DEREK ACHONG

Se­nior Re­porter

derek.achong@guardian.co.tt

Em­bat­tled Au­di­tor Gen­er­al Jai­wantie Ram­dass will have to ap­proach the Court of Ap­peal if she wish­es to con­tin­ue her chal­lenge over an on­go­ing probe in­to a re­cent im­passe be­tween her and the Min­is­ter of Fi­nance. 

De­liv­er­ing a de­ci­sion, yes­ter­day af­ter­noon, High Court Judge West­min James re­fused Ram­dass leave to pur­sue her ju­di­cial re­view law­suit over the probe. 

His de­ci­sion means that Ram­dass’ cor­re­spond­ing ap­pli­ca­tion for an in­junc­tion to stop the probe pend­ing the out­come of the case was au­to­mat­i­cal­ly dis­missed as dur­ing a hear­ing, last month, it was de­cid­ed that he would de­cide the is­sue of leave be­fore the in­junc­tion ap­pli­ca­tion as the lat­ter was de­pen­dent on the out­come in the for­mer. 

In his 15-page de­ci­sion, Jus­tice James con­sid­ered whether Ram­dass had raised an ar­guable case with a re­al­is­tic prospect of suc­cess. 

Her lawyers, led by Se­nior Coun­sel Anand Ram­lo­gan of Free­dom Law Cham­bers, 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. 

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 said: “It would al­so in­su­late of­fice hold­ers from any in­ves­ti­ga­tion of their ac­tions which in­cludes un­law­ful ac­tions.

“This would al­so re­sult in an ab­sur­di­ty that en­ti­ties like the me­dia, are able to in­ves­ti­gate the ac­tions of a pub­lic of­fi­cial like the Ap­pli­cant and not the Ex­ec­u­tive, the branch of the State to which the of­fice hold­er be­longs,” he added. 

Jus­tice James not­ed that the in­ves­tiga­tive team, of 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. 

He al­so not­ed that the probe was in­tend­ed to as­sist Im­bert and the Cab­i­net in draft­ing pol­i­cy. 

“The re­mit of the in­ves­tiga­tive team is a broad­er in­ves­ti­ga­tion in­volv­ing oth­er stake­hold­ers in­clud­ing the Cen­tral Bank of T&T, and the Min­istry of Fi­nance and a fact find­ing ex­er­cise not telling the Ap­pli­cant what to do or ex­ert con­trol over her and her of­fice,” Jus­tice James said. 

He al­so point­ed out that the probe would help pre­vent sim­i­lar er­rors to the one that sparked the im­passe. 

“The Ap­pli­cant would al­so want those pub­lic ser­vants and pub­lic of­fi­cials to eval­u­ate their process­es and make the rel­e­vant changes,” he said. 

Jus­tice James al­so stat­ed that Ram­dass failed to prove bias by Im­bert. 

“While the min­is­ter may have made rec­om­men­da­tions of the in­di­vid­u­als and pro­posed the terms and re­spon­si­bil­i­ties for same, there is no ev­i­dence that the min­is­ter nor the Cab­i­net pre-de­ter­mined the mat­ter; rather, they are seek­ing the in­ves­ti­ga­tion to de­ter­mine the facts and ad­vise them­selves,” he said.

Jus­tice James not­ed that Im­bert and his min­istry are al­so sub­ject to the probe. 

“I would note the Ap­pli­cant like the First Re­spon­dent (Im­bert) has made pre­lim­i­nary de­ter­mi­na­tions and made state­ments and con­clu­sions about oth­er mem­bers of the Ex­ec­u­tive with­out the same pro­ce­dur­al fair­ness that she is seek­ing,” Jus­tice James said. 

De­spite his find­ing on the case, Jus­tice James did not or­der Ram­dass to pay the State’s le­gal costs for the law­suit as he sug­gest­ed the ac­tion tak­en by her was un­der­stand­able. 

“The Ap­pli­cant feels at­tacked and is seek­ing to main­tain the in­de­pen­dence of her of­fice,” he said. 

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

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 at­trib­uted the er­ror to a switch from a man­u­al to an elec­tron­ic cheque-clear­ing sys­tem by the Cen­tral Bank. 

Im­bert even­tu­al­ly laid the orig­i­nal re­port in Par­lia­ment on May 24. 

In a press re­lease, Im­bert an­nounced the out­come as he sought to high­light por­tions of the de­ci­sion in­clud­ing one part in which Jus­tice James sug­gest­ed that the in­ves­ti­ga­tion would be use­ful in help­ing the par­ties de­ter­mine the best way for­ward.

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.