Derek Achong

Se­nior Re­porter

derek.achong@guardian.co.tt

The Privy Coun­cil may have to de­cide whether em­bat­tled Au­di­tor Gen­er­al Jai­wantie Ram­dass should be al­lowed to pur­sue a law­suit over a Cab­i­net-ap­point­ed probe in­to the mis­rep­re­sen­ta­tion of rev­enue in the na­tion­al ac­counts. 

Af­ter the Court of Ap­peal up­held Ram­dass’ chal­lenge over a judge’s re­fusal to grant her leave to pur­sue the case last Fri­day, Cab­i­net’s le­gal team sig­nalled their in­ten­tion to ap­peal to the Unit­ed King­dom-based ap­pel­late court. 

Guardian Me­dia now un­der­stands the ap­pli­ca­tion for con­di­tion­al leave is to be heard by the Ap­peal Court at the Hall of Jus­tice, Port-of-Spain, to­mor­row. 

While the probe has been al­lowed to con­tin­ue as Ram­dass pur­sues her case through the courts, the in­ves­tiga­tive com­mit­tee led by re­tired judge David Har­ris has agreed to hold off on all as­pects re­lat­ed to her and her of­fice un­til her le­gal chal­lenge is re­solved.

In her sub­stan­tive law­suit, Ram­dass’ lawyers, led by Anand Ram­lo­gan, SC, are con­tend­ing the in­ves­ti­ga­tion is un­con­sti­tu­tion­al and il­le­gal be­cause nei­ther Fi­nance Min­is­ter Colm Im­bert nor the Cab­i­net have the ju­ris­dic­tion to probe the con­duct of the Au­di­tor Gen­er­al. They al­so claim that Im­bert was bi­ased in ini­ti­at­ing the probe.

De­liv­er­ing a 15-page de­ci­sion ear­li­er this month, Jus­tice West­min 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 al­so stat­ed that Ram­dass failed to prove bias by Im­bert, as he not­ed Im­bert and his min­istry are al­so sub­ject to the probe. 

Jus­tice Ra­jku­mar, who de­liv­ered the pan­el’s re­view of their col­league’s de­ci­sion, al­so stat­ed the thresh­old for grant­i­ng leave in such a case was low. 

In their sub­mis­sions be­fore Jus­tice James and the Ap­peal Court, lawyers for the Cab­i­net 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 the case ap­plied, Ra­jku­mar and his col­leagues not­ed that it could be dis­tin­guished from Ram­dass’ case. 

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 sub­mis­sion dead­line. 

 Ram­dass even­tu­al­ly ac­cept­ed the records and dis­patched au­dit staff to ver­i­fy them. She then sub­mit­ted her orig­i­nal an­nu­al re­port to Par­lia­ment 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 in Jan­u­ary.

Ram­dass al­so took is­sue with the fact 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 checks on the ap­prox­i­mate $780 mil­lion dif­fer­ence be­tween the ini­tial and fi­nal es­ti­mat­ed vari­ances at­trib­uted it to tax re­fund cheques is­sued for the 2022 fi­nan­cial year be­ing cashed in the fi­nan­cial year 2023. The er­ror was at­trib­uted to a switch from a man­u­al to elec­tron­ic cheque-clear­ing sys­tem by the Cen­tral Bank. 

They al­so claimed there was no back­dat­ing be­cause a doc­u­ment re­lat­ed to the orig­i­nal pub­lic ac­counts was in­ad­ver­tent­ly in­clud­ed in the re­vised doc­u­ments. 

Im­bert even­tu­al­ly agreed to lay the orig­i­nal re­port in Par­lia­ment and did so on May 24.