DEREK ACHONG

The Privy Coun­cil has dis­missed an ap­peal re­gard­ing Au­di­tor Gen­er­al Jai­wantie Ram­dass's right to pur­sue a law­suit over a Cab­i­net-ap­point­ed probe in­to the 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 the State’s at­tor­neys at the UK Supreme Court in Lon­don.

The Board did not re­quire sub­mis­sions from Ram­dass' lawyers, led by Se­nior Coun­sel Anand Ram­lo­gan, to make its oral de­ci­sion. The judges promised to de­liv­er a writ­ten rul­ing at a lat­er date.

As a re­sult, Ram­dass' case can now pro­ceed to tri­al.

Al­though the probe con­tin­ued dur­ing the ap­peal, the in­ves­tiga­tive com­mit­tee, led by re­tired judge David Har­ris, agreed to pause all mat­ters re­lat­ing to Ram­dass and her of­fice un­til her le­gal chal­lenge is re­solved.

In the fi­nal ap­peal, Im­bert and the Cab­i­net's le­gal team, led by Dou­glas Mendes, SC, ar­gued that the Court of Ap­peal had erred in grant­i­ng Ram­dass leave to pur­sue the case in June.

Ear­li­er that month, Jus­tice West­min James had re­fused leave, rul­ing that Sec­tion 116(6) of the Con­sti­tu­tion, which in­su­lates the Au­di­tor Gen­er­al from ex­ter­nal di­rec­tion or con­trol, did not ap­ply to in­ves­ti­ga­tions such as the Cab­i­net-or­dered probe. He al­so stat­ed that Ram­dass had failed to prove bias on the part of Im­bert, not­ing that Im­bert and his min­istry were al­so un­der in­ves­ti­ga­tion.

Jus­tice Pe­ter Ra­jku­mar, who re­viewed Jus­tice James’ de­ci­sion in the Ap­peal Court, stat­ed that the thresh­old for grant­i­ng leave in such cas­es 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 re­con­sid­ered by an­oth­er High Court judge.

The dis­pute be­tween Ram­dass and the min­istry be­gan in April af­ter the min­istry sought to sub­mit amend­ed pub­lic ac­counts to ex­plain a re­port­ed $2.6 bil­lion un­der­es­ti­ma­tion of rev­enue.

Ram­dass ini­tial­ly re­fused to ac­cept the records, claim­ing she need­ed le­gal ad­vice on whether she could ac­cept them af­ter the statu­to­ry dead­line in Jan­u­ary. She lat­er ac­cept­ed the records and sent au­dit staff to ver­i­fy them.

Ram­dass then sub­mit­ted her orig­i­nal an­nu­al re­port to Par­lia­ment, based on the orig­i­nal records.

In sub­se­quent le­gal cor­re­spon­dence, Ram­dass claimed her au­dit team could not rec­on­cile the amend­ed records with the doc­u­ments they had au­dit­ed. She al­so con­tend­ed that the amend­ed records ap­peared to have been back­dat­ed to the orig­i­nal statu­to­ry dead­line in Jan­u­ary.

Ram­dass al­so raised con­cerns that the dis­crep­an­cy was ini­tial­ly es­ti­mat­ed at $3.4 bil­lion.

Im­bert re­peat­ed­ly de­nied any wrong­do­ing. 

His lawyers ar­gued that af­ter rec­on­cil­i­a­tion, the vari­ance was $2,599,278,188.72, main­ly at­trib­uted to Val­ue Added Tax (VAT), In­di­vid­ual, Busi­ness Levy, and Green Fund Levy con­tri­bu­tions. They al­so claimed that the ap­prox­i­mate $780 mil­lion dif­fer­ence be­tween the ini­tial and fi­nal es­ti­mat­ed vari­ances stemmed from tax re­fund cheques is­sued for the 2022 fi­nan­cial year and cashed in 2023. 

They at­trib­uted the er­ror to a shift from a man­u­al to an elec­tron­ic cheque-clear­ing sys­tem by the Cen­tral Bank. 

They de­nied any back­dat­ing, ex­plain­ing that a doc­u­ment re­lat­ed to the orig­i­nal pub­lic ac­counts was mis­tak­en­ly in­clud­ed in the re­vised doc­u­ments. 

They al­so con­tend­ed that Ram­dass had act­ed il­le­gal­ly by ini­tial­ly re­fus­ing to ac­cept the amend­ed ac­counts, though they de­cid­ed not to take le­gal ac­tion against her for this.

Im­bert even­tu­al­ly agreed to lay the orig­i­nal re­port be­fore Par­lia­ment on May 24, un­der­stand­ing that Ram­dass would is­sue a spe­cial re­port based on the amend­ed records. 

Ram­dass lat­er sub­mit­ted the spe­cial re­port, main­tain­ing sim­i­lar con­cerns as those in her ini­tial re­port.

In pre­sent­ing the spe­cial re­port to Par­lia­ment, Im­bert op­posed com­ments made by Ram­dass in an af­fi­davit, in which she claimed that her abil­i­ty to con­duct a prop­er au­dit was ham­pered when the Cen­tral Bank al­leged­ly blocked her from ac­cess­ing its elec­tron­ic cheque-clear­ing sys­tem.

Ram­dass al­so has a sep­a­rate, pend­ing case con­cern­ing her right to seek in­de­pen­dent le­gal ad­vice and rep­re­sen­ta­tion re­gard­ing these events.