This is the age of oppression by law
Jun 18, 2017 , http://www.kaieteurnewsonline....f-oppression-by-law/
The provision banning used tyres and demanding that vehicles imported into Guyana must have new tyres is inelegantly worded and badly constructed. A ban on used tyres should not be extended to demand for imported vehicles to have new tyres.
The Guyana Revenue Authority (GRA) has through a letter to this newspaper, which was published, responded to claims made in a Peeping Tom column of June 3, 2017. The GRA, in so doing, has supplied the legal basis upon which it has sought to impose penalties on persons who import vehicles which have used tyres.
The GRA has indicated that amendments have been made to the List of Prohibited and Restricted Imports under the Second Schedule of the Customs Act, and that these amendments place restrictions on the importation of “used tyres for motor vehicles including motor cars, vans, sport utility vehicles, pick-ups, buses and other similar vehicles” as well as prescribes that “vehicles shall be fitted with new tyres including spare tyres, prior to clearance and release of such vehicles in a manner to be determined by the Commissioner-General”.
The following points are pertinent in relation to this legal authority under which the ban on used tyres is made:
First, the GRA does not make laws; it only administers them. But the GRA as the technical agency concerned with administering imports and exports does usually provide the technical input into the framing of customs laws. The GRA, therefore, would most likely have had an input into the framing of the legislation relating to the ban on used tyres.
Second, is the fact that the ban on used tyres is essentially a trade ban and should have been made under the Trade Act, rather than the Customs Act, since the ban is more a trade measure than a customs measure.
Third, is the inelegance of the legal construction of the prohibition. An examination of the list of import restriction would reveal a certain manner of legal construction. Prohibitions and restrictions are negatively constructed, that is, the law states what is proscribed not what is prescribed. It states what cannot be done rather than what should be done.
It is unusual to find an import restriction which would state that vehicles must be imported with new tyres. It is normal for prohibitions and restrictions to state what cannot rather than what should be done.
The GRA has also attempted to provide the legal basis for imposing penalties on persons who import motor vehicles with used tyres. The GRA says that the basis is Section 218 of the Customs Act. It really means Section 216.
The GRA is confused about that section according it a right to impose penalties. Section 216 of the Customs Act creates an offence. It creates an offence of importing restricted or prohibited imports. The offence is punishable under the law, and that punishment is for the court to administer. The punishment is a fine and imprisonment, both at the election of the Commissioner-General. This election is usually done on conviction.
The GRA, under another section of the law, can settle out-of-court. It is mindful, in so doing, about the severity of the penalties which can be imposed should the matter be successfully prosecuted in court, and so it usually imposes a stiff out-of court settlement.
This right, however, should not be confused with the right to set penalties. GRA has no such rights which constitute an exercise of judicial functions. The next thing GRA will claim is that it has a right also to jail those who import used tyres, since the law does provide not only for a monetary penalty, but also for jail.
The issue that the GRA is avoiding is the issue of knowledge of the offence of importing used tyres. The prohibition under the Customs Act means that a person who imports a vehicle from overseas has no guarantee that the supplier is going to send the vehicle with new tyres, yet the importer is going to be held liable under a provision of the law which provides for a fine and jail.
So, someone can be jailed for importing a vehicle which has used tyres. And worse yet, the vehicle can be forfeited simply because it has used tyres. This is the age of oppression by law.