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Monday, February 17, 2025

Jaiwantie awaits ruling on lawsuit against Cabinet probe

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19 days ago
20250129
Anand Ramlogan, SC, centre, and attorneys Aasha Ramlal, left, and Kate Temple-Mabe stand outside the United Kingdom Supreme Court Building in London, England, after presenting submissions in an appeal involving Auditor General Jaiwantie Ramdass on November 7.

Anand Ramlogan, SC, centre, and attorneys Aasha Ramlal, left, and Kate Temple-Mabe stand outside the United Kingdom Supreme Court Building in London, England, after presenting submissions in an appeal involving Auditor General Jaiwantie Ramdass on November 7.

COURTESY: ANAND RAMLOGAN

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.


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