Attorney General of Trinidad & Tobago v Mootoo

JurisdictionTrinidad & Tobago
JudgeCorbin, J.A.,Hyatali, C.J.
Judgment Date26 March 1976
Neutral CitationTT 1976 CA 23
Docket NumberCivil Appeal No. 2 of 1975
CourtCourt of Appeal (Trinidad and Tobago)
Date26 March 1976

Court of Appeal

Hyatali, C.J.; Phillips. J.A.; Corbin, J.A.

Civil Appeal No. 2 of 1975

Attorney General of Trinidad & Tobago

T. Hosein, Q.C., A. Warner, Q.C., Solicitor General, and I. Black man, State Counsel for the appellant.

Dr. F. Ramsahoye, Q.C., and R. Maharaj for the respondent

Statute - Unemployment Levy Act — Whether unconstitutional

Corbin, J.A.

I have had an opportunity of reading beforehand the judgments of the learned President and Mr. Justice Phillips and I agree with the opinions expressed and the orders proposed. However, in deference to the detailed and helpful arguments by Counsel on both sides and to the importance of the points raised in this appeal, I would add some observations of my own.


On 22nd October 1974, Ramesh Dipraj Kumar Mootoo (hereinafter called “the respondent”) moved the high Court for an order declaring that the Unemployment Levy Act, 1970 (hereinafter called “the Act”) is ultra vires the Constitution and is null and void and of no effect. On 13th December 1974, Braithwaite J. made the declaration prayed for, and the Attorney General (hereinafter called “the appellant) has now appealed against that order on the ground that the judge was wrong in holding that the respondent had so established.


The learned trial judge had clearly put a good deal of research and thought into his judgment but it seems, with respect, that he fell into two fundamental errors. The first was to misconceive what were the basic issues for his determination, and the second was to rely on several authorities which were not relevant and which, in same instances, did not support the findings he was seeking to make. In the result, he approached the matter as if it was the duty of the appellant to establish the validity of the Act rather than as if it was for the respondent to show it to be unconstitutional.


He based his judgment to a large extent on a finding that the Act violated section 5 of the Constitution since it was by its nature confiscatory. The imposition of a tax does not, however, violate the right of property unless it is made “mala fide” and that has not been shown to apply in the present case.


On the contrary, the booklet published by the Central Statistical Office showing the state of unemployment in this country in 1969 and tendered as an exhibit to the affidavit of Lancelot Busby supported the contention that there was need for such a tax. The learned trial judge did not admit this affidavit but, in my view, it was relevant and therefore admissible.


By using the approach referred to, he failed to give sufficient consideration to the important issue - whether or not the respondent had established beyond doubt that the Act had not met the requirements of a taxing statute.


There is a very heavy burden cast on any person challenging the validity of any piece of legislation since there is a presumption that the legislature understands and correctly appreciate the needs of the people and that its laws are directed to problems made manifest by experience. The Court will only declare a statute invalid if it conflicts with the Constitution and so the onus is on anyone seeping to impugn a statute to show that in the circumstances which existed at the tune it was passed, the legislation violated rights enshrined in the Constitution.


This strong presumption in favour of validity has been recognised by many learned authors of textbooks, but it will be sufficient to refer only to one or two of these, e.g. Cooley on Constitutional Limitations (1972) Reprint at p.183;

“The constitutionality of a law, then is to be presumed, because the legislature, which was first required to pass upon the question, acting, as they must be deemed to have acted, with integrity, and with a just desire to keep within the restrictions laid by the constitution upon their action, have adjudged that it is so. They are a co-ordinate department of the government with the judiciary, invested with very high and responsible duties, as to some of which their acts are not subject to judicial scrutiny, and they legislate under the solemnity of an official oath, which it is not to be supposed they will disregard.”


Black on Interpretation of Laws (1911) p.110:

“41. Every act of the legislature is presumed to be valid and constitutional until the contrary is shown. All doubts are resolved in favour of the validity of the act. If it is fairly and reasonably open to more than one construction, that construction will be adopted which will reconcile the statute with the constitution and avoid the consequence of unconstitutionality.

