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ON JUNE 3, Auditor General Jaiwaitie Ramdass will know if she is permitted to pursue her judicial review claim against the Minister of Finance and the Cabinet over a decision to appoint an investigatory team to the $2.6 billion revenue understatement in the Auditor General’s report on the 2023 public financial accounts.
Her judicial review application was filed on May 16. On May 17, Justice Westmin James agreed to deal with the question of leave before determining the issue of an injunction to pause the retired judge David Harris’s lead team temporarily while she challenges the legality of the minister and the Cabinet’s decision to appoint them.
At the hearing, the judge also declined to have the Attorney General participate in the leave stage of the proceedings. James said he did not think he needed to hear from the Attorney General at this point since he was not a party to the proceedings.
James said he will give his ruling on June 3 after which, “I will then decide on the position of the Attorney General.
Objecting to the AG’s participation was Ramdass’ lead attorney Anand Ramlogan, SC, despite submissions by the minister and the Cabinet’s lead attorney, Douglas Mendes, SC, that the Auditor General raised the issue of the payment of her legal fees as a ground in the application under the ground of further unfairness.
“If the AG is coming to do a tag team, it becomes unfair and oppressive when one of our major complaints is that she is going to be facing subjugation while starving her of legal fees.”
Ramlogan also pointed out that since the Cabinet was a respondent, and the AG was a member of the Cabinet, he was already represented by Mendes and his legal team.
“As a member of the cabinet, they are all before you. They can all put in their evidence. But this is an attempt to get a second bite at the cherry.”
He said this after the judge questioned if the AG was willing to give an undertaking to pay the Auditor General’s legal fees on the issue relating to the Harris-led team.
Senior Counsel Russell Martineau, who leads the team for the AG, said he had no instructions on that but his client would want to participate in the proceedings as an interested party if leave was granted.
“We certainly have an interest in the proceedings…”
Mendes also said the minister and the Cabinet were objecting to permission being granted to Ramdass since, he said, the “ case does not meet the threshold standard for leave.”
He added, “Even if it passes the threshold, there is no basis for interim relief.”
Ramdass filed her application for judicial review a day after Finance Minister and acting Prime Minister Colm Imbert said there would be no cancellation of the investigation headed by retired judge David Harris.
Ramdass is seeking several declarations relating to the appointment of the Harris team. It also seeks to have the decision quashed but in the interim, she wants an injunction restraining the Harris team from investigating anything related to the audit of the 2023 public accounts.
Ramdass contends the appointment of the Harris team contravened the independence of the Auditor General or section 136 of the Constitution. This has been denied by the minister’s legal team who say the Harris team was not investigating if she should be removed from office nor will the team’s findings be binding on the President.
In her application, Ramdass said it was important that the investigation be conducted fairly and lawfully.
“If it is tainted, that very bias and unfairness will, in turn, taint, infect and vitiate any consequential decision that may be taken by the relevant authorities and office holders.
“The report will be the fruit of a poisoned tree and any reliance on same will therefore be legally misplaced.”
It also added, “The audit of the country’s national accounts is governed and regulated by the law.
“…The Auditor General does not wish to appear to be avoiding an independent investigation commissioned by the Executive.”
The application maintained that Ramdass “wishes and intends to participate in any lawful investigation because she has nothing to hide,” but did not want to create the impression that she was trying to avoid any probe and wanted to vindicate the position and action taken by her office in the audit and submission of the 2023 public accounts.
In an affidavit, Ramdass said, “ I considered that my office was under attack and my integrity and character was being called into question…Should this investigation be allowed, it has grave implications for the Office of the Auditor General.”
She is also represented by Kent Samlal, Jodie Blackstock, Natasha Bisram and Aasha Ramlal. Appearing with Mendes for the minister and the Cabinet are Simon de La Bastide, Sashi Indarsingh and Jo-Anne Julien.
