Derek Achong

Se­nior Re­porter

derek.achong@guardian.co.tt

Em­bat­tled Au­di­tor Gen­er­al Jai­wantie Ram­dass has been giv­en the green light to con­tin­ue her law­suit over a Cab­i­net-ap­point­ed probe in­to the han­dling of a mis­rep­re­sen­ta­tion of rev­enue in the na­tion­al ac­counts.

Five Law Lords of the Privy Coun­cil dis­missed the ap­peal brought by Fi­nance Min­is­ter Colm Im­bert and the Cab­i­net af­ter hear­ing sub­mis­sions from at­tor­neys for the State at the Unit­ed King­dom Supreme Court Build­ing in Lon­don, Eng­land, yes­ter­day morn­ing.

They spent al­most two hours quizzing Se­nior Coun­sel Dou­glas Mendes over the mer­its of the ap­peal be­fore they de­liv­ered an oral rul­ing af­ter tak­ing a short break. They did not so­lic­it sub­mis­sions from Ram­dass’ lawyers, led by Se­nior Coun­sel Anand Ram­lo­gan, be­fore giv­ing their oral de­ci­sion.

UK Supreme Court Deputy Pres­i­dent Lord Patrick Hodge, who chaired the ap­peal board, stat­ed that he and his col­leagues de­cid­ed to im­me­di­ate­ly rule on the case based on its im­por­tance. He promised that writ­ten rea­sons would be pro­vid­ed at a lat­er date.

“The Court of Ap­peal’s or­der stands,” Hodge said. In the ap­peal, at­tor­neys for Im­bert and the Cab­i­net were con­tend­ing that the Court of Ap­peal got it wrong when it over­turned the de­ci­sion of High Court Judge West­min James to refuse Ram­dass leave to pur­sue her case over the con­sti­tu­tion­al­i­ty of the probe.

In June, Jus­tice James ruled that Sec­tion 116(6) of the Con­sti­tu­tion, which in­su­lates the Au­di­tor Gen­er­al from be­ing un­der the di­rec­tion and con­trol of any oth­er pow­er or au­thor­i­ty, could not ap­ply to in­ves­ti­ga­tions such as the one or­dered by the Cab­i­net. He al­so stat­ed that Ram­dass failed to prove bias by Im­bert.

Weeks lat­er, Jus­tice Pe­ter Ra­jku­mar, who de­liv­ered the Ap­peal Court’s re­view of Jus­tice James’ de­ci­sion, stat­ed that the thresh­old for grant­i­ng leave in such a case is low. “Leave will there­fore be grant­ed be­cause, as a mat­ter of law, the low ar­gua­bil­i­ty thresh­old has been at­tained,” he said, as he and his col­leagues re­mit­ted the case to be con­sid­ered by an­oth­er High Court Judge.

While the probe con­tin­ued as the ap­peal was be­ing pur­sued, the in­ves­tiga­tive com­mit­tee led by re­tired judge David Har­ris agreed to hold off on all as­pects re­lat­ed to her and her of­fice un­til her le­gal chal­lenge is re­solved.

As Mendes was pre­sent­ing his sub­mis­sions yes­ter­day, he was re­peat­ed­ly in­ter­rupt­ed by La­dy In­grid Sim­ler, who ques­tioned whether there was an “even-hand­ed” ap­proach in the probe and whether Im­bert’s con­duct would al­so be un­der con­sid­er­a­tion.

About the case

The dis­pute be­tween Ram­dass and the min­istry arose in April af­ter the min­istry sought to de­liv­er amend­ed pub­lic ac­counts, 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. How­ev­er, they claimed that their client had, for the time be­ing, 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. 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 in Par­lia­ment, 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.

Ram­dass was al­so rep­re­sent­ed by Kent Sam­lal, Natasha Bis­ram, and Aasha Ram­lal. Si­mon de la Bastide, SC, Jo-Anne Julien, Jerome Ra­j­coomar, and Son­nel David-Longe ap­peared along­side Mendes for Im­bert and the Cab­i­net.

Ram­dass’ le­gal team: More ur­gent prob­lems to be ad­dressed by Govt

In a press re­lease, Ram­dass’ lawyers wel­comed the out­come.

“Ms Ram­dass stood her ground de­spite at­tempts by the Gov­ern­ment to in­tim­i­date and bul­ly her,” they said. “To­day, she has been vin­di­cat­ed in her pur­suit of jus­tice and her quest to pro­tect the in­tegri­ty and in­de­pen­dence of her of­fice, which per­forms the crit­i­cal role of over­see­ing the gov­ern­ment’s fi­nan­cial ac­counts.”

They promised to pur­sue fur­ther le­gal ac­tion if the probe is re­sumed in re­la­tion to her be­fore her sub­stan­tive case is de­ter­mined. “Should the Gov­ern­ment con­tin­ue with this cha­rade of an in­ves­ti­ga­tion, she will con­tin­ue to stand her ground and fight for jus­tice,” they said. “It is time for good sense to pre­vail, as there are far more ur­gent and press­ing prob­lems that must be ad­dressed by the Gov­ern­ment,” they added.

Op­po­si­tion Leader: It’s a waste of time and mon­ey

Op­po­si­tion Leader Kam­la Per­sad-Bisses­sar al­so weighed in on the out­come in a press re­lease. Re­fer­ring to how the Privy Coun­cil swift­ly dis­pensed with the ap­peal, Per­sad-Bisses­sar sug­gest­ed that it was a waste of time and mon­ey.

“This was a pub­lic hu­mil­i­a­tion and re­pu­di­a­tion by the court to high­light the in­com­pe­tence of these high-priced PNM-af­fil­i­at­ed at­tor­neys on whose tax­pay­ers’ dol­lars are wast­ed,” she said.

She al­so claimed that the ba­sis of the probe is yet to be re­solved. “The fact re­mains that this Gov­ern­ment can­not ac­count for al­most three bil­lion dol­lars,” Per­sad-Bisses­sar said.

No re­sponse from Im­bert

Guardian Me­dia reached out to Im­bert for a re­sponse. Im­bert, who is in Paris, France, to at­tend a con­fer­ence and sign a treaty fo­cused on trans­paren­cy and the ex­change of in­for­ma­tion for tax pur­pos­es, did not re­spond to a What­sApp mes­sage up to late yes­ter­day.