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'Minista sey' can't impose tax

Published:Tuesday | June 5, 2012 | 12:00 AM

Gordon Robinson, Contributor

The 1776 American Revolution's rallying cry was 'No taxation without representation'.

This encapsulated the complaint that taxes, imposed by the United Kingdom Parliament on its 13 American colonies without their consent, "violated the traditional rights of Englishmen dating back centuries".

It all came to a head with The Stamp Act of 1765 (required that all legal documents, newspapers, almanacs, pamphlets and playing cards in the American colonies be taxed and an adhesive stamp attached to prove payment), which the colonists rejected. It had to be repealed. Then the now notorious tax on tea imports was violently rejected, resulting in a full-blown revolution.

Today, as a direct consequence of this American experience, significant new state taxation is often subject to referenda before imposition. This is based on the United States Constitution's 10th Amendment which provides "... powers not delegated to the United States by this Constitution, nor prohibited to the states, are reserved to the states, respectively, or to the people". Any federal taxes proposed by the US government must be passed by the people's representatives in Congress.

In Jamaica, we've been 'independent' for 50 years, but still meekly suffer taxation without representation in silence. Taxes are routinely imposed by ambush and we happily play the annual guessing game, congratulating ourselves when we get it right. "I knew he'd tax cigarettes" is the standard 'analysis' by persons more concerned with self-aggrandisement than defending Jamaica. But, the truth is: 'he' can't tax anything. 'We' must be involved in the process.

Unlawful, oppressive taxation

The very worst example of unlawful, unjust and oppressive taxation in this country is the oft-utilised PROVISIONAL COLLECTION OF TAX ACT (PCTA), Section 3 of which purports to permit the minister of finance (MOF) to vary, renew or impose any tax by gazetted ministerial order which "shall ... have effect as if contained in an act of Parliament". This routine refuge of desperate MOFs seeking to avoid the spotlight ought to be repugnant to every democratic sensibility. Instead, we swallow it as gospel.

Maybe it's time to remind ourselves about the constitutional limits of both Government's and Parliament's power. In the United Kingdom, because there's no written constitution, every act of Parliament has constitutional effect and can't be questioned. However, Jamaica's written Constitution is supreme.

Section 2 of The Constitution provides: "..... If any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void." So Parliament's passage of a law doesn't make it valid. Anything in any law that's inconsistent with the Constitution will be struck down as happened to sections of the Gun Court and Customs Acts.

Section 69 provides for the appointment of a Cabinet and Subsection (2) provides: "The Cabinet shall be the principal instrument of policy and shall be charged with the general direction and control of the Government of Jamaica and shall be collectively responsible therefore to Parliament."

Let's break this down. Constitutionally, Cabinet:

creates policy;

directs and controls GOJ;

is answerable to Parliament for the execution of Cabinet's duties.

Usurping Parliament's role

So, if Cabinet wants to impose new taxes, it can only develop the policy and then ask Parliament to pass the requisite law. It's incongruous for Cabinet to say it wants new taxes; followed by the MOF bypassing Parliament by way of ministerial order and, voila, new taxes are imposed. That's a usurpation of Parliament's role, NOT proper execution of Cabinet's duties. If Parliament tried to empower a minister in this way, (e.g. PCTA, Section 3), that would be inconsistent with Section 69 of the Constitution (limits Cabinet's power to 'policy' and 'control' of GOJ) and, accordingly, void. In my opinion, Parliament can't abdicate its duty to pass laws by delegating that duty to the very Cabinet for whom it has constitutional oversight responsibility.

Accordingly, any new tax imposed by this unconstitutional method is illegal, unenforceable and uncollectible. Simple rate alterations in or renewals of already imposed taxes wouldn't offend this principle. If I'm right, this new tax on telephone calls originating overseas, apart from endangering a future economy likely heavily dependent on ICT, is unconstitutionally imposed. Telecoms companies, unable to pass the tax on to international carriers or callers because our laws don't have extraterritorial effect, will eventually pass it on to us. Or will they surprise me and act in defence of oppressed taxpayers by resisting the unconstitutional tax? Hmmmm.

Generally, it's time Jamaicans become more aware and protective of their constitutional rights. It's a new age. 'Minista sey' isn't dogma anymore.

Peace and love.

Gordon Robinson is an attorney-at-law. Email feedback to columns@gleanerjm.