Chue et Al v The Attorney General of Guyana
| Jurisdiction | Guyana |
| Judge | Chang J.A. |
| Judgment Date | 15 December 2006 |
| Neutral Citation | GY 2006 CA 11 |
| Docket Number | Civil Appeal No. 10 of 2000 |
| Court | Court of Appeal (Guyana) |
| Date | 15 December 2006 |
Court of Appeal
Singh, J.A.; Kissoon, J.A; Chang, J.A.
Civil Appeal No. 10 of 2000
Mr. Rex H. Mc Kay S.C. with Mr. F.L. Peters and Ms. A. Wong for the appellants
Mr. Ralph Ramkarran S.C. in association with Miss Kamla Roopnauth and Miss J. Jagnanan for the respondent
Constitutional law - Constitutionality of statutory provision — Section 6(2) of the Revenue Authority Act — Statutory provision purported to empower the Government to retain or not to retain in the public service those employees in the Customs and Excise and the Inland Revenue Departments not engaged by the Revenue Authority under Section 6(1) of the Revenue Authority Act. — Section 6(2) deemed unconstitutional.
Constitutional law - Fundamental rights and freedoms — Section 142 of the Constitution — Property rights — Deprivation of right to property by failing to retain public service employees — Loss of employment did not give rise to constitutional rights — Appeal dismissed.
Decision Chang J.A. (delivered the judgment of the Court):
On the 3 rd October, 1996, the Revenue Authority Act 1996 was passed into law upon receipt of the Presidential assent. This Act, however, did not come into operation until the 27 th January, 2000 which was the date appointed for its coming into operation by ministerial order made under Section 1.
The long title of the Act reads:
“An Act to establish and define the functions of the Revenue Authority; to define the functions of the Governing Board of the Authority; to transfer from the Government to the Authority the functions and powers of the Inland Revenue Department and the Customs Department; to transfer from the Government to the Authority the assets used by the said Departments and the liabilities to which they were subject and provide for matters connected therewith or incidental thereto” (underscoring mine).
Section 9 established the Revenue Authority as a corporate body while Section 10 prescribed its functions. Section 10 (1) states:
“The functions of the Authority are:
(a) to assess, charge, levy and collect all revenue due to the Government under such laws as the Minister may by order specify.”
(b)
It does appear that Parliament intended to create a co orate body and to transfer to that body the functions of assessing, charging, levying and collecting all revenue due to the government under laws to be specified by the Minister — particularly where the laws relate to revenue functions performed by the Inland Revenue Department and the Customs Department.
The Inland Revenue Department and the Customs Department were hitherto departments of Government and performed functions under the authority of the executive or central government. It cannot be doubted that the functions of assessing, charging, levying and collecting revenue were core or essential functions of government and it was Parliament's intention to transfer those core functions to the Revenue Authority as a corporate body.
The appellant Clarence Chue was the Comptroller of Customs and Excise and the appellant Patrick Hyman was a Director of Customs and Excise in 1998. On the 4 th July 1998, before the Act came into operation, they instituted proceedings in the High Court seeking a number of declarations. The High Court granted some of these declarations but also refused to grant quite a few. The declarations sought by the appellants but refused by the High Court were:
“4. A declaration that Section 6(1) of the Revenue Authority Act 1996, No. 13 of 1996 (the Act) in so far as it purports to authorise the Government to transfer public officers is in contravention of Articles 200–206 of the Constitution is null, void and of no legal effect.
5. a declaration that the notices served (or intended to be served) on the applicants or any of them by the Ministry of Finance purporting to act under Section 6(1) and (2) of the Act are (would be) null, void and of no legal effect.
7. a declaration that the use of the words “may be retained” in Section 6(2) of the said Act is intended to alter the applicants' status as public officers and is inconsistent with their terms of employment as customs officers.
9. a declaration that acts done under Section 6 of the said Act are violative of the principles of natural justice.
10. a declaration that the effect of the Act is an unlawful taking away of the applicant's property rights inconsistent with and in contravention of Article 142 of the Constitution.