Legislators, as well as judges, are bound to obey and support the constitution, and it is to be understood that they have weighed the constitutional validity of every act they pass. Hence the presumption is always in favour of the constitutionality of a statute; every reasonable doubt must be resolved in favour of the statute, not against it, and the courts will not adjudge it invalid unless its violation of the constitution is, in their Judgment, clear, complete, and unmistakable. And, further, a state statute can be declared unconstitutional only where specific restrictions upon the power of the legislature can be pointed out, and the case shown to come within them, and not upon any general theory that the statute is unjust, oppressive, or impolitic, or that it conflicts with a spirit supposed to pervade the constitution, but not expressed in words. Neither will any court, in determining the: constitutional validity of a statute, take into consideration or pass upon the motives of the legislature in its enactment.”


And in Seervai's Constitutional Law of India at p.54:

“There is a presumption in favour of constitutionality and a lava will not be declared unconstitutional unless this case is so clear as to be free from doubt; to doubt the constitutionality of a law is to resolve; it in favour of its validity.”


The same principle has also been emphasized by the: Courts in a long list of decided cases. One of the most recent of these is the: decision of the Privy Council in Attorney General and Another v. Antigua Times Limited [1975] 3 All. E. R. 81 where Lord Fraser of Tulleybelton stated at p.90:

“In some cases it may be possible for a court to decide from a mere perusal of an Act whether it was or was not reasonably required. In other cases the Act will not provide the answer to that question. In such cases has evidence to be brought before the: court of the reasons for the Act and to shoe that it was reasonably required? Their Lordships think that the proper approach to the question is to presume, until the contrary appears or is shown, that all Acts passed by the: Parliament of Antigua were reasonably required. This presumption will be rebutted if the statutory provisions in question are, to use the words of Louisy J, ‘so arbitrary as to compel the conclusion that it doers riot involve an exertion of the taxing power but constitutes in substance and effect, the direct execution of a different and forbidden power’.”

“The presumption is rebuttable. Parliament cannot evade a constitutional restriction by a colourable device. But in order to rebut the presumption their Lordships would have to be satisfied that no reasonable member of Parliament who understood correctly the meaning of the relevant provisions of the Constitution could have supposed that hearings in camera were reasonably required for the protection of any of the interests referred to; or, in other words, that Parliament in so declaring was either acting in bad faith or had mis-interpreted the provisions of the Constitution under which it purported to act.”


That the same considerations have guided the Courts in the United States of America is shown by:

Cromwell v. Benson (1931) 285 U.S. 22

Fletcher v. Peck (1809) 6 Cranch 128

Ogden v. Sounders 12 Wheat 213 .


Equally well recognised is the power of the legislature to impose taxes. In Cooley on Constitutional Limitations (supra) at ps. 479-481 the learned author expresses the view that:

“The power to impose tuxes is one so unlimited in force and so searching in extent, that the courts scarcely venture to declare that it is subject to any restrictions whatever, except such as rest in the discretion of the authority which exercises it… The power to tax rests upon necessity, and is inherent in every sovereignty.”


One of the main arguments advanced by the respondent both here and in the High Court in support of his application was that this Act was not really a taxing statute but only a colourable device for evading the requirements of the Constitution.


The ingredients necessary for creating a taxing statute were fully discussed in Inland Revenue: Commissioner & Attorney General v. Lilleyman and Others (1964) 7 W.I.R. 496 where it was held that the three elements of a tax are (1) it must be imposed by the State or other public authority, (2) it must be compelled, and (3) the imposition must be for a public purpose.


It was necessary, therefore, for the respondent, in order to succeed, to show that one or all of these ingredients was lacking. At the hearing before us Counsel conceded that the Act contained the first two elements, but contended that it did not state clearly what are the public purposes for which the money was being raised. He submitted that (a) no purposes were clearly stated in the Act and (b) even if purposes were stated, then they were not public purposes.


In support of the first proposition he contended that the legislature could not have intended the purposes to be set out in the definition section alone but it must have been intended that section 2(1) should be read in conjunction with section 19. The effect of this, he submitted, would be that the purposes would not be known until...

To continue reading

Request your trial
1 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT