Appeal Court reserves ruling on Auditor General’s appeal

The content originally appeared on: Trinidad and Tobago Newsday

Auditor General Jaiwantie Ramdass. – Photo courtesy the Auditor General’s Department

AUDITOR General Jaiwantie Ramdass will have to wait a little longer to know if she will be allowed to challenge an investigation into her response relating to the recent impasse between her office and the Ministry of Finance over the 2023 public accounts.

On June 17, Justices of Appeal Mark Mohammed, James Aboud and Peter Rajkumar reserved their ruling in Ramdass’s appeal of a judge’s refusal to grant her leave to challenge the ministry and the Cabinet over the decision to appoint an investigation team.

Although the judges said they would deliberate with urgency, they could not give a definitive date for their decision, saying only that it would not be indefinite.

“It is self-evident this is a matter of considerable public importance,” Mohammed said.

In response to enquiries from the judges on the deadline for the probe, led by retired judge David Harris, Senior Counsel Douglas Mendes said while he had no instructions on the issue of a stay, he would pass on the court’s expectations.

However, he said if the investigative team could not carry out its investigations relating to the Auditor General and her office, then the report “would be delayed anyway.”

Harris’s team was expected to report to the Finance Minister by July 7.

It can continue its investigations into the other aspects surrounding the $2.6 billion understatement in the Auditor General report on the 2023 public accounts that do not involve Ramdass until the Appeal Court gives its decision.

On June 3, Justice Westmin James refused Ramdass leave to pursue her judicial review claim.

This cleared the way for the Harris team to continue its Cabinet-ordered probe. Harris, a retired judge, and former audit director David Benjamin and a third, unnamed member of the team were appointed in early May.

James held the investigation did not amount to an unjustified interference with the independence of the Auditor General’s office.

In submissions on June 17, Ramdass’s attorney Anand Ramlogan, SC, said the “biased investigation” should not be permitted.

He also questioned why one member of the team was yet to be identified.

“A biased investigation cannot be permitted in law.

“This is not about a statutory duty to investigate. The Minister of Finance has no such power. I am not concerned about him investigating the ministry or himself, but the investigation of the Auditor General.”

Ramlogan also raised the issue of bias, saying as an independent office-holder, the Auditor General had come under attack by the minister, who recommended the investigators and determined their pay and terms of reference.

He referred to statements by Finance Minister Colm Imbert and the Attorney General in Parliament on Ramdass’s alleged conduct.

“Why are they (the Harris team) reporting to the minister?

“This case is dangerous, very dangerous. It could be the Auditor General today, tomorrow the DPP and then judges.”

He said there was no law, either statute or the Constitution, that gave the minister general control over the Auditor General.

“If they wanted to investigate and justify it, this is not the way. This is why the judge (Justice James) was wrong. We are in virgin legal territory here.

“The judge should have looked at the totality of the issue to determine if she was treated fairly. This is not an investigation by an independent body. The political directorate has no statutory mandate to look into the conduct of the Auditor General.”

Ramlogan added, “The Minister of Finance has irrevocably compromised this investigation,” and said the Cabinet’s sanction of the probe could not legalise it.

In response, Mendes said the minister did not decide to appoint an investigative team, but only made a recommendation.

“The decision is that of the Cabinet which is under challenge. This case is not about the fairness of the investigation.”

He also said there was also no bias claim against the Harris team.

“It is the decision to appoint the team that is under challenge.”

Mendes also called on the judges not only to determine whether Ramdass should be granted leave but also to make a declaration on the law and whether the Constitution allows such types of investigation, rather than send it back to the judge.

“Why go back to trial? You are in a position to make a pronouncement on that issue of law.”

He also called on the judges to determine Ramlogan’s complaint that the Cabinet was biased when it ordered the investigation.

“The facts are there. There is no reason you cannot decide on that issue now. Say if the decision can or cannot be impugned. Do not send it back to the judge.”

Ramlogan later objected to the Appeal Cour’s adopting this position..

Mendes also said it was a “dangerous proposition” to say an independent office cannot be investigated.

“The Auditor General made allegations of ‘sleight of hand’ and ‘backdating.’ She herself raised concerns. Don’t play mas if you’re afraid of powder.

“The decision to launch an investigation does not determine culpability or vice versa. There is nothing wrong with the minister deciding to find out what happened. He is doing what the Minister of Finance is required to do.”

Mendes also said the Cabinet’s decision to act on the minister’s recommendation did not make it illegal.

“You cannot order an investigation without knowing what needs to be investigated. Let them (the Harris team) investigate what went wrong.”

“It is not disciplinary.”

In her legal challenge, Ramdass and her lawyers are contending the Harrs investigation is unconstitutional and illegal because neither the Finance Minister nor the Cabinet has the jurisdiction to probe the conduct of the Auditor General.

The dispute arose in April after the ministry sought to deliver amended public accounts 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. She eventually accepted the records and dispatched audit staff to verify them.

She then submitted her original annual report, which was based on the original records, to Parliament.

Ramdass is represented by Natasha Bisram, Ganesh Saroop. Kent Samlal and Aasha Ramlal. Also appearing for the State are Simon de La Bastide, SC, Jerome Rajcoomar, Sonnel David-Longe and Jo-Anne Julien.

Terms of reference of the Harris team:

a. What circumstances led to the understatement of revenue in the public accounts for the financial year 2023 and what should be done to avoid a recurrence of same

b. The efficacy of the new electronic cheque clearing system introduced by the Central Bank in February 2023

c. The efforts made by the officials at the Ministry of Finance and its various divisions to correct the understatement of revenue, and to advise the Auditor General of the understatement and provide her with an explanation, clarification and further information on same

d. What was the response of the Auditor General to the efforts of the public officials described at (c) above and what action was taken by the Auditor General in relation to the understatement of revenue in the audit of the public accounts for financial year 2023

e. What are the facts in relation to the allegations and statements made by the Auditor General in her Report on the Public Accounts of TT for the financial year 2023, including the addendum and appendices, with specific reference to the understatement of revenue in the public accounts for the financial year 2023

f. Any other related matter

g. Findings and recommendations going forward.