Auditor General sends 2nd legal letter to Imbert: ‘End this illegal probe’

The content originally appeared on: Trinidad and Tobago Newsday

Auditor General Jaiwantie Ramdass –

AUDITOR General Jaiwantie Ramdass has initiated a new round of litigation over the public accounts’ imbroglio.

Acting Prime Minister Colm Imbert is now being asked to cancel or recall the investigation into what took place. He has been given until 4 pm on May 15 to do so.

On May 12, attorney Aasha Ramlal of Freedom Law Chambers, which is representing Ramdass, issued a new pre-action protocol letter to Imbert, as acting prime minister and head of the Cabinet, challenging the Cabinet-appointed investigative team to probe the understatement of revenue for the 2023 financial year.

The letter was copied to retired High Court judge David Harris, as chairman, and David Benjamin, the other team member, a retired audit director at the Auditor General’s department.

The investigative team’s appointment was announced by the Finance Ministry on May 7.

Sunday’s letter reminded that the Public Service Commission (PSC), under section 121 of the Constitution, had the sole and exclusive jurisdiction for the “appointment, promotion, transfer and disciplining” of public officers.

The letter said the understatement of the Government’s revenue in the original sum of $3.4 billion (originally) and subsequently $2.9 billion would give rise to a prima facie case of conduct prejudicial to the public service.

“This arguably constitutes misconduct under the Public Service Commission Regulations. As such, it is a matter that falls within the constitutional jurisdiction and remit of the independent PSC.”

The letter said by appointing an investigative team, the minister “has usurped the constitutional role and function of the independent PSC.”

Ramlal maintained this was a breach of section 121 and an “impermissible intrusion into the constitutional remit of the PSC.”

She said, “Public officers in the Ministry of Finance hold a disciplinary jurisdiction of the Public Service Commission, which is specifically authorised to conduct such investigations.

“The Public Service Regulations set out the procedure for conducting disciplinary proceedings and the necessary safeguards…”

Ramlal said to investigate the action and conduct of public officers was an “illegal and unconstitutional trespass.

“The Minister of Finance is also inextricably intertwined and is a main protagonist in this conflict,” the letter said.

Ramlal also noted the “scathing” attacks on Ramdass in both Houses of Parliament, adding that “this investigation is, therefore, nothing more than a not-so-clever attempt” to distance the ministry from the fiasco created.

The letter also referred to statements by the Finance Minister at a post-Cabinet briefing on May 9 when he said the Ori­ginal Statement Declaration and Certification, which was dated January 31, 2024, was “inadvertently” included with the amended public accounts delivered to the Auditor General on April 15, 2024.

Ramlal described this explanation as “half-baked” since there was no mention that it was the Auditor General who, by letter dated April 17, 2024, wrote to the Attorney General to complain about the backdating of the national accounts because the discrepancy raised serious ethical and legal issues.

She also said it was not mentioned that the Auditor General called on the Finance Ministry to submit the correct version of the accounts. These letters were attached to the pre-action letter.

“It was only after these two letters were written by the Auditor General that the Ministry of Finance resubmitted the amended accounts with the correct date of April 16, 2024.”

Ramlal said before this, Ramdass had two sets of public accounts in her possession.

Acting Prime Minister and Finance Minister Colm Imbert –

“It is, therefore, now impossible for the minister to conveniently extricate himself from this scandalous state of affairs by pretending that he is somehow above the fray and can select and appoint an independent team of investigators to investigate the facts and circumstances surrounding the issues that led to this unseemly imbroglio.”

The attorney also took issue with the terms of reference, which she said, “clearly trespass on the constitutional independence of the Auditor General.”

She contended the terms of reference were ambiguous, unclear and imprecise and “are so wide that they amount to and/or can cover an investigation into the action and conduct of the Auditor General about the performance of her constitutional and statutory duties.

“This is ultra vires, unconstitutional and illegal because neither the minister nor the Cabinet has constitutional jurisdiction and lawful authority to investigate the action and conduct of the Auditor General outside the narrow confines of section 136 of the Constitution.

“This investigation team is mandated to report to the Minister of Finance within two months and our client is expected to drop whatever she is doing and participate in this investigation without the benefit of independent legal advice and representation.

“Given the political ramifications and hypersensitivity of this matter, the minister’s attempt to appoint an independent investigation with a team of independent investigators will not withstand legal scrutiny and judicial review.”

Ramlal also warned there was a “real danger and risk of bias” in the appointment of the team.

“A biased investigation cannot lead to a fair and lawful result and the report of this investigation will be the fruit of a poisoned tree that is liable to be quashed and declared a nullity.

“Our client is insulated from political interference and control to such an extent that the process of investigating and/ or removing her from office is the same as that which applies to a judge of the Supreme Court of Justice.

“The terms of reference of this investigation cross the line by trespassing into the sacred and constitutionally protected domain of the independent office of the Auditor General.”

The Harris-led team’s terms of reference

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 of Trinidad and Tobago 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 Trinidad and Tobago 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 matters.

g) Findings and recommendations going forward.