11. a declaration that the effect of the Act subjects and would subject the applicants to “degrading” treatment in contravention of Article 141 of the Constitution.”
The appellants had also sought damages and/or aggravated damages and/or aggravated compensatory damages which the High Court refused to award.
The appellants appealed to this Court against the refusals of the trial judge.
In this Court, Mr. Mc Kay, Senior Counsel for the appellants, submitted that since revenue collection is a core function of central government, it was not open to Parliament to transfer such a function to a corporate body such as the Revenue Authority without constitutional amendment. Counsel drew a distinction between core and non-core functions of the executive government and argued that while it is open to Parliament to transfer functions which were not intrinsically governmental such as the carriage of persons or goods ( Tamlin v. Hannford (1950) 1 KB 18) or the postal service ( Perch v. Attorney General (2003) 62 WIR 461) or other commercial or semi-commercial functions from the purview of the public service to a public corporation, it is not open to Parliament to so transfer core or essential functions of executive government such as revenue assessment and collection to a corporate body without constitutional amendment.
That revenue assessment and collection is an intrinsically governmental function cannot be denied. In Donald Jason Ranaweera v. Ramchandram and Others (1970) WLR 500, Lord Diplock said at 509:
“The assessment and collection of taxes to defray the expenses of the central government of the country is a classic constitutional function of central government itself.”
Senior Counsel for the applicants also referred this Court to the dicta of Lord Bingham of the Privy Council in Perch v. Attorney General (supra) at 467:
“The 1999 Act exemplifies a widespread international trend towards the divestment by Governments of functions previously carried out by them directly or indirectly but forming no part of the core functions of Government (such as defence, the maintenance of law and order and the administration of justice) and lending themselves to commercial non-governmental operation in the interests of efficiency and economy. If it were sought to devolve the, Police Service or the Prison Service to a corporation analogous to Trinidad and Tobago post there would be strong arguments (on which it is unnecessary to pronounce) for holding that such a change contradicted express terms of the Constitution and assumptions on which it is based. But no such problem arises here. There is nothing intrinsically governmental in collecting and delivering letters and parcels, any more than there is in operating telephones, or trains, or lotteries, or libraries or hospitals,” (underscoring mine).
This Court has no doubt that if Parliament had purported to transfer the functions of revenue assessment, and collection to a public corporation under Article 65 of the Constitution, Parliament would have acted ultra vires Article 65.
Article 65 (1) provides:
“Subject to the provisions of this Constitution, Parliament may make laws for the peace order and good governance of Guyana.” (underscoring mine)
while Article 99 (1) provides:
“The executive authority of Guyana shall be vested in the President and, subject to the provisions of this Constitution, may be exercised by him either directly or through officers subordinate to him.” (underscoring mine).
Since the power of Parliament to legislate for the peace, order and good governance of Guyana under Article 65(1) is expressed to be subject to the provisions of the Constitution, Parliament could not have legislated under Article 65(1) for the transfer of the intrinsically governmental function of revenue assessment and collection to a public corporation in derogation of the executive authority vested in the President under Article 99(1).
But such a parliamentary disability to legislate under Article 65(1) for the transfer of a core governmental function from the executive authority of central government (vested in the President under Article 99(1)) does not necessarily mean that Parliament is disabled from so doing under another provision of the Constitution. Article 99(2) provides:
“Nothing in this article shall prevent Parliament from conferring functions on persons or authorities other than the President.”
It does appear to this Court that Article 99(2) enables Parliament to confer any executive function on any person or authority. Article 99(2) draws no distinction between core and non-core governmental functions and there can be no warrant for the court to seek to restrict Parliament in the exercise of legislative power conferred upon it under Article 99(2) by drawing such a distinction unless such a distinction is warranted by the Constitution itself for the purpose of imposing some restriction on Parliament.
Section 1 of the Constitution declares that, “Guyana is an indivisible, secular and democratic State…” (underscoring mine) and one of the attributes of a democratic state is the existence of the doctrine of separation of powers among the executive, the legislature and the judiciary. No doubt the doctrine of separation of powers underlies the Constitution in the establishment of Guyana as a...
To continue reading
Request your trial