Oft-times, one is never sure if Anil Nandlall purposely misrepresents the law and the constitution merely for propaganda effect or if he truly believes in all he says.
His latest effort, in the letter column in last Saturday’s Stabroek News and Kaieteur News, targets the passage last week of the Value Added Tax (Amendment) Bill 2016. Mr Nandlall claims that section 45 of the bill is unconstitutional. As background, the amended section firstly grants the Commissioner of the Guyana Revenue Authority (GRA) the power to prevent delinquent VAT payers from leaving the country until they have cleared their tax obligations and, secondly, removes the obligation of the commissioner to first obtain an Order of the Court to do so.
Mr Nandlall’s argument exposes several strands of misunderstanding and/or mischief. First, he implies falsely that personal freedoms are untouchable. But no freedom is absolute in any part of the world, and national constitutions include a host of restrictions on rights and freedoms. Our freedom of speech, for instance, does not extend to hate speeches. The very Article 148(1) on the freedom of movement, to which Nandlall anchors his position, lists as many as eight restrictions on travel. Of relevance to the issue at hand, Section 148(3)(h) states that a law that restricts the right of a person to leave Guyana is constitutional if that law is “reasonably required” to “secure the fulfillment of obligations imposed on that person by law”.
In Nandlall’s second misunderstanding/mischief, he wants us to believe such travel restrictions are unique to Guyana or to PNC regimes. Far from true. Countries around the world restrict travel by defining “reasonably required” (or Lord Denning’s “on surest grounds”) to include paying tax debts, child support, and government loans. A case in point: last year, President Obama signed into law the FAST Act, which permits the US government—without a court order—to deny a passport to, or revoke a passport of, any citizen identified by the IRS as seriously delinquent in their tax obligations. Restrictions on travel are therefore not a PNC invention, but a common mechanism worldwide to force delinquent citizens to honour their civic duties.
Thirdly, Nandlall asks plaintively and rhetorically: “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?” Evidently, Nandlall did not read Section 45(2) of the VAT Act, which clearly states that the Commissioner of GRA must serve notice on the person involved.
Which brings us to Nandlall’s complaint that Section 45 of the VAT amendment bill removes the need for a court order. In the administration of the state, court orders are the exception rather than the rule. So, the university can expel a student, and GPL and GWI can cut off essential services to households without court orders, despite the constitutional implications of these moves.
A court order in the VAT case is unnecessary for several reasons: the restriction on travel is limited; there is no charge, arrest, fines or forfeiture; and removing any burden is procedurally simple (just make full payment or a satisfactory arrangement to pay).
Editor, the non-payment of VAT is at crisis level. As Finance Minister Jordan explained during last week’s parliamentary debate on the bill, this non-payment is an outrageous form of tax evasion, for it involves other people’s (our) money that businesses collect on behalf of the government. When a business keeps this money for its own use, then the government’s frustration is understandable.
Having taken care of Mr Nandlall’s arguments, I wish to propose a further amendment to the act—and to such laws in general where the government restricts rights and freedoms (such as property and privacy rights) in its efforts to target proceeds of crime and tax evasion. There is a point where the penalty (as a restriction or invasion) becomes excessive in relation to the offence. A disproportionality emerges between crime and punishment. Even if I owe a mere G$1,000 in tax, the law as written allows the government to stop me leaving the country. One may argue that the government will not target such petty amounts, but people in government are given to pettiness due to overzealousness or vindictiveness. The cure lies in the approach used in the START Act in the US where the delinquency must be serious, defined as above US$50,000. As a simple safeguard, therefore, both the income tax and VAT acts should define a threshold before action is warranted.