Joshua Seemu­n­gal

Se­nior Mul­ti­me­dia Jour­nal­ist

joshua.seemu­n­gal@guardian.co.tt

At­tor­neys rep­re­sent­ing Au­di­tor Gen­er­al Jai­wantie Ram­dass have is­sued a pre-ac­tion pro­to­col let­ter to Fi­nance Min­is­ter Colm Im­bert, re­tired Jus­tice David Har­ris and David Ben­jamin, call­ing for the in­ves­ti­ga­tion or­dered on May 7 in­to the dis­pute be­tween the Fi­nance Min­istry and Au­di­tor Gen­er­al to be can­celled or re­called. In the let­ter sent by Free­dom Law Cham­bers yes­ter­day morn­ing, act­ing Prime Min­is­ter Im­bert was giv­en un­til 4 pm on Wednes­day to re­spond.

Ac­cord­ing to Ram­dass’ at­tor­neys, the in­ves­ti­ga­tion is un­con­sti­tu­tion­al and il­le­gal be­cause nei­ther the Min­is­ter nor the Cab­i­net has con­sti­tu­tion­al ju­ris­dic­tion and law­ful au­thor­i­ty to in­ves­ti­gate the ac­tion and con­duct of the Au­di­tor Gen­er­al out­side sec­tion 136 of the Con­sti­tu­tion.

“Our client is in­su­lat­ed from po­lit­i­cal in­ter­fer­ence and con­trol to such an ex­tent that the process of in­ves­ti­gat­ing and/or re­mov­ing her from of­fice is the same as that which ap­plies to a Judge of the Supreme Court of Jus­tice. The Terms of Ref­er­ence of this in­ves­ti­ga­tion cross­es the line by tres­pass­ing in­to the sa­cred and con­sti­tu­tion­al­ly pro­tect­ed do­main of the in­de­pen­dent of­fice of the Au­di­tor Gen­er­al,” the let­ter, signed by at­tor­ney Aasha Ram­lal, said.

“In the cir­cum­stances, we call up­on you to can­cel or re­call the in­ves­ti­ga­tion or­dered on 7th May 2024 in­to the per­for­mance of our client’s statu­to­ry and con­sti­tu­tion­al du­ties, fail­ing which we have been in­struct­ed to file a claim for ju­di­cial view chal­leng­ing the va­lid­i­ty and le­gal­i­ty of this in­ves­ti­ga­tion as it re­lates to the con­duct of our client.”

The let­ter said the risk of bias in the Fi­nance Min­is­ter ap­point­ing an in­ves­tiga­tive team is clear and self-ev­i­dent. Ram­lal said a bi­ased in­ves­ti­ga­tion can­not lead to a fair and law­ful re­sult and that the re­port of the in­ves­ti­ga­tion will be the fruit of a poi­soned tree that is li­able to be quashed and de­clared a nul­li­ty.

Ac­cord­ing to Ram­dass’ lawyers, it is on­ly the Pub­lic Ser­vice Com­mis­sion (PSC), un­der Sec­tion 121 of the Con­sti­tu­tion, that has ju­ris­dic­tion over the ap­point­ment, pro­mo­tion, trans­fer and dis­ci­plin­ing of pub­lic ser­vice of­fi­cers. They ar­gued that the in­ves­tiga­tive team ap­point­ed by Im­bert il­le­gal­ly tres­pass­es on the PSC’s ju­ris­dic­tion.

“In the zeal to in­ves­ti­gate the Au­di­tor Gen­er­al, the Terms of Ref­er­ence have clear­ly breached her con­sti­tu­tion­al in­de­pen­dence. The in­ves­ti­ga­tion is nei­ther sanc­tioned nor au­tho­rised by the Con­sti­tu­tion. Our client can on­ly be in­ves­ti­gat­ed for mis­con­duct/and or re­moved from of­fice in ac­cor­dance with the clear pro­vi­sions of the Con­sti­tu­tion which are set out in Sec­tion 136 of the Con­sti­tu­tion.

“These Terms of Ref­er­ence are ul­tra vires, un­con­sti­tu­tion­al and il­le­gal be­cause the con­sti­tu­tion­al pow­er to in­ves­ti­gate un­der Sec­tion 36 pro­hibits an in­ves­ti­ga­tion by the Min­is­ter of Fi­nance which by­pass­es and/or tres­pass­es in­to and/or over­laps with the ex­clu­sive pow­er con­ferred by the con­sti­tu­tion,” the let­ter said.

On May 7, Fi­nance Min­is­ter Im­bert in­di­cat­ed that the Cab­i­net had ap­proved the for­ma­tion of a team to in­ves­ti­gate the un­der­state­ment of rev­enue for the fi­nan­cial year 2023 and re­lat­ed mat­ters.

Re­tired High Court Jus­tice David Har­ris was ap­point­ed to chair the in­ves­tiga­tive team. For­mer au­dit di­rec­tor at the Au­di­tor Gen­er­al’s De­part­ment David Ben­jamin and In­for­ma­tion Tech­nol­o­gy spe­cial­ists from Nor­way are al­so on the team. The time­line for de­liv­er­ing a re­port to the Min­is­ter of Fi­nance is two months.

