Terrisa Dhoray v Attorney General of Trinidad and Tobago and another (Trinidad and Tobago)

The Constitution does not prohibit Parliament from transferring a governmental function to a separate statutory body merely because the function is core, intrinsic, non-commercial or potentially coercive. The proper question is whether the transfer undermines the purpose of constitutional protections for public officers: independence from political pressure and protection of the public. Transfer is compatible where the recipient is genuinely independent, is not a sham, and provides adequate and effective safeguards against executive interference. Tax assessment and collection therefore need not be performed only by persons directly employed in government service. The scope of the Act’s definition of enforcement was left for determination in an appropriate domestic case.

The appellant, a public officer in the Customs and Excise Division, challenged the Trinidad and Tobago Revenue Authority Act 2021. The Act transferred revenue functions, including tax assessment and collection, to a statutory Authority whose employees would generally not be public officers protected by chapter 9 of the Constitution. The appellant argued that these were intrinsically governmental functions which could not be transferred without constitutional amendment.

James J dismissed the claim on 17 November 2023. The Court of Appeal of the Republic of Trinidad and Tobago upheld that decision on 28 May 2024. The appeal concerned whether the Act breached an express or implied constitutional restriction, including the protections associated with the Public Service Commission.

Appeal dismissed. The Board held that the appellant had not displaced the strong presumption that legislation enacted by a democratic Parliament is constitutional. The burden of establishing invalidity was heavy.

1. The Constitution contains no express prohibition on transferring governmental functions to a statutory body because they are core or intrinsic functions. The reasoning in para 13 of Perch v Attorney General [2003] UKPC 17 was not essential to that decision and did not establish that core functions could never be devolved. The Court of Appeal’s proposed distinction based on coercive powers was unsupported and unworkable. Tax assessment may involve investigative and adjudicatory powers, and collection is not purely voluntary.
2. The correct approach is to examine the rationale of chapter 9. Its protections secure independence from political pressure for public officers and indirectly protect the public. A transfer is constitutionally permissible where the recipient body is genuinely independent and not a device or sham, and where adequate and effective safeguards protect employees and the public from executive interference.
3. The Authority satisfied those conditions. The Board could not direct revenue operations or access protected taxpayer and litigation information. Ministerial powers were limited to general policy directions. Appointments, tenure and removal of senior officers were subject to statutory safeguards and affirmative parliamentary resolution. Other employees retained private-law, industrial-relations and constitutional protections, and tax decisions were subject to appellate remedies.
4. Section 74(3) of the Constitution contains no limitation based on whether a function is core. Section 121(1) protects persons in appointment and removal from public offices; it does not protect public offices from abolition by Parliament. The transfer therefore did not engage the entrenched amendment procedure in section 54(2).
5. The Board did not determine the proper scope of the Act’s definition of enforcement or the precise division of enforcement responsibilities. Those questions were left to the domestic courts if raised in a targeted challenge.

1. Privy Council: Appeal dismissed. The Board agreed with the outcome below, but for different reasons.
2. Court of Appeal of the Republic of Trinidad and Tobago: Appeal dismissed and James J’s decision upheld on 28 May 2024.
3. High Court: James J dismissed the appellant’s constitutional claim on 17 November 2023.