PORT OF SPAIN, Trinidad, CMC—The Court of Appeal on Monday reserved its judgment in a matter in which the Auditor General, Jaiwantie Ramdass, is seeking to challenge an investigation into an ongoing probe into a recent impasse between her office and the Ministry of Finance.
The three-member Appeal Court reserved their ruling in Ramdass’s appeal of a High Court judge’s refusal to grant her leave to challenge the ministry and the Cabinet over the decision to appoint an investigation team.
The dispute arose in April after the Ministry of Finance 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 the audit staff to verify them.
She then submitted her original annual report, based on the original records, to Parliament.
Finance Minister Colm Imbert announced last month that Justice David Harris had been appointed chair of a team that will investigate the understatement of Trinidad and Tobago government revenue for the financial year 2023.
The Ministry of Finance statement said the Cabinet had given the green light for the probe and that the investigation team will include David C. Benjamin, a former Audit Director at the Auditor General’s Department, and Information Technology specialists.
The team will be requested to report to the Minister of Finance within two months.
Justice Westmin James, in his ruling earlier this month, said that in this case, the finance minister “used a discretionary power to recommend an investigation.”
He noted that the parties could agree “that there was a serious matter of public importance that required investigation and that choice fell within the discretion assigned to him by the Constitution.”
But in their appeal, the lawyers for Ramdass, headed by former attorney general Anand Ramlogan, listed 14 grounds for the appeal, including that the judge erred in finding that the investigation was permissible and that it did not amount to an unjustified and unlawful interference with the constitutional independence of the Office of the Auditor General.
In his submission on Monday, Ramlogan said the “biased investigation” should not be permitted and questioned why one member of the team had 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 said.
On the issue of bias, the former attorney general said as an independent office-holder, the Auditor General had come under attack by the Finance Minister, who recommended the investigators and determined their pay and terms of reference.
“Why are they reporting to the minister? This case is dangerous, very dangerous. It could be the Auditor General today, tomorrow the DPP, and then judges,” Ramlogan said, noting that no law, either statute or the Constitution, 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 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.”
“The Minister of Finance has irrevocably compromised this investigation,” Ramlogan said, adding that the Cabinet’s sanction of the probe could not legalize it.
But Senior Counsel Douglas Mendes said the finance 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 said, noting that there was also no bias claim against the Harris team.
“It is the decision to appoint the team that is under challenge,” Mendes said, urging the Appeal Court to not only 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,” Mendes said, calling on the Appeal Court 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 doubted. Do not send it back to the judge,” Mendes said, adding that it was a “dangerous proposition” to tell an independent office cannot be investigated.
“The Auditor General made allegations of ‘sleight of hand’ and ‘backdating.’ She raised concerns. Don’t play as if you’re afraid of powder.
“The decision to launch an investigation does not determine guilt 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 said, adding that 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 investigate what went wrong. It is not disciplinary.”
While the Court of Appeal indicated that it would deliberate urgently, no date was given for the decision’s delivery.
“It is self-evident this is a matter of considerable public importance,” Justice Mark Mohammed said.
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