Tax exemption for Chancellor, Chief Justice unlawful – High Court rules
---State to pay former judge $2.5M compensation
Some six years after Justice (retired) William Ramlall challenged a law that granted tax exemptions to the Chancellor and Chief Justice but did not afford other judges the same treatment, the High Court has found the law to be unfair and unlawful.
In the ruling handed down by Justice Fidela Corbin-Lincoln, the State was also ordered to pay the former judge compensation in the sum of $2.5 million.
A judge at the time, Justice Ramlall had asked the High Court to find that a 2004 amendment to Section (13) of the Income Tax Act Chapter 81:01 infringes on other judges’ right to equality and equal protection and to declare it unconstitutional.
The amendment in effect granted tax exemptions to the Chancellor and Chief Justice but no equivalent exemptions to other judges.
In finding the law discriminatory, Justice Corbin-Lincoln noted that in other Caricom countries all judges are treated equally in relation to taxes, drawing examples from Trinidad and Tobago and the Eastern Caribbean where all judges, not only the Chancellor and Chief Justice are exempted from taxes.
“There is no subset of judges that enjoys the exemption and others excluded,” she said even as she pointed out that in Jamaica, all judges are subject to taxes.
It was found that the State breached Justice Ramlall’s fundamental right of equality of the law as guaranteed under Article 149 ‘D’ of the Constitution when he was made to pay judicial income tax from 2004 up until his retirement.
The retired judge claimed that since the passage of the Act, he was subjected to taxes on his emoluments amounting to in excess of $34 million.
Justice Ramlall was a sitting judge when he applied in 2015 for constitutional redress.
In his application, he reminded that in 2003 judges had engaged in a meeting with the President regarding the provision of better terms and conditions of service for all judges. A case was made out for the grant of an exemption from income tax on the earnings of all judges and in 2004, the relevant portion of the Act was introduced and passed in the National Assembly.
Not satisfied with the amendment, almost 11 years later he asked the High Court to declare that the State is not entitled to take or receive income tax derived from his emoluments.
Additionally, he asked for a declaration that upon retirement he is entitled to a monthly pension and retirement benefits of not less than seven-eighths of his salary at the time of his retirement.
In addition to finding the amendments unconstitutional and awarding the $2.5M compensation, Justice Corbin-Lincoln said that Article 197 (10) expresses the notion that judges ought not to be placed in a position of lack and inadequate means both while serving and in retirement.
However, she noted that the terms of the constitutional provision are too unclear, ambiguous, and imprecise to give rise to a legitimate expectation of better pension rights that currently exist by statute.
To this end, Justice Corbin-Lincoln ruled that Justice Ramlall failed to establish a right to a declaration that he is entitled upon retirement to a monthly pension and retirement benefits of not less than seven-eighths of his salary at the time of his retirement.
Attorneys R. Satram, P. Mohanlal, C.V Satram, Ganesh Hira, Manoj Narayan, and Ron Motilall appeared for Justice Ramlall, while Solicitor General Nigel Hawke appeared for the Attorney General.