The Cab­i­net has been grant­ed con­di­tion­al leave to pur­sue a fi­nal ap­peal over a law­suit brought by Au­di­tor Gen­er­al Jai­wantie Ram­dass over an on­go­ing probe in­to the han­dling of an er­ror in mis­rep­re­sent­ing rev­enue in the na­tion­al ac­counts.

Ap­pel­late Judges Mark Mo­hammed, Pe­ter Ra­jku­mar, and Maria Wil­son grant­ed per­mis­sion to pur­sue the ap­peal be­fore the Unit­ed King­dom-based Privy Coun­cil, dur­ing a hear­ing at the Hall of Jus­tice in Port-of-Spain yes­ter­day.

The leave ap­pli­ca­tion was not op­posed by Ram­dass’ le­gal team led by Se­nior Coun­sel Anand Ram­lo­gan.

Dur­ing the hear­ing, the ap­peal pan­el grant­ed a stay of the probe in re­la­tion to Ram­dass and her of­fice pend­ing the out­come of the fi­nal ap­peal.

When the Ap­peal Court up­held Ram­dass’ ap­peal over the pre­ma­ture dis­missal of her law­suit, last Fri­day, Dou­glas Mendes, SC, who led the le­gal team for the Cab­i­net, in­di­cat­ed that Fi­nance Min­is­ter Colm Im­bert would in­form the in­ves­tiga­tive com­mit­tee, led by re­tired judge David Har­ris, to put on hold parts of its probe in re­la­tion to Ram­dass.

The ap­peal pan­el not­ed that the com­mit­tee could con­tin­ue all oth­er parts of their terms of ref­er­ence.

In de­cid­ing the ap­peal last week, the judges ruled that their col­league Jus­tice West­min James was wrong to have re­fused her leave to pur­sue her ju­di­cial re­view case over the probe, a few weeks ago.

In her sub­stan­tive law­suit, Ram­dass’ lawyers con­tend­ed that the in­ves­ti­ga­tion was un­con­sti­tu­tion­al and il­le­gal be­cause nei­ther Im­bert nor the Cab­i­net had 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, ear­li­er this month, 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 as he not­ed that Im­bert and his min­istry were al­so sub­ject to the probe.

Jus­tice Ra­jku­mar, who de­liv­ered the pan­el’s re­view of their col­league’s de­ci­sion, stat­ed that the thresh­old for grant­i­ng leave in such a case was low.

“Leave will there­fore be grant­ed be­cause as a mat­ter of law, the low ar­gua­bil­i­ty thresh­old has been at­tained,” he said, as he and his col­leagues re­mit­ted the case to be con­sid­ered by an­oth­er High Court Judge.

In their sub­mis­sions be­fore Jus­tice James and the Ap­peal Court, lawyers for the Cab­i­net sought to re­ly 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, to prove that the probe was not un­con­sti­tu­tion­al as al­leged.

In that case, the Privy Coun­cil ruled that the as­so­ci­a­tion’s probe was law­ful al­though the Con­sti­tu­tion pre­scribed a spe­cif­ic process for prob­ing and dis­ci­plin­ing judges in­clud­ing the CJ.

While Jus­tice James thought the case ap­plied, Ra­jku­mar and his col­leagues not­ed that it could be dis­tin­guished from Ram­dass’ case.

“That is be­cause the Law As­so­ci­a­tion in that case was not a wit­ness to any facts, nor a par­tic­i­pant in any of the mat­ters, which it was in­ves­ti­gat­ing nor had a vest­ed in­ter­est in the out­come of the in­ves­ti­ga­tion,” he said.

The dis­pute be­tween Ram­dass and the min­istry arose in April af­ter the min­istry sought to de­liv­er amend­ed pub­lic ac­counts, which sought to ex­plain a re­port­ed $2.6 bil­lion un­der­es­ti­ma­tion in rev­enue.

Ram­dass ini­tial­ly re­fused re­ceipt as she claimed 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.

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 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.

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.