In a dispute that stretches back nearly two decades, the attorney representing a group of Jehovah's Witnesses made a final attempt yesterday to convince the Court of Appeal to overturn a Supreme Court decision which requires his clients to continue to make National Insurance contributions.
Attorney W. P. Cathcart, who represents Glen Alexander Colebrooke and the Christian Congregation of Jehovah's Witnesses of The Bahamas, laid out several reasons yesterday why the appellate court justices should do so.
The Jehovah's Witnesses are appealing the entire ruling of Justice Stephen Isaacs, who dismissed their application for a review of a National Insurance Board's (NIB) decision that requires 28 Witnesses to make the contributions for a small monthly stipend that they receive.
Members of the faith are not paid for service in the congregations, however, full-time branch workers like Colebrooke and traveling representatives get a modest monthly allowance.
NIB has said that this arrangement constitutes a contract of employment and the funds must be taxed. But the Witnesses said Colebrooke's duties at the branch were voluntary and that he should not be required to make the payments to the NIB fund because the money is a stipend, not a salary.
In September 2008, Isaacs ruled that there was no basis on which the court can grant the review. He said the Witnesses did not avail themselves of the appeal process to the Supreme Court as allowed by law. He noted that the appeal had to be launched on a question of law within 21 days after delivery of a decision by the Board, and a judicial review had to be launched within six months after that decision.
Isaacs noted then that NIB made the decision on January 27, 1992, that the ministers were employed persons and must pay contributions under the Act. Isaacs, in his judgment, noted that there was no appeal from that determination. However, he added that NIB should have allowed the Witnesses to be a part of the process. They were not told of the decision until after an NIB meeting had already convened.
On several occasions, the Witnesses, through their attorney, wrote NIB asking it to revisit the decision. However, on April 12, 2005 and again on February 16, 2006, NIB continued to reaffirm its original decision.
It wasn't until August 16, 2006 that the Witnesses sought leave to apply for a judicial review.
Isaacs said although the procedure for convening and conducting the hearing in 1992 was not strictly followed, the applicants stated in writing that they were not seeking a formal review.
In the Court of Appeal yesterday, Cathcart said the decision of NIB has to be an error. He said the Witnesses never entered into an employment contract with The Worldwide Order of Special Full-Time Servants of Jehovah's Witnesses. He also pointed out that the Witnesses are volunteers and have all taken a vow of poverty.
Court of Appeal President Dame Joan Sawyer said her difficulty with the matter is that while the Witnesses help the poor and perform other social services duties, the tax that they are now required to pay to the government is used to help the same type of people who they want to assist.
She also questioned whether NIB presented sufficient evidence to the court to make a proper determination.
She told attorney Harvey Tynes, who represents NIB, that he was not given all of the facts by the people who were directing him.
For instance, she said she does not know whether Baptist ministers or Mormons are made to pay taxes.
She said if a tax exemption for ministers is a constitutional norm, then it must be applied across the board.
Dame Joan said she is unsure how she will frame her judgment.
She wondered what effects her decision would have on society and the administration of justice.
She added that while it is not her job to mull over such issues, in a society that is as small as The Bahamas, justices have to think about the effects of their decisions.
In addition to Dame Joan, Justices Christopher Blackman and Stanley John presided over the case.
They reserved judgment in the case.