-State ordered to pay $2.5M compensation for discrimination
THE Demerara High Court has found that a law which effectively granted tax exemptions to the Chancellor and Chief Justice of the Supreme Court of Judicature, but not to other judges of the court, is discriminatory and ruled that it is unconstitutional and of no effect.
The action was brought by retired High Court Judge William Ramlal, and dealt with the issue of whether S.13 (a) of the Income Tax Act, which grants the tax exemptions to the Chancellor and Chief Justice, violated Article 149 D of the Constitution.
That Article states that the state shall not deny to any person equality before the law or equal protection and benefit of the law and shall, for the purpose of promoting equality, which includes full and equal enjoyment of all rights guaranteed by law, take measures designed to protect disadvantaged persons.
Justice (retired) Ramlal was appointed a Puisne Judge in the High Court in 2000. In his action filed on January 23, 2015, he asked the court for a refund of the taxes which were deducted from his salary from 2004 to the end of 2014.
His petition to the court argued that in 2003, judges of the Supreme Court met with the then President of Guyana regarding the provision of better terms and conditions of service for all judges and representation was made for income-tax exemptions for members of the bench.
In 2004, the Income Tax Act was amended by Act No. 7 of 2004 which effectively exempted only the Chancellor and Chief Justice from paying income tax in accordance with Section 13 (a) of the Income Tax Act.
“At the date of my appointment as a Judge of the Supreme Court of Judicature, all judges, including the Chancellor and Chief Justice paid income tax on their judicial incomes and the relief of two judges from liability to the exclusion of others has been severely prejudicial to me,” Justice Ramlal had argued in his court action.
Justice (ret’d) Ramlal claimed that between 2004 and 2014, he paid in excess of $34,000,000 in taxes, and argued that the differential treatment generated “a feeling of inferiority and hardens the struggle against demotivation in relation to the heavy judicial risks.”
He also contended that the differential treatment had “a psychological effect” on him and caused him “to feel unworthy and makes… [him]…an innocent victim of the discriminatory exercise of state power in the legislature.”
High Court Judge Justice Fidela Corbin-Lincoln reasoned that Article 126 of the Constitution states that “the word “Judge” includes the Chancellor, the Chief Justice, a Justice of Appeal, a Puisne Judge and a part-time Judge” and while the Chancellor and the Chief Justice are appointed by a different process and have different responsibilities, they fall within the ambit of the word “Judge.”
She explained that the Chancellor and Chief Justice must meet the same pre-qualification requirements and have the same retirement age as other Judges of the Court of Appeal, subscribe to the same oath, have the same judicial responsibilities and are bound by the same judicial code of conduct.
Further, Justice Corbin-Lincoln highlighted that a ruling or decision of the Chancellor carries no more judicial weight than those of other Judges of the Court of Appeal and, equally, a ruling or decision of the Chief Justice carries no more judicial weight than that of other Judges of the High Court.
“It cannot be disputed that Section 13 (a) of the Act affords different tax treatment to the Chancellor and Chief Justice from other Judges of the Supreme Court, in that it confers tax exemptions to them not afforded to other Judges,” the High Court judge ruled, explaining that the difference in treatment must be justified.
The Attorney General, who is listed as the respondent in the matter, sought to argue that the differential treatment is justified, because the Chancellor and Chief Justice are appointed and removed from office in ways different from the Applicant as a Pusine Judge; they have additional administrative duties and enjoy precedence over other judges.
However, Justice Corbin-Lincoln reasoned that “since the remuneration of the Chancellor and Chief Justice already takes into account their hierarchy and additional administrative responsibilities, it has not been established that the differential tax treatment has a legitimate aim.”
In this regard, she held that Section 13 (a) contravenes Article 149D of the Constitution in so far as it confers tax exemptions on the Chancellor and Chief Justice only and excludes other Judges of the Supreme Court.
“It is apposite to note that in other CARICOM countries, all judges are treated equally in relation to taxes. In Trinidad and Tobago and the Eastern Caribbean, all judges are exempted from taxes. There is no subset of judges that enjoys the exemption and others excluded. In Jamaica, all judges are subject to taxes,” the judge said in her ruling.
Taking all of the circumstances into consideration, Justice Corbin-Lincoln ruled that the State should compensate Justice (ret’d) Ramlal and that the appropriate award of compensation for the breach of Article 149D (1) is $2,500,000.