The Cab­i­net-ap­point­ed probe in­to an im­passe be­tween Au­di­tor Gen­er­al Jai­wantie Ram­dass and the Min­istry of Fi­nance will have to con­tin­ue with­out her in­volve­ment.

De­liv­er­ing an oral rul­ing at the Hall of Jus­tice in Port-of-Spain yes­ter­day, Ap­pel­late Judges Mark Mo­hammed, Pe­ter Ra­jku­mar and James Aboud up­held Ram­dass’ ap­peal over the pre­ma­ture dis­missal of her ju­di­cial re­view law­suit chal­leng­ing the le­gal­i­ty of the in­ves­ti­ga­tion.

The ap­peal pan­el ruled that High Court Judge West­min James was wrong to have re­fused her leave to pur­sue the case on the ba­sis that she had not raised ar­guable grounds with a re­al­is­tic prospect of suc­cess at an even­tu­al tri­al.

Af­ter the de­ci­sion was de­liv­ered, 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, that the as­pects of the probe deal­ing with Ram­dass and her of­fice had to be put on hold pend­ing the fi­nal de­ter­mi­na­tion of the case.

As­pects of the probe in re­la­tion to the com­mit­tee’s terms of ref­er­ence, which ex­clude Ram­dass and her of­fice, will con­tin­ue.

The un­der­tak­ing means the com­mit­tee will be un­able to meet its dead­line for sub­mit­ting its fi­nal re­port in ear­ly Ju­ly.

Based on Mendes’ un­der­tak­ing, Ram­dass’ lawyer Anand Ram­lo­gan, SC, in­di­cat­ed that a stay of the probe, which Ram­dass ini­tial­ly sought, was no longer re­quired.

How­ev­er, hours af­ter the rul­ing, Im­bert in­di­cat­ed that he in­tend­ed to seek leave to take the mat­ter of the Privy Coun­cil.

In a re­lease, Im­bert said, “Hav­ing read the de­ci­sion of the Ho­n­ourable Court of Ap­peal and sought ad­vice from se­nior coun­sel, the Min­is­ter of Fi­nance is of the firm view that the is­sues and points of law in this mat­ter are of suf­fi­cient pub­lic in­ter­est and im­por­tance that an ap­pli­ca­tion should be made for this mat­ter to be tak­en to our high­est court, the Privy Coun­cil, for fi­nal de­ter­mi­na­tion, with­out de­lay.”

Ac­cord­ing­ly, Im­bert said he had in­struct­ed the Gov­ern­ment’s at­tor­neys to im­me­di­ate­ly ap­ply for leave to ap­peal the Court of Ap­peal’s de­ci­sion to the Ju­di­cial Com­mit­tee of the Privy Coun­cil as an ur­gent mat­ter.

In her sub­stan­tive law­suit, Ram­dass is con­tend­ing that the in­ves­ti­ga­tion is un­con­sti­tu­tion­al and il­le­gal be­cause nei­ther Fi­nance Min­is­ter Colm Im­bert nor the Cab­i­net has the ju­ris­dic­tion to probe the Au­di­tor Gen­er­al’s con­duct. Her lawyers are al­so claim­ing Im­bert was bi­ased in ini­ti­at­ing the probe.

Jus­tice Ra­jku­mar, who de­liv­ered the pan­el’s de­ci­sion, said the thresh­old for grant­i­ng leave in such a case is 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 his sub­mis­sions be­fore Jus­tice James and the Ap­peal Court, Mendes 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.

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, in­clud­ing the CJ.

While Jus­tice James thought that the case ap­plied, Ra­jku­mar and his col­leagues not­ed 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.

“This is un­like the in­stant case where the de­ci­sion mak­er was re­spon­si­ble for the min­istry and its per­son­nel, which were nec­es­sary wit­ness­es and par­tic­i­pants in the mat­ter which gave rise to the in­stant in­ves­ti­ga­tion,” he added.

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 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 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 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.