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“The Constitution does […] permit laws to infringe constitutionally protected rights. Such laws must be ‘reasonably justifiable’ and passed with a special majority…
“The Property Tax Act, however, was passed with a simple majority. It cannot benefit from this Constitutional exception.”
The following Letter to the Editor regarding the legality of the PNM Government’s Property Tax was submitted by Dr Emir Crowne, Senior Lecturer (Mona) and Barrister:
(Courtesy Allan V Crane/Wired868)
The Property Tax Act is unconstitutional. There is simply no way to save it in its current form.
The crux of the Act’s unconstitutionality can be found in Part V, entitled “Recovery Of Taxes.” Those provisions—sections 31 to 47—all bestow incredible powers on the State. For instance, the provisions deem unpaid taxes to be charges against the land in question, and authorise seizures of personal property.
Those provisions directly, and quite plainly, infringe sub-section 4 (a) of the Constitution. Namely, “the right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law.”
The Constitution does, however, permit laws to infringe constitutionally protected rights. Such laws must be “reasonably justifiable” and passed with a special majority. Sub-sections 13 (1) and 13 (2) state that:
“An Act to which this section applies may expressly declare that it shall have effect even though inconsistent with sections 4 and 5 and, if any such Act does so declare, it shall have effect accordingly unless the Act is shown not to be reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual.
“An Act to which this section applies is one the Bill for which has been passed by both Houses of Parliament and at the final vote thereon in each House has been supported by the votes of not less than three-fifths of all the members of that House.”
(See also, para. 2 of the Privy Council decision in David Gopaul on behalf of H V Holdings Limited v Vitra Imam Baksh on behalf of the Incorporated Trustees of the Presbyterian Church of Trinidad and Tobago, [2012] UKPC 1).
The Property Tax Act, however, was passed with a simple majority. It cannot benefit from this Constitutional exception.
Indeed, although our Constitution is modelled after the Canadian Charter of Rights and Freedoms, the constitutional protection for property rights is something unique to Trinidad and Tobago. It is absent from the Canadian Charter of Rights of Freedoms for political reasons and concerns over the division of powers—between the Federal Government and the Provinces.
If the constitutionality of the Property Tax Act were put before the local Courts, it would be an ideal moment for our nation to chart its own constitutional jurisprudence and protect its citizens from the excessive reaches of the State.
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Dr Emir Crowne is a barrister and attorney-at-law attached to New City Chambers in Port-of-Spain.
http://www.guardian.co.tt/news/2017-05-21/new-queries-raised-tax-appeal-case
http://www.guardian.co.tt/news/2017-05-20/confusion-over-property-tax-appeal
http://www.trinidadexpress.com/20170520/news/kamla-anand-cry-collusion-over-appeal
UNC WE SEE, We tired of this nonsense. Pay the property tax. Remember citizens of T&T these famous words by former Pm KPB if we lose the election. “We will make this country ungovernable”. They are true to their words with their battery of unethical and corrupt lawyers. U ent C living in the Courts. Have you all noticed former AG Ramlogan has all his cases in South and the judges. What independence in the Judiciary? The appeal is in Town with three judges? .let the games continue
http://www.guardian.co.tt/news/2017-05-19/state-appeal-property-tax-ruling-monday
I hope the State isn’t throwing good money after bad here.
Couldn’t they wait for the May 31st hearing?
Why? The one common factor in ALL these type of issues….the lawyers make money. Lots and lots of it
True
“The judge rejected the argument of the State’s lawyer that citizens were not being compelled to file the forms and that it was voluntary.”
Since when was it voluntary?
Tell Imbert that.
I want to know who is the state lawyer who submitted that argument. He’s a downright liar and should have been charged for lying in a court of law
The Express reports that the State was represented by Deborah Peake SC
ok thanks.
It’s just a stay. Petulant children business.
Lol
http://www.trinidadexpress.com/20170519/news/property-tax-axed
Very misleading headline… “axed” implies that it has been voided or ruled illegal/unconstitutional. That hasn’t yet happened. The Justice is also correct in staying things until the underlying legal matter is resolved.
Meanwhile, smh at The Express… bad headline not being enough, they throw in a “the State learnt” and calls Seepersad a “Judge” and a “Justice” in the same article, clearly not appreciating the difference.
Steups.
http://www.guardian.co.tt/news/2017-05-19/property-tax-hold
gosh a little something but not so much pressure.
Thing about this is… taxing property isn’t unconstitutional… and since it takes five years based on what the act says to confiscate the property of someone in default, I don’t think a constitutional argument can be made till someone doesn’t pay taxes for 5 years, has their property confiscated and then decides to sue the state… so don’t get chain up… the tax is legal… seizing your property may not be constitutional but that doesn’t mean the government cannot levy other penalties as a result of non payment
So true
First property tax, next increase in water, then increase in electricity… Food and gas will increase again. And where is all this money going towards… If the gov’t run us dry then there’ll be no one to pay their taxes. Venezuela is in turmoil. I pray we don’t follow.
