Derek Achong

Se­nior Re­porter

derek.achong@guardian.co.tt

Em­bat­tled Au­di­tor Gen­er­al Jai­wantie Ram­dass will have to wait sev­er­al weeks be­fore she learns whether she will re­ceive an in­junc­tion halt­ing a probe in­to a re­cent au­dit­ing er­ror that led to an im­passe be­tween her of­fice and the Min­istry of Fi­nance.

Dur­ing a vir­tu­al hear­ing of her pro­posed ju­di­cial re­view case yes­ter­day, it was de­cid­ed that Jus­tice West­min James would on­ly con­sid­er her re­lat­ed in­junc­tion ap­pli­ca­tion af­ter he de­cides whether she should be grant­ed leave to pur­sue her sub­stan­tive case on June 3.

In the event Jus­tice James finds she has not pre­sent­ed an ar­guable case with a re­al­is­tic prospect of suc­cess at an even­tu­al tri­al, in al­most two weeks’ time, there will be no need to con­sid­er the in­junc­tion.

Un­til both is­sues are de­ter­mined by Jus­tice James, re­tired High Court Judge David Har­ris and for­mer au­dit di­rec­tor David Ben­jamin can con­tin­ue their Cab­i­net-or­dered probe in­to the mat­ter, for which they were giv­en two months to com­plete when ap­point­ed last Tues­day.

Dur­ing the hear­ing, Dou­glas Mendes, SC, who led the le­gal team for Fi­nance Min­is­ter Colm Im­bert and the Cab­i­net, claimed Ram­dass’ lawyers, led by Anand Ram­lo­gan, SC, had failed to es­tab­lish an ar­guable case.

“The case does not meet the thresh­old stan­dard for leave to be grant­ed. Even if it were to sneak by the stan­dard, it does not war­rant the in­ter­im re­lief sought,” Mendes said.

Rus­sell Mar­tineau, SC, who led the team for At­tor­ney Gen­er­al Regi­nald Ar­mour, asked for his client to be joined in the case as an in­ter­est­ed par­ty, as al­le­ga­tions were made re­gard­ing state­ments he made in Par­lia­ment.

While Ram­lo­gan did not ini­tial­ly op­pose the po­si­tion, he ques­tioned whether Ar­mour’s in­volve­ment in the case was nec­es­sary at a pre­lim­i­nary stage, as his po­si­tion on the law­suit mir­rored that of Im­bert and the Cab­i­net, of which he is a se­nior mem­ber. He sug­gest­ed that the ear­ly in­volve­ment was an at­tempt to “sub­ju­gate” Ram­dass by mak­ing her re­spond to two sets of le­gal sub­mis­sions and pos­si­bly in­cur dou­ble the le­gal costs for the pro­posed law­suit.

“There is over 200 years com­bined le­gal ex­pe­ri­ence on the oth­er side,” Ram­lo­gan said.

Ramolo­gan en­quired whether Ar­mour was will­ing to pay her po­ten­tial le­gal costs for the law­suit and the probe, which is the sub­ject of a sep­a­rate con­sti­tu­tion­al law­suit filed be­fore the case on the le­gal­i­ty of the probe and has al­so been as­signed to Jus­tice James.

Mar­tineau said he could not re­spond to the re­quest as he re­ceived no in­struc­tions on the is­sue.

At the end of the hear­ing, Jus­tice James opt­ed to ex­clude Ar­mour from mak­ing sub­mis­sions un­til, if and when he weighs in on the in­junc­tion.

Ram­dass filed the law­suit af­ter Im­bert re­fused her re­quest to stop the probe.

In the sub­stan­tive case, her lawyers are con­tend­ing that the in­ves­ti­ga­tion is un­con­sti­tu­tion­al and il­le­gal be­cause nei­ther the Fi­nance Min­is­ter nor the Cab­i­net has the ju­ris­dic­tion to probe the con­duct of the Au­di­tor Gen­er­al. They claim that she does not want to avoid the probe but is on­ly will­ing to par­tic­i­pate if it is deemed law­ful.

Ad­dress­ing the post-Cab­i­net press brief­ing on Thurs­day, Im­bert, who is act­ing as prime min­is­ter while Prime Min­is­ter Dr Kei­th Row­ley is on an over­seas trip, not­ed the in­ves­ti­ga­tion’s aim was to un­earth what caused an er­ror that re­sult­ed in a $2.6 bil­lion un­der­es­ti­ma­tion of rev­enue by his min­istry, which led to the im­passe with Ram­dass’ of­fice and sub­se­quent de­vel­op­ments, and not dis­ci­pli­nary ac­tion against Ram­dass as con­tend­ed.

The dis­pute arose last month af­ter the min­istry sought to de­liv­er amend­ed pub­lic ac­counts which sought to ex­plain and rec­ti­fy the er­ror.

Ram­dass ini­tial­ly re­fused re­ceipt, as she claimed she need­ed le­gal ad­vice on whether she could ac­cept them af­ter the 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 the amend­ed records ap­peared to be back­dat­ed to the orig­i­nal statu­to­ry dead­line date in Jan­u­ary. Ram­dass al­so took is­sue with the fact that the dis­crep­an­cy was ini­tial­ly es­ti­mat­ed at $3.4 bil­lion.

Im­bert has 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.

Lawyers al­so claimed there was no back­dat­ing, as they not­ed 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 their client has, for now, de­cid­ed against tak­ing le­gal ac­tion against Ram­dass for this.

Im­bert has stat­ed that he will lay Ram­dass’ ini­tial re­port in Par­lia­ment with­in the 30-day lim­it from the date of sub­mis­sion of April 24, based on the un­der­stand­ing that she is­sues a spe­cial re­port clar­i­fy­ing her ini­tial re­port based on the amend­ed records pro­vid­ed.

Ram­dass is al­so be­ing rep­re­sent­ed by Kent Sam­lal, Natasha Bis­ram and Aasha Ram­lal. Si­mon de la Bastide, Jo-Anne Julien and Sashi In­dars­ingh rep­re­sent­ed Im­bert and the Cab­i­net. Ar­mour was al­so rep­re­sent­ed by Vanes­sa Gopaul.