Section 45 of the VAT Act is unconstitutional

Dear Editor, The freedom to enter and leave Guyana is guaranteed to every person as a fundamental right and freedom by the supreme law of the land, the Constitution. It is captured in Article 148(1) of the Constitution:

148(1) “No person shall be deprived of his or her freedom of movement, that is to say, the right to move freely throughout Guyana, the right to reside in any part of Guyana, the right to enter Guyana, the right to leave Guyana and immunity from expulsion from Guyana.”

In Ghani v Jones, (1970) 1 QDB 613 @ 709, Lord Denning said “a man’s liberty of movement is regarded so highly by the Law of England, that it is not to be hindered or prevented, except, on the surest grounds”. It must be emphasized that England has no constitution or a Bill of Rights. Therefore, those sentiments of Lord Denning must apply to countries like Guyana with a written Constitution containing a Bill of Rights, with even greater force. Indeed, in terms of the relationship between any other law and the Constitution, Article 8 of the Constitution provides:

Article (8) “This Constitution is the supreme law of Guyana and, and if any other law is inconsistent with it that other law shall, to the extent of the inconsistency, be void.”

Article (8) therefore, imposes an inescapable obligation on those seeking to promulgate laws to ensure that those laws do not conflict with the Constitution. In short, all Bills must conform to the litmus test of constitutionality. If not, they will suffer the fate of being rendered unconstitutional and void. It is trite law that the judiciary is imbued with the constitutional mandate and authority to strike down such laws when called upon to do so.

Section 45 of the Value added Tax Act, Chapter 81:05 provides:

S 45 (1) “Where the Commissioner has reasonable grounds to believe that a person may leave Guyana without paying all tax due under this Act, the Commissioner may issue a Certificate to the Chief Immigration Officer containing particulars of the tax due and request that the Chief Immigration Officer take the necessary steps to prevent the person from leaving Guyana until the person makes: (a) A payment in full; or (b) An arrangement satisfactory to the Commissioner for the payment of the tax:

Provided the Commissioner cannot proceed under this subsection unless he has obtained an Order of the Court in respect of the tax due.”

The Minister of Finance has already tabled and read for the first time Bill No. 27 of 2016, the Value Added Tax (Amendment) Bill 2016. By the time this letter is published, it is more likely than not, this Bill would have been passed by the National Assembly. Among the amendments which it seeks to effect is the following apparent innocuous one-liner to Section 45 (1): “by deleting the proviso and substituting for the colon a full stop”. In that oneliner containing a dozen words, the Commissioner General will be empowered to prevent a person from leaving Guyana, without notifying him, without affording him a hearing and obviously, without obtaining a court order, if that person owes VAT. It is my respectful view that this provision in the Bill is inconsistent with a person’s right to leave Guyana as is guaranteed by Article 148(1) of the Constitution and accordingly, is unconstitutional.

Why would a government want to remove a resort to the courts for an order to stop a person from leaving the country? Why would a government want to stop a person from travelling without notifying him? Why would a government want to take away a constitutional right of a person to leave Guyana, without offering him a hearing in accordance with the rules of natural justice and due process? Why would a government want to reside such vast powers in any officer of the state without any checks and balances when such powers can be so easily abused, misused and exercised arbitrarily and with caprice? I doubt that anyone in the government can, or will proffer any sensible answers to these questions. That is why with each passing day, I am becoming more and more convinced, that we are sliding into authoritarianism with alarming rapidity.

Those of us old enough know that we have traversed this path before. That is why the signs are so easy to recognize. What is regrettable, however, is that some of those who were the victims of this authoritarianism have now metamorphosed into the new authoritarians. In 1979, Dr Clive Thomas’s passport was taken from him for no justifiable reason by police officers, thereby preventing him from leaving the country. He was forced to approach the High Court, in High Court Proceedings No. 2557 of 1979. His lawyers would have advanced the same arguments which I am articulating here. They were successful. His passport was

returned to him and he was permitted to travel. In 1980, Eusi Kwayana, was “blacklisted” from leaving the country. He filed a legal challenge in the High Court, No. 265 of 1980. Again, he was successful. Similarly, in 1980, Dr Rupert Roopnaraine was blocked from leaving the country. The reason given was, that although certain criminal charges filed against him were dismissed, the state had appealed that dismissal and the pending appeal barred him from leaving the jurisdiction. High Court Judge, Mr Justice Prem Persaud, swiftly rejected those arguments and affirmed Dr Roopnaraine’s constitutional right to leave the country (See Roopnaraine v Barker 30 WIR 181).

From the above examples, it is clear that preventing citizens from leaving the country is a familiar weapon used by this administration in a previous incarnation. It is now back in vogue. Anyone who has an acquaintance with how the VAT system is administered, would know that at any given time, persons authorized to collect VAT on behalf of the GRA for onward transmission to that agency, will owe VAT to the GRA. This is so because the VAT collected is not transmitted instantly to the GRA. It is done at periodic intervals. When this Bill becomes law, the Commissioner General can prevent any of these persons from leaving the country. Tens of thousands of persons’ right to travel overseas will, therefore, be exposed to the whims and fancies of the Commissioner General. I must emphasize that the exercise of this power does not have to await the hearing and determination of any objections which may be filed under the law; nor does it have to await a final assessment of taxes owed.

No civilized legal system will countenance such concentration of power in the hands of a single individual exercisable without due process. In Trinidad and Tobago, such a power was declared unconstitutional. In 1986, the Court of Appeal of Trinidad ruled that a person is not liable to pay income tax until he has been assessed, and if he is prevented from leaving the country before assessment, he is deprived of his freedom of movement. (See AG of T&T v Hosein 42 WIR 328). Another legal challenge looms.

Yours faithfully, Mohabir Anil Nandlall, MP