Traffic ticket refund dilemma
- Government, attorneys wrangle over how motorists should collect $2 billion of illegally imposed fines - Court to decide on compensation regime in September
Published:Sunday | May 5, 2024 | 12:10 AMLivern Barrett - Senior Staff Reporter
Motorists who for over 15 years paid traffic ticket fines that were illegally imposed should be required to show proof in order to collect a court-ordered refund, attorneys for the Government have proposed.
However, lawyers for the motorist whose lawsuit uncovered the legislative blunder, made in 2006, and which triggered the refund order, have shot down the suggestion, cautioning that such a “restriction” would unfairly exclude eligible motorists.
Jamaica’s Constitutional Court ordered the refund in a landmark ruling in January and directed both sides to submit proposals outlining a mechanism for the rebate, which is expected to cost taxpayers over $2 billion.
The court is expected to hand down a decision on the refund regime on September 23.
Under the proposal filed in court on April 26 by the Director of State Proceedings, motorists eligible for a refund would need to provide Tax Administration Jamaica (TAJ) with the traffic ticket that was issued; a receipt showing that the fine was paid; as well as their banking information.
They would have a one-year window to claim their refund, the Government also proposed.
“On approval, the money constituting the excess that was unlawfully charged will be sent to the aggrieved persons’ bank account,” the Director of State Proceedings explained in court documents obtained by The Sunday Gleaner.
The refund was ordered by the Constitutional Court in January at the end of the lawsuit filed by software engineer Maurice Housen challenging a $5,000 ticket he was issued by cops in July 2021 for a speeding violation.
The $5,000 fine was six times more than the $800 stipulated for a speeding violation in the 1938 Road Traffic Act (RTA), the legislation that was in effect at the time. The 1938 RTA has since been replaced by new legislation.
UNFAIR RESTRICTIONS
Housen’s attorneys Gavin Goffe, Jahmar Clarke and Matthew Royal, from the law firm Myers, Fletcher & Gordon, took issue with the Government’s proposal for the refund, arguing that “such restriction would unfairly limit execution of the court order” to some eligible motorists.
“This limitation is unnecessary considering that ... there is no evidence before the court that the State is not possessed of all the necessary records to give effect to the court’s orders,” they said in legal arguments filed in court.
“Proof of payment inherently serves as evidence that a ticket was issued, hence, requiring proof of both the ticket and receipt is redundant.”
Cops issued a total of 4,779,473 traffic tickets, with fines totalling $5.7 billion, in 14 of the 15 years the illegally imposed fines were on the books, The Sunday Gleaner reported in February, citing a review of official figures published in the Economic and Social Survey of Jamaica (ESSJ).
The data for one year was unavailable.
A total of $2.18 billion in fines was paid to the Government through TAJ and before that the Inland Revenue Service, to settle 1.6 million tickets issued in six of the 15 years, according to the ESSJ data.
There was no data on the total number of traffic tickets issued and fines collected by tax authorities in each of the remaining years.
RECEIPTS DESTROYED
A middle-aged professional based in St Andrew acknowledged getting ten traffic tickets over the 15-year period, but said he has already destroyed all payment receipts.
“Sometimes when I’m cleaning and come across the receipts, me say ‘alright, enough time pass already so me nuh need fi keep them’,” he told The Sunday Gleaner during an interview last Thursday.
“Sometimes when you get the receipts you put dem one place just in case something happens, but after a certain time you tear dem up and dash dem weh.”
The inability by any eligible motorist to produce a ticket or a record of his payment, he argued, should not disqualify them from a rebate.
“The same way they can use their system to find out that you have outstanding tickets, how come they can’t use it to confirm that you pay?” he questioned.
“They must have some records to show that your ticket was paid. So if they have dat, why are they now asking us to provide all these things?”
FOUR CATEGORIES
Housen’s attorneys suggested that motorists eligible for the rebate can be placed in four categories: those with proof of ticket and payment (Class A); those with proof of ticket alone (Class B); those with proof of payment alone (Class C); and those with no proof of either ticket or payment (Class D).
A good starting point, they suggested, is TAJ’s traffic ticket database which allows citizens to access information about paid and unpaid tickets by entering details of their drivers’ licence or their taxpayer registration number.
“This is prima facie proof that the State has all the necessary information in their possession to determine persons who are entitled to a refund in category A, B, C and D. It is just for the State to verify that all available records are in the database, which that website is accessing,” the attorneys suggested in their legal arguments.
They argued that “it is only fair” for all eligible motorists to rely on a printout from the TAJ database to support their claims for a refund.
“It is only where the records … do not verify that a payment was made that it should be necessary for the member of the class to produce their receipt,” the lawyers noted.
‘NULL AND VOID’
In 2006 and again in 2007, the Government introduced massive increases in traffic ticket fines through separate Provisional Collection of Taxes Act (Road Traffic) orders signed by then finance minister, Dr Omar Davies.
But Housen’s attorneys argued in their lawsuit that this approach was wrong.
They argued that at the time the software engineer was ticketed by the police, the fines or fixed penalties for traffic offences listed in the 1938 RTA were not increased by the legislature or the transport minister, as was mandated in Section 116 of the 1938 RTA, but instead by Davies, the finance minister.
The panel of three Constitutional Court judges that heard the lawsuit agreed, declaring the orders signed by Davies “null and void and of no legal effect”.
They also ordered that drivers and owners of motor vehicles in Jamaica who paid fines for traffic tickets issued between June 15, 2006 and November 3, 2021, which exceeded the amount stipulated in the old 1938 RTA, are entitled to a refund of the difference on proof of payment.
The panel of judges also awarded Housen $250,000 in damages after declaring that the $5,000 speeding ticket was a breach of his constitutional right to due process as guaranteed under Section 16 (11) of the Jamaican Constitution.
In light of the judgment, drivers in the public transportation sector who were compelled to pay the illegally imposed traffic fines are now lining up to file a wave of constitutional claims against the Government, which legal experts believe would be a slam dunk.