.

The Claimant claimed the sum of JA $112,000.00 for the airline ticket and medical expenses. This amount was not challenged by Barbados and the Court held that she was entitled to that amount for pecuniary damages.

The Court was of the view that the body cavity search and the conditions of her overnight detention constituted a very serious breach of her right to enter Barbados free of hassle and harassment. The Court then sought to determine whether this treatment was sufficiently related to the exercise of her right of entry. The Court found that the breach of the right encompassed all that took place at the airport in Barbados between the time of her arrival there and her deportation the following day.

The Court pointed out that it was not awarding damages for human or fundamental rights breaches; neither was it seeking to create an appropriate remedy for assault or unlawful detention since these are not causes of action actionable before the Court in its original jurisdiction. The Court stated that it was instead awarding damages for breach of the right to enter Community States without harassment and hassle. The Court was of the view that there must be a high award of damages for the breach since it was accompanied by serious circumstances.

Consequently, the Court ordered the State of Barbados to pay the Claimant Bds $2,240.00 (JA $112,000.00) for pecuniary damages and Bds $75,000.00 for non-pecuniary damages. The Court also ordered the State of Barbados to pay the Claimant’s legal costs.

                                                                                                                                         – Kara-Je Kellman

Shanique Myrie v. The State of Barbados: CARICOM Nationals’ Right of Entry Into Community States

In Shanique Myrie v. The State of Barbados [2013] CCJ 3, the Caribbean Court of Justice (“the Court”) sitting in its original jurisdiction was faced with an issue of major importance, that is, whether and to what extent CARICOM nationals have a right of free movement within the Caribbean Community.

The Claimant, Shanique Myrie who is a Jamaican national, arrived in Barbados on March 14 2011, was denied entry and the following day was deported to Jamaica. She brought an action against the State of Barbados in 2012 and asked the Court to make several Declarations and Orders including an order to pay special and punitive damages. The State of Jamaica joined the Claimant and was granted the status of Intervener by the Court.

The law applicable to this case is the Revised Treaty of Chaguaramas (“the RTC”) and the Decision of the Conference of Heads of Government of the Caribbean Community taken at their Twenty-Eighth Meeting (“the 2007 Conference Decision”).

Article 45 of the RTC states: Member States commit themselves to the goal of free movement of their nationals within the Community.

The 2007 Conference Decision reads:

“THE CONFERENCE

AGREED that all CARICOM nationals should be entitled to an automatic stay of six months upon arrival in order to enhance their sense that they belong to, and can move in the Caribbean Community, subject to the rights of Member States to refuse undesirable persons entry and to prevent persons from becoming a charge on public funds.”

After hearing submissions from Barbados and the Community, the Court held that the use of the word “agreed” and not “decided” is inconsequential and accordingly, the 2007 Conference Decision is effective.

The Court was then met with the question, whether article 240 of the RTC requires the 2007 Conference Decision to be enacted at the domestic level before it becomes binding on that particular Member State. Article 240 (1) and (2) states:- 1. Decisions of competent Organs taken under this Treaty shall be subject to the relevant constitutional procedures of the Member States before creating legally binding rights and obligations for nationals of such States. 2. The Member States undertake to act expeditiously to give effect to decisions of competent Organs and Bodies in their municipal law.

Under the Barbados Immigration Act (Section 3), there is a basic presumption that persons who are not citizens or permanent residents of Barbados have no legal right of entry into the country. However, the Court stated that as a result of the RTC and the 2007 Conference Decision, CARICOM nationals do have a right to enter Barbados and all other Member States. The Court further stated that it is the duty of every Member State to ensure that its domestic law reflects and endorses Community law.

However, it should be noted that there are two exceptions to the right of entry, namely, that the Community national is an undesirable person, and, it is evident that the Community national will become a charge on public funds. The Court noted that since these grounds of refusal of entry are exceptions to a fundamental principle of free movement, the premises on which the refusal is based must be interpreted narrowly and strictly. Further, the burden of proof lies on the Member State that seeks to invoke either ground for denying entry.

As it relates to undesirability, the Court held that no restrictions in the interests of public morals, national security and safety, and national health should be placed on the right of free entry of a CARICOM national unless that person presents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.

In the event that a Member State denies entry to a CARICOM national, that State is required to give to the person reasons for the denial of entry promptly and in writing. The Court expressed the view that it would be reasonable to permit persons who have been refused entry the opportunity to contact an attorney or consular official of their country or a family member.

In light of the CCJ’s judgment in Shanique Myrie v The State of Barbados which highlighted relevant articles in the Revised Treaty of Chaguaramas and the 2007 Conference Decision, Community nationals have a right of entry into the territories of Member States and are entitled to an automatic stay of six months upon arrival. This definite right of entry may only be derogated from where the person is an undesirable or it is evident that the person will become a charge on public funds. The grounds for refusing entry to a CARICOM national must be narrowly and strictly interpreted.

                                                                                                                                         – Kara-Je Kellman