Imbert: No recall of revenue understatement probe

FINANCE Minister and acting prime minister Colm Imbert says there will be no cancellation or recall of an independent team appointed by Cabinet on May 7 to investigate the circumstances which resulted in a $2.6 billion understatement of revenue in the 2023 public financial accounts.

This decision was announced in a signed letter dated May 15 from law firm MG Daly & Partners to Freedom Law Chambers.

The letter, signed by attorney Jo-Anne Julien, was addressed to attorney Aasha Ramlal of the latter law firm.

A similar letter was exchanged between both law firms earlier in the day on a related matter.

In a pre-action protocol letter to Imbert dated May 12, Ramlal called on Imbert to cancel or recall this investigation by 4 pm on May 15, saying it amounted to a breach of the Constitution. Ramlal said any misconduct in this case would have to be dealt with by the Public Service Commission (PSC).

In her May 15 letter to Ramlal, Julien rejected this and other arguments outlined in Ramlal’s May 12 letter to Imbert.

“For the reasons stated in this letter, that contention is devoid of any merit. Section 136 of the Constitution provides for the removal of the Auditor General from office by the President of the Republic on the advice of a tribunal set up by the President under section 136 to enquire into allegations of inability to discharge the functions of office whether arising from infirmity of mind or body or any other cause, or for misbehaviour, either at the initiative of the President or upon a representation by the Prime Minister.”

Julien said it was clear that the relevant parts of section 136 “are limited to prescribing the persons who may make a representation to the President that a tribunal be set up to investigate the question of removing certain officers, including the Auditor General, from office, who may make the decision to set up a tribunal to investigate the question of removing certain officers, including the Auditor General, from office, and who may carry out such an investigation and advise the President.”

She added, “They do not provide that any decision to investigate the action and conduct of the person holding the office of Auditor General in relation to the performance of her constitutional/statutory duties, even those which are not concerned with the removal of the person holding the office of Auditor General from that office, may only be made by the President or a Tribunal set up under section 136.”

Referring to the terms of reference of the investigation team announced by Imbert on May 7, Julien said, “Further, to the extent that the terms of reference may require the investigation team to investigate the conduct of your client, any findings made by the team in that regard will not be binding on the President of the Republic or any tribunal set up under section 136.”

She added that legal precedent with respect to this issue can be found in a Privy Council decision on a case between the Chief Justice and the Law Association in 2018.

Julien said, “In that regard, the investigation team is not in any position to make findings of fact which are in any way binding upon any tribunal set up under section 136 or on the President. To the extent that the investigation team makes any findings with respect to the conduct of the Auditor General, the most that might be done is that such findings might be passed on by the Prime Minister to the President for consideration in deciding whether the question of removing the Auditor General should be investigated.”

She said any organisation or entity, including the media or a non-governmental organisation, may carry out their own investigation and report their findings to the President or Prime Minister.

Julien said there was no merit in Ramlal’s argument that the team was breaching Section 121 of the Constitution with respect to the discipline and possible removal of public officers and the standards of conduct of such officers, which is vested in the PSC.

The team, she continued, was not being asked to do any of these things.

She said the accuracy of public accounts submitted by the comptroller of accounts to the Auditor General and the audit of these accounts by the latter were matters of great importance to the Government and population.

Against this background, Julien said there was merit in the appointment of this team to investigate the circumstances which led to a $2.6 billion understatement in revenue in the 2023 public financial accounts.

Julien said there was no merit in claims that the team is biased or that Imbert was “the main protagonist” in a conflict with Auditor General Jaiwantie Ramdass on the $2.6 billion revenue understatement as Cabinet made the decision to appoint the investigators.

Julien added, “In any event, you have not suggested that any member of the investigation team is affected by bias nor have you suggested that the investigation team is not independent.”

She also rejected Ramlal’s claim that Ramdass would have to stop whatever she was doing and participate in the investigation without the benefit of independent legal advice.

Julien said she was unaware of why the team would not allow Ramdass to give her views on the matters it has been asked to investigate.

She told Ramlal, “Whether your client participates in the investigation in that way and takes independent legal advice in that regard is entirely rip to her.”

The team is led by retired justice David Harris.

Other members of the team include David C Benjamin, a former audit director at the Auditor General’s department and information technology (IT) specialists from Norway.

The team is expected to report to Imbert within two months.

When he announced the appointment of this team on May 7, Imbert said great care had been taken to ensure that no questions would be raised about the independence of this team.