Court rules on Auditor General appeal Friday

Derek Achong

Senior Reporter

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Auditor General Jaiwantie Ramdass is set to learn the fate of her lawsuit over an ongoing Cabinet-appointed probe into the debacle between her office and the Ministry of Finance on Friday.

After hearing submissions in Ramdass’ appeal over the premature dismissal of her case on Monday, appellate judges Mark Mohammed, Peter Rajkumar, and James Aboud said they needed time to render their judgment.

In a subsequent notice issued yesterday afternoon, the panel indicated that its decision would be provided during an in-person hearing at the Hall of Justice in Port-of-Spain at 9 am on Friday.

If the panel dismisses the appeal and Ramdass does not successfully challenge the outcome before the United Kingdom-based Privy Council, it would mean that the investigative committee headed by retired judge David Harris would be able to complete aspects of their probe related to Ramdass and her office.

The committee had previously agreed that it would miss its July 5 deadline for submitting its final report, as the eventual outcome of the appeal would determine whether their work can include Ramdass as initially envisaged.

In the appeal, Ramdass’ lawyers, led by Anand Ramlogan, SC, are contending that High Court Judge Westmin James erred in finding that Ramdass did not have an arguable case with a realistic prospect of success at an eventual trial. In her substantive lawsuit, Ramdass contended that the investigation is unconstitutional and illegal because neither Finance Minister Colm Imbert nor the Cabinet has the jurisdiction to probe the conduct of the Auditor General.

They also claimed that Imbert was biased in initiating the probe. Delivering a 15-page decision two Mondays ago, 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.

Justice James noted that the investigative team, which includes former audit director David Benjamin, was tasked with investigating several state departments and was not specifically probing Ramdass for a disciplinary offence.

Justice James also stated that Ramdass failed to prove bias by Imbert, as he noted that Imbert and his ministry are also subject to the probe. Presenting submissions on Monday, Ramlogan maintained that the probe infringed on the independence of his client’s office under the Constitution. “It is a prelude to something else,” he said, as he suggested that it may be the precursor for disciplinary action.

In his submissions, Senior Counsel Douglas Mendes, who represented Cabinet, stated that Justice James’ decision could not be faulted. He noted that the decision was based on an established legal precedent in a case brought by Chief Justice Ivor Archie after the Law Association initiated a probe against him several years ago.

In that case, the Privy Council ruled that the association’s probe was lawful, although the Constitution prescribes a specific process for probing and disciplining judges. Mendes suggested that the findings in the case directly applied to Ramdass’.

“You can remove Chief Justice and replace it with Auditor General,” he said.

The dispute between Ramdass and the ministry arose in April after the ministry sought to deliver amended public accounts 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 the 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 by initially refusing to accept the amended accounts. However, they claimed that their client has, for now, 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.

His decision was based on the understanding that Ramdass would issue a special report clarifying her initial report based on the amended records provided.

Ramdass was also represented by Kent Samlal, Natasha Bisram, and Aasha Ramlal. Simon de la Bastide, SC, Jo-Anne Julien, Jerome Rajcoomar, and Sonnel David-Longe are also representing Imbert and the Cabinet.