The Terms of Ref­er­ence for the in­ves­ti­ga­tions were:

• What cir­cum­stances led to the Un­der­state­ment of Rev­enue in the pub­lic ac­counts for the fi­nan­cial year 2023 and what should be done to avoid a re­cur­rence of same;

• The ef­fi­ca­cy of the new Elec­tron­ic Cheque Clear­ing Sys­tem in­tro­duced by the Cen­tral Bank of Trinidad and To­ba­go in Feb­ru­ary 2023

• The ef­forts made by the of­fi­cials at the Min­istry of Fi­nance and its var­i­ous Di­vi­sions to cor­rect the Un­der­state­ment of Rev­enue, and to ad­vise the Au­di­tor Gen­er­al of the Un­der­state­ment and pro­vide her with an ex­pla­na­tion, clar­i­fi­ca­tion and fur­ther in­for­ma­tion on same;

• What was the re­sponse of the Au­di­tor Gen­er­al to the ef­forts of the pub­lic of­fi­cials de­scribed at (c) above and what ac­tion was tak­en by the Au­di­tor Gen­er­al in re­la­tion to the Un­der­state­ment of Rev­enue in the au­dit of the Pub­lic Ac­counts for the fi­nan­cial year 2023

• What are the facts in re­la­tion to the al­le­ga­tion and state­ments made by the Au­di­tor Gen­er­al in her Re­port on the Pub­lic Ac­counts of Trinidad and To­ba­go for the Fi­nan­cial Year 2023, in­clud­ing the Ad­den­dum and Ap­pen­dices, with spe­cif­ic ref­er­ence to the Un­der­state­ment of Rev­enue in the pub­lic ac­counts for the fi­nan­cial year 2023;

• Any oth­er re­lat­ed mat­ters; and

• Find­ings and Rec­om­men­da­tions go­ing for­ward

Fi­nance Min­is­ter Im­bert, At­tor­ney Gen­er­al Regi­nald Ar­mour and Au­di­tor Gen­er­al Ram­dass are in­volved in an on­go­ing le­gal dis­pute over the Au­di­tor Gen­er­al’s 2023 re­port on the pub­lic ac­counts. Gov­ern­ment has ac­cused the Au­di­tor Gen­er­al of fail­ing to con­sid­er doc­u­ments re­lat­ed to a $2.6 bil­lion ma­te­r­i­al mis­state­ment (de­tect­ed on March 25) in her sub­mit­ted au­dit, re­sult­ing in Gov­ern­ment hav­ing to seek a four-month ex­ten­sion to re-sub­mit a re­port.

Im­bert stat­ed in Par­lia­ment that the Au­di­tor Gen­er­al asked for the ex­ten­sion. At­tor­ney Gen­er­al Regi­nald Ar­mour is al­so on record in the Par­lia­ment stat­ing that Gov­ern­ment in­for­ma­tion sug­gest­ed that Ram­dass did not con­sid­er the doc­u­ments sub­mit­ted by the Fi­nance Min­istry about the ma­te­r­i­al mis­state­ment. How­ev­er, the Au­di­tor Gen­er­al sub­se­quent­ly de­nied seek­ing an ex­ten­sion, stat­ing in a le­gal af­fi­davit that she did, de­spite eth­i­cal/le­gal con­cerns and af­ter feel­ing po­lit­i­cal pres­sure, ap­point a team to au­dit the doc­u­ments re­lat­ed to the ma­te­r­i­al mis­state­ment in her sub­mit­ted au­dit. She sub­mit­ted the au­dit on April 24 with a dis­claimer.

“I was un­able to ob­tain suf­fi­cient ap­pro­pri­ate au­dit ev­i­dence to form an opin­ion on whether all rev­enue has been ful­ly ac­count­ed for and in­clud­ed in the pub­lic ac­counts. I was un­able to de­ter­mine whether any ad­di­tion­al ad­just­ments might have been found nec­es­sary con­cern­ing record­ed or un­record­ed rev­enue. As a re­sult, the com­plete­ness and ac­cu­ra­cy of ac­tu­al rev­enue could not be as­cer­tained.

“Au­dit pro­ce­dures were hin­dered as sup­port­ing doc­u­ments were not pro­vid­ed to ver­i­fy pay­ments. As a con­se­quence, ex­pen­di­ture of $1 bil­lion could not be ver­i­fied,” the dis­claimer stat­ed.

Ram­dass has tak­en civ­il ac­tion against both Im­bert and AG Ar­mour, urg­ing them to set the record straight about her con­duct in re­la­tion to the re­port on the pub­lic ac­counts.

Ac­cord­ing to the Au­di­tor Gen­er­al in her af­fi­davit, the pur­pose of the Au­di­tor Gen­er­al’s re­port is to en­sure there is trans­paren­cy, ac­count­abil­i­ty and good gov­er­nance; that the Gov­ern­ment is act­ing in a trans­par­ent, eth­i­cal and law­ful man­ner; and that fi­nan­cial re­port­ing and ac­count­ing sys­tems are in place to re­flect the gov­ern­ment’s fi­nan­cial per­for­mance.

She added that the coun­try’s in­ter­na­tion­al rep­u­ta­tion could be ad­verse­ly af­fect­ed by the un­rea­son­able de­lay in sub­mit­ting the Au­di­tor Gen­er­al’s re­port.