Derek Achong

Se­nior Re­porter

derek.achong@guardian.co.tt

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.