Jaiwantie awaits ruling on lawsuit against Cabinet probe

Embattled Auditor General Jaiwantie Ramdass is expected to learn the outcome of her lawsuit, which challenges a Cabinet-appointed probe into the handling of misrepresentation of revenue in the national accounts, in May.

High Court Judge Joan Charles promised to deliver her judgment on May 12 when she met with the parties and gave directions for the filing of submissions during a case management conference in December. Meanwhile, the country’s highest appellate court yesterday expressed disappointment over attempts by Finance Minister Colm Imbert and his Cabinet colleagues to prevent Ramdass from mounting her legal challenge.

In November last year, five Law Lords of the Privy Council dismissed an appeal brought by Imbert and the Cabinet over Ramdass being granted leave to pursue a lawsuit over the fairness of the probe. They gave their decision without even hearing from Ramdass’ lawyers on the date of the hearing but delivered written reasons for their decision yesterday.

Lady Ingrid Simler, who wrote the judgment, said that it was unfortunate that Imbert challenged Ramdass’ ability to pursue the case instead of allowing a judge to weigh in on it.

She said, “It might have been thought preferable for this case to go forward to a full judicial review hearing so that the serious allegations of unlawful conduct made by the respondent (Ramdass) could be fully investigated, considered and determined on their merit.

“It might be thought that public confidence in the appellants (Imbert and the Cabinet) would be strengthened if the allegations are found to be without merit, but if there is no investigation, the allegations do not simply disappear; on the contrary, they may simply grow louder in volume,” she added.

Simler ruled that the Court of Appeal could not be faulted for reversing a decision of High Court Judge Westmin James to refuse Ramdass leave to pursue the case. “The appellants have failed to establish a knock-out blow to either ground or to demonstrate that the Court of Appeal was plainly wrong to grant leave to apply for judicial review,” she said.

Lady Simler ruled that the Appeal Court was correct to conclude that Ramdass had an arguable case with a realistic prospect of success that the probe was biased.

She pointed out that Imbert recommended the investigation, helped select the investigation team, set their terms of reference, was responsible for their remuneration, and was expected to receive their report.

“Notwithstanding his own role as minister of the department responsible for the understatement and the fact that the investigation is capable of apportioning blame as between his department and that of the Auditor General, his conduct is not targeted for investigation in any of the terms of reference, whereas the conduct of the Auditor General is,” Lady Simler said.

“It is arguable that this has the appearance of a one-sided investigation seeking to deflect attention or blame away from the minister,” she added.

Lady Simler also rejected claims that the probe was not a bid to lawfully begin the process of removing Ramdass under the Constitution. She stated that the report of the investigative team, led by retired judge David Harris, might be the first step in a sequence of measures culminating in the removal process.

“Although the investigation team cannot act in a disciplinary capacity and its findings cannot be binding on the President, the Prime Minister, or any tribunal set up under section 136, the findings it makes might indirectly present what is effectively a fait accompli (an accomplished fact) in relation to questions about the Auditor General’s removal,” she said.

Ramdass was represented by Anand Ramlogan, SC, of Freedom Law Chambers, Kate Temple-Mabe, Mohammud Hafeez-Baig, and Aasha Ramlal.

Imbert and the Cabinet were represented by Douglas Mendes, SC, Simon de la Bastide, SC, and Jerome Rajcoomar.

About the Case

The dispute between Ramdass and the Ministry of Finance arose in April last year, after the ministry sought to deliver amended public accounts for 2023, which sought to explain a reported $2.6 billion underestimation in revenue.

Ramdass initially refused receipt as she claimed that she needed legal advice on whether she could accept them after the January statutory deadline for submission. Ramdass eventually accepted the records and dispatched audit staff to verify them.

She then submitted her original annual report to Parliament, which was based on the original records. In subsequent legal correspondence between the parties, Ramdass claimed that her audit team was unable to reconcile the amended records based on documents it audited.

She also contended that the amended records appeared to be backdated to the original statutory deadline in January. Ramdass also took issue with the fact that the discrepancy was initially estimated at $3.4 billion.

Imbert repeatedly denied any wrongdoing. His lawyers claimed that the reconciliation after the initial estimate revealed that the variance was in fact $2,599,278,188.72, which was attributed to Value Added Tax (VAT), Individual, Business Levy and Green Fund Levy contributions.

They also claimed that checks in relation to the approximate $780 million difference between the initial and final estimated variances attributed it to tax refund cheques to taxpayers issued for the 2022 financial year being cashed in the financial year 2023. They attributed the error to a switch from a manual to an electronic cheque-clearing system by the Central Bank.

They claimed that there was no backdating, as they noted that the allegation was made because a document related to the original public accounts was inadvertently included in the revised documents. They also contended that Ramdass acted illegally in initially refusing to accept the amended accounts, but their client decided against taking legal action against her for it.

Imbert eventually agreed to lay the original report in Parliament and did so on May 24 of last year. His decision was based on the understanding that Ramdass would issue a special report clarifying her initial report based on the amended records provided.

The report was eventually supplied, but Ramdass maintained the similar concerns that were raised in her initial report. In laying the special report, Imbert opposed comments made by Ramdass in an affidavit in her case in which she claimed that her ability to perform a proper audit and verify the issues that caused the error was hampered as she was allegedly blocked by the Central Bank from accessing its electronic cheque clearing system. Ramdass also has a separate pending case over her ability to seek independent legal advice and representation, to be paid for by the State in relation to what transpired. That case remains before Justice James.