Submitted by GoWEB Caribbean (written by Caswell Franklyn)

Under normal circumstances when Government wants to change a law; a bill is laid, debated and passed in the House of Assembly. The process is repeated in the Senate, and then it is signed into law by the Governor-General.

However, when Government wants to raise revenue it can do so, without passing the necessary law, by introducing budgetary proposals to levy a new tax or raise an existing tax in accordance with the Provisional Collection of Taxes Act, Chapter 85 of the Laws of Barbados. That Act defines “budgetary proposals” as any proposal made to the House of Assembly by or on behalf of the Minister responsible for Finance for the purpose of raising revenue to meet public expenditure. It then states “tax” includes all assessments, charges, duties, fees, rates, impositions and other levies (however called) the proceeds of which are payable into the Consolidated Fund as part of the revenues of Barbados.

It is clear from the Act that the Minister can only use that piece of legislation to raise revenue that is paid into the Consolidated Fund. For all intents and purposes the Consolidated Fund is the Treasury. He cannot therefore use a budget to decrease a tax or raise bus fares which are paid to the Transport Board.

After the Minister has used the device of budgetary proposals to raise or introduce a new tax, section 3(2) of the Act declares that the tax ceases to be payable if the appropriate enactment is not passed within four months of the date on which the budgetary proposals are made to the House of Assembly. In these circumstances, the tax shall be refunded to whoever paid it in accordance with section 5.

nstead of complying with the law, both political administrations over the years have resorted to passing questionable validation acts. In essence, they are going into the past and making legal that which was illegal. Put another way, Parliament would be imposing taxes retrospectively which is forbidden by the Constitution Section 16 of the Constitution is supposed to protect citizens from the deprivation of property, except by or under the authority of a written law. (It is well established by the Courts that money is property). No written law would be in place when the budgetary proposals expire in four months so Government would be acting illegally by continuing to collect the taxes. The only thing that Government can legally do is refund the taxes in accordance with the Provisional Collection of Taxes Act. As far as I am aware that Act and no other has authorised the Parliament to pass an act to validate the illegal collection of taxes. I am of the view that Government has no authority by way of ordinary legislation to deprive a citizen of his property/money retrospectively. My question therefore is who protects the citizen when Parliament refuses to comply with the law? Please don’t answer, the Courts. Personally, I would be afraid to approach the Courts against the Government if they succeed in amending the law to appoint an unqualified person to be Chief Justice, but that is another subject.

The foregoing has caused me to wonder: did the Provisional Collection of Taxes Act authorise the Parliament to act unconstitutionally? Section 16 of the Constitution operates to protect citizens from the deprivation of their property except by or under the authority of a written law. The Budget is not a written law, and the written law which authorises a budget, the Provisional Collection of Taxes Act is inconsistent with the Constitution and would therefore be unconstitutional since it did not amend the Constitution.

Section 26 of the Constitution saves any written law that would otherwise be unconstitutional if the law in question was enacted or made before 30th November 1966 and has continued to be part of the law of Barbados at all times since that day; or repeals and re-enacts an existing law without alteration. The Provisional Collection of Taxes Act became part of the Laws of Barbados on June 30, 1967 and it does not state that it repeals and replaces anything. It is not saved and is therefore unconstitutional.

If I am correct wouldn’t this be mind boggling.