Senior Reporter
derek.achong@guardian.co.tt
Embattled Auditor General Jaiwantie Ramdass has filed her appeal challenging the premature dismissal of her lawsuit challenging a Cabinet-ordered probe sparked by a recent impasse between her office and the Ministry of Finance.
Ramdass’ legal team, led by Senior Counsel Anand Ramlogan of Freedom Law Chambers, filed the appeal less than 24 hours after High Court Judge Westmin James refused their client leave to pursue her judicial review lawsuit over the probe.
In her court filings, obtained by Guardian Media, Ramdass’ lawyers raised 14 grounds on which they claimed Justice James erred in finding that she did not have an arguable case with a realistic prospect of success at an eventual trial. “The decision is contrary to law and against the weight of the evidence,” they said.
Guardian Media understands that shortly after the appeal was filed, Appellate Judge Peter Rajkumar granted an application for the procedural appeal to be deemed fit for an urgent and expedited hearing at the earliest available date. A hearing date had not been set up to late yesterday.
In the 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 on Monday, 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, led by retired High Court Judge David Harris and 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. Justice James’ decision on the preliminary issues meant that Ramdass’ application for an injunction to stop the probe was automatically dismissed as it was decided that he would decide the issue of leave before the injunction application as the latter was dependent on the outcome of the former.
Ramdass is now seeking a temporary stay of the probe pending the determination of the appeal.
The only aspect of Justice James’ ruling that is not being challenged is his order that she does not pay the State’s legal costs despite the dismissal of the case.
His decision was based on his finding that her legal action was understandable in her quest to maintain the independence of her office.
The dispute 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 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 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 before 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. Douglas Mendes, SC, Simon de la Bastide, Jo-Anne Julien and Sashi Indarsingh represented Imbert and the Cabinet.