“Rob the poor to feed the rich”
Rossana Glasgow I disagree with you on the Judiciary. ..the examples are too plentiful to cite, whatever the current imbroglio…just to cite one recent example…many ppl have been commenting on the Privy Council decision in support of Reggie Dumas’ case to challenge certain decisions of President Carmona. ..some have even gone so far as to use this to say ‘is a good thing we not part of the CCJ’…to which I reply that the Privy Council was approving the prior decision of our Appeal Court…
Agreed.
Thus country is so divisive because of race , and yet people turn to the courts to settle every issue. What is comical and so funny is because the judiciary lacks independence, those sitting in judgment are party hacks. In many instances the outcome is a foregone conclusion. Maybe that’s the reason why people still hold on to the Privy Council, to get unbiased judgment? Just thinking aloud.
just cut funds to the judiciary to make up the short fall
I am accustomed paying my land and building TAX the law of the land pay alyo TAX
B
Pay allyuh tax
Population: “he thief, she thief”…….Politicians: our policies (police) keep us out of jail, our lawyers (liars) defend us, our judges judge YOU……That is the flow in Trinidad and Tobago.
Check every politician in the past 0 – 40 years finance and assets and forensic audit them and the country will have enough billions to confiscate and truly build a nation and not just some clans. So much Phd, Mba and Bsc in academics and they can’t for over 30 years get it right…..studying to undevelop and rob our country at every chance they get.
Well said.
all this posturing going on, the question i have is where are we to find the money to finance the deficit
So you and the PNM s the only people who don’t know that the UNC raid the country and the treasury to how many billions over the last seven years? And the PNM did it for how many years prior, why they don’t go seize profits, and prosecute.? Why they don’t start the tax at the banks reporting 841 million profits for a year and six months? The conglomerates,? The big holders, financiers and the rich?
Why why
And you all good with that?
It have no end to that slave mentality to accept that abuse
Me and the PNM… Hmmm..asking a question seems to be a sure sign of political sychophancy… May I assure you that the question as are most was intended to garner suggestions . blessed
Well, I just wrote an answer.
Share it through your network. Let people wake the hell up
Why and how that is not obvious to people is bizarre to me but our poverty is not of money but the mind.
1
We just go back to land and building taxes.We may not raise the the funds anticipated with prooerty taxes.
Again
“the right not to be deprived thereof (except by due process of law).”
That line in the constitution allows for laws to be drafted to remove such rights e.g. Property
Steups
Lol. I laughed when I saw && in this thing. I suspect this challenge is nonsense but I’m no legal scholar. Let it come.
the irony is && challenging it when he sat there for 4 yrs and didnt either rectify the so called issue or scap the bill cause it was bad. the petty nasty politics continues to keep us exactly where we are…close to the gutter
Not disputing the point you are making, but should we be concerned that the then opposition, now gov’t sat by and allowed a bill to be passed that may have loopholes in it?
Sooooooo…..would it have be legal if Mr Howai had gone ahead and introduced it??????????……YES ? or NO????????.
We can’t say. Cause he did not.
Robbing us of the chance to view his approach and procedure.
A public announcement without your name and address, sent to the property is not legal.
FYI
Not legal based on what law? Just a question
could someone attach the clip with Larry Howai in Parliament seated next to Kamla stating that the property tax was to be implemented in 2014 to run till 2018, much thanks.
I am looking on at all who are questioning the legality or illegality of the property tax. It is on the law books since 2010, a political party won the election of that year on axe the tax with 29 seats yet did nothing except give a tax amnesty for five years hence the tax becoming payable in 2016 and 2017. My question is was this tax illegal accordingly some of the legal commentators for the past seven years. When Howai in his 2013 budget speech announce that he was bringing back the property tax on a phased basis how come his actions or motives were never questioned? All this gambage robber talk and badJohnism, ripping up of the form, hollow apology just did not cut it, not everyone was sucked in with the tomfoolery
I HEAR YOU….
As far as I am concerned the Tax re introduction was read into the Budget…That makes it Legal….just as when a gas hike is read into the Budget “”with immediate effect””…. .
Reading something into the budget does NOT make it legal. Simply because the government doesn’t make the law.
This isn’t Iraq under Saddam Hussain. The government decides on a course of action and, if challenged, the court will determine if the Govt interpreted the constitution correctly or not.
okkkkkkkk…..I hear you….but what happens when a gas price hike is read into the Budget and overnight the pumps are adjusted?
Exactly is the case at Valencia, Lasana Liburd. But alas, we have no social justice lawyers
Well the gas subsidy is not written into the constitution. In any case, the government can act and people can challenge their action in court.
Because the govt acts doesn’t necessarily mean they are right or they have the law by their side.
