An­na-Lisa Paul

Se­nior Re­porter

an­na-lisa.Paul@guardian.co.tt

Thurs­day’s rul­ing by the Privy Coun­cil al­low­ing em­bat­tled Au­di­tor Gen­er­al Jai­wantie Ram­dass to pur­sue a case over a Cab­i­net-ap­point­ed probe in­to the han­dling of a mis­rep­re­sen­ta­tion of rev­enue in the na­tion­al ac­counts is both “an em­bar­rass­ment and a con­dem­na­tion” for the State.

This was the opin­ion of Se­nior Coun­sel Is­rael Khan, who yes­ter­day called on Fi­nance Min­is­ter Colm Im­bert to ten­der his res­ig­na­tion over the de­ba­cle, which he said con­tin­ued to be a waste of tax­pay­ers’ dol­lars.

Weigh­ing in on the on­go­ing mat­ter yes­ter­day, Khan told Guardian Me­dia, “I think he should ten­der his res­ig­na­tion.” Con­firm­ing it was Im­bert he was in fact pin­point­ing, Khan em­phat­i­cal­ly replied, “Yes! Yes! The Min­is­ter of Fi­nance and the AG al­so.”

He went on to clar­i­fy that the role of the AG was to “save tax­pay­ers’ mon­ey and ad­vise the Gov­ern­ment in re­la­tion to lit­i­ga­tion, and this is an ob­vi­ous­ly wrong ap­pli­ca­tion that they were mak­ing that the Privy Coun­cil crit­i­cised them se­vere­ly.”

Khan said this meant, “The AG has re­ceived a crit­i­cism al­so.”

He said if it was con­firmed that Regi­nald Ar­mour had ad­vised the State to pur­sue this mat­ter, then he too should re­sign.

The se­nior at­tor­ney point­ed out that it would be in­ter­est­ing to know how much the State’s at­tor­neys had been paid in this mat­ter.

Khan added that the Privy Coun­cil does “not go out of their way to crit­i­cise peo­ple like that,” and its “qua­si-po­lit­i­cal state­ment ... why is the Min­is­ter of Fi­nance not be­ing in­ves­ti­gat­ed is a con­dem­na­tion of this Gov­ern­ment and the At­tor­ney Gen­er­al.”

Privy Coun­cil’s rul­ing an im­por­tant de­ci­sion–Lal­la

De­scrib­ing the Privy Coun­cil’s rul­ing as an im­por­tant de­ci­sion, at­tor­ney Om Lal­la yes­ter­day said, “It goes to­wards en­forc­ing the in­de­pen­dence of the of­fice of the Au­di­tor Gen­er­al.”

Re­flect­ing on the cir­cum­stances of the mat­ter, Lal­la said, “The law pro­vides for the Au­di­tor Gen­er­al to be an in­de­pen­dent of­fi­cer, and the Con­sti­tu­tion pro­vides that there ought to be no in­ter­fer­ence.” He said in Ram­dass’s mat­ter, “The per­ceived in­ter­fer­ence by the Min­is­ter of Fi­nance raised grave con­cern.” 

Ad­dress­ing the pub­lic vil­i­fi­ca­tion of Ram­dass thus far, he em­pha­sised that this was not a fi­nal de­ci­sion, but rather “a pre­lim­i­nary rul­ing that al­lows her to move for­ward with her ju­di­cial re­view ac­tion.”

He un­der­scored that “it sends a very im­por­tant sig­nal that she should be al­lowed to have her case heard and that the State has no mer­it cause they lost to the Court of Ap­peal and the Privy Coun­cil.”

Lal­la said in­de­pen­dent of­fices need­ed to re­main as such and that any in­ter­fer­ence “should be ag­gres­sive­ly chal­lenged.” In this case, he said the coun­try should have wel­comed the thor­ough au­dit by Ram­dass as to the fi­nan­cial dis­crep­an­cies un­cov­ered, in­stead of chastis­ing and vil­i­fy­ing her. Lal­la said it was dis­ap­point­ing that the State had cho­sen to in­vest time and mon­ey to go all the way to the Privy Coun­cil to prove a point which the Court of Ap­peal had been very clear about.

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

In the ap­peal, at­tor­neys for Im­bert and the Cab­i­net con­tend­ed 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 de­liv­ered the Ap­peal Court’s re­view of Jus­tice James’ de­ci­sion that the thresh­old for grant­i­ng leave in such a case was low, be­fore he and his col­leagues re­mit­ted the case to be con­sid­ered by an­oth­er High Court Judge.

Mar­vin Gon­za­les, who is act­ing as AG in the ab­sence of Ar­mour, who is abroad, said, “I don’t think it will be ap­pro­pri­ate for me to com­ment. The sub­stan­tive AG may com­ment if he so choos­es.”

The dis­pute be­tween Ram­dass and the min­istry

The dis­pute be­tween Ram­dass and the min­istry arose in April af­ter the min­istry sought to de­liv­er amend­ed pub­lic ac­counts, which re­port­ed­ly ex­plained a $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 while 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 were at­trib­uted 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.

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, 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.