Take squatting for instance. There probably would be cases where squatters could challenge Govt and win for destruction of property according to other factors related to the property, how long they were there and if they were recognised by the Govt while there.
Cherrise Fonrose They don’t want to see that all they listening to is kamla and she nonsense but all ah them will feel, let them go ahead and listen to that fool ah sure she and she cohorts send in their form already
I am going out on a limb by commenting without reading the legislation myself. But the author does not raise the question of the legitimacy of taxation. The issue is the penalty for failure to pay the tax. A charge against the land itself suggests that should you desire to sell your land or convey it by any other means, it would be saddled with the burden of unpaid taxes. This makes it unattractive to a potential purchaser thus interferes with your right to do with your property as you wish which infringes on a protected right. Similarly the penalty of seizure of what is lawfully yours also infringes on the fundamental right to enjoy your property. Thus if the govt wants to pass a law with such provisions, the special majority is one of the needed prerequisites.
I think the real question is whether the Property Tax constitutes an infringement on a Constitutional right. We know that the government has the right to tax, so that’s not at issue. Provided that the Act has Due Process protections built in then there is no issue as to Constitutionality.
The Letter seems to take the position that any law that infringes on a protected right, Due Process protections or not, they must be passed by a special majority. If that is indeed the case, and I’m not convinced that it is, only then could I see the argument that a special majority is necessary.
I think the real question is whether the Property Tax constitutes an infringement on a Constitutional right. We know that the government has the right to tax, so that’s not at issue. I haven’t yet read the letter to the editor, but I’d be curious to see the argument as to why a special majority is necessary.
I like the debate however how many of us are not going to pay it? Then get up in the morning and complain about what we don’t have. So Mr. Imbert will say raise personal taxes to 45% and get back what he wants from property tax. That’s the alternative.
It’s like building a hospital in which we don’t have the staff to run it. Not only medical staff but support staff.
Like the Couva Children’s Hospital? Lol
Why build the the damm thing and we struggling to get doctors and nurses as. We importing both for the last five years. Or how many specialists we have for the hospital. That’s like pediatrician bone specialists, cardiologist, audiologist. Then what about hygienist and other specialists and you can’t just have one you need at least 3 of each. Then what about maids laundry staff maintenance staff specialized in ensure the air filtration unit is working so crops contamination doesn’t occur. Plumbers, electrical technician certified. Then what’s the day to day operational cost who pays. But we don’t want to pay property taxes.
Marcus Alexander Clarke, I believe when that argument was raised, the response was that in any event, it is difficult to renovate in a working hospital, which I agree with. But it can and has been done. The issue might lie with how extensive the renovations are as to how feasible it is.
There are two separate legal challenges against the property tax. I haven’t seen the details of those challenges though.
Time will tell
I guess that position is fundamentally acceptable.
Maybe. I will wait before coming to that conclusion.
Well, I guess we all could agree to one thing we really need some constitutional ajustments.
At any rate let the legal challenges come. I doubt they will succeed. And if they do we have a better constitution for it.
That’s the point and focus. Citizens, somehow, in this month long debacle, have failed to observe the opportunity for constitutional reform, and to seize citizen power like never before
Exactly, an important part of development!!
Which one of us as ordinary citizens could derail a policy by a govt in power.
Write me inbox !
Given recent ruling in Dumas’ favour, anything is possible!
Dumas is not policy, it’s more procedure.
Perhaps they have contradictory advice. Difficult to believe that they would go ahead with a bill that could not stand legal scrutiny without legal cover.
Certainly not Kyon!
Property tax is not new
The officials in the valuation department.
Link
What is important here is to appreciate that our nation is still relatively young as compared to more mature and developed nations. These issues are important to debate and ventilate as the process is a part of development. just taking a side or a position doesn’t advance development. It’s time for real discussion and debate.
By which authorities?
This cannot be close to rocket science, the govt has already been given the advice by the authorities and failed to comply/adhere.
Are other taxes passed with a special majority? Because this argument would negate all of them.
The Constitution also gives the parliament the power of taxation does it not? Property tax would clearly fall under that authority.
Kyon Esdelle, guess they can take yours, as you are prepared to be a victim of circumstances, but who is debating, what you are debating. Only you and the pseudo-economist /betrayer,
Why u call the man a pseudoeconomist betrayer ?
Terrence Farrell coined that term in respect to Imbert and Dr Selwyn Cudjoe a PNM activist referred to Dr Rowley as the betrayer. Apparently you are not abreast with the recent political discourse.
Not at all
Ok, I understand.
“the right not to be deprived thereof (except by due process of law).”
That addition allows for laws to be drafted to remove such rights
The constitution already gives the govt the right to take away property
That pales to the central point he’s making
And his central point is that what
No special majority?
I’m no lawyer but his analysis in respect to the property tax is the same advice that was given to the authorities, but the pseudo-economist and the betrayer refused to accept the recommendations and decided to take a particular course of action.