Appeal Court stops Government’s probe team – Don't investigate Auditor General

THE COURT of Appeal has stopped the investigation of the Auditor General by a team handpicked by the government.

On June 21, Justices of Appeal Mark Mohammed, Peter Rajkumar and James Aboud unanimously upheld Auditor General Jaiwantie Ramdass’s appeal of the High Court’s refusal to allow her to challenge the legality of the decision to appoint the team, led by retired judge David Harris.

The judges held that Justice Westmin James erred in refusing Ramdass leave to pursue her judicial review claim on June 3.

Ramdass was granted leave and her lawsuit will be heard by another judge in the High Court. A written ruling is expected to be delivered next week.

Speaking at the Hall of Justice, Port of Spain, Ramdass said she was “relieved” and has trust in the judicial process. In its ruling, the Appeal Court disagreed with James’s assessment of Ramdass’s apparent bias argument.

Ramdass has complained that Finance Minister Colm Imbert’s recommendation to Cabinet to initiate the probe, select the investigation team, set its terms of reference and have it report directly to him, was biased. She also complained that the Harris team was mandated to make findings on her conduct and that Imbert was responsible for their remuneration.

The Appeal Court held she had raised an arguable point.

PROBE INTO OTHER ISSUES

Its ruling effectively stops the Harris team from any investigation involving the Auditor General over the 2023 national accounts until her lawsuit goes to trial.

However, the team can still pursue aspects of the probe on the $2.6 billion understatement in the Auditor General’s report on the 2023 public accounts that do not involve Ramdass and her office.

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

The Appeal Court also made it clear its findings were only on the issue of arguability and not a determination of Ramdass’s challenge. Rajkumar delivered the summary opinion of the court. He said the Law Association case involving the Chief Justice, which the State relied on, was distinguishable from the Auditor General’s challenge, since in that case, the Privy Council did not have to directly address the issue of apparent bias.

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.

The State had suggested the findings in the case directly applied to Ramdass.

Rajkumar said while section 136 of the Consitition did not provide the only mechanism for an investigation into the office of the Auditor General, it was precluded in this case because “it amounts to a statutorily impermissible trespass by the Executive with no statutory or specific constitutional basis.”

He added that matters which affect the performance of the independent office of the Auditor General in the exercise of her duties are constitutionally recognised and insulated by sections 116 and 136 of the Constitution.

However, he said it was not necessary for the Appeal Court, at this stage, to determine that, since all the court had to was determine arguability, for which the threshold was low.

“The trial judge failed to appreciate that while dicta in the LATT case appear to suggest that principles of natural justice, including the rule against bias, did not apply at all to the decision to investigate in that case, even cursory examination of the facts in the instant case demonstrated that it was arguable that they were distinguishable.”

He also pointed out in the LATT case, the association was not a witness to any facts, nor did it have a vested interest in the outcome of the investigation.

“This is unlike the instant case, where the decision-maker was responsible for the ministry and its personnel, which were necessary witnesses and participants in the matter which gave rise to the instant investigation.”

RAMLOGAN: SHE IS ENTITLED TO COSTS

No formal order for a stay was made, since lead attorney for the State Douglas Mendes, SC, said the minister would advise the Harris team to suspend its investigation of those aspects of its probe relating to the Auditor General.

Ramdass’s lead attorney, Anand Ramlogan, SC, said he was “happy” to acept that undertaking by the minister.

The judges also declined an invitation by the State to determine the Auditor General’s substantive complaint.

Ramdass sued the Finance Minister and the Cabinet after Imbert refused her request to stop the investigation. She is also represented by Ganesh Saroop Kent Samlal, Natasha Bisram and Aasha Ramlal.

Also appearing for the minister are Simon de La Bastide, SC, Jerome Rajcoomar, Jo-Anne Julien and Sonnel David-Longe.

No order for costs was made, as the judges invited the parties to submit brief written submissions on the issue.

Ramlogan said his client was entitled to her cost both at the High Court and the Court of Appeal on an indemnity basis, which is intended to compensate a party as fully as feasible for the expense and inconvenience of litigation.

He said Ramdass was forced to take action to defend the independence and integrity of her office, and the Executive provided her with no resources to do so.

But Mendes said Ramdass was in no special position different from anyone bringing a similar challenge and suggested there be costs in the cause, which means the costs of a preliminary hearing will be paid by the the party which ultimately loses the case.

THE HARRIS 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

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

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 matters

g. Findings and recommendations going forward.

IMBERT TO APPEAL

In a brief press release sent at 7.50 pm on Friday June 21, Finance Minister Colm Imbert indicated he will appeal the Appeal Court’s decision and would do so at the Privy Council in London. The UK court is TT’s highest, and final court of appeal.

The release said: Having read the decision of the Honourable Court of Appeal and sought advice from Senior Counsel, the Minister of Finance is of the firm view that the issues and points of law in this matter are of sufficient public interest and importance that an application should be made for this matter to be taken to our highest court, the Privy Council, for final determination, without delay.

Accordingly, the release continued, the Minister of Finance has instructed the Government’s attorneys to immediately apply for leave to appeal the Court of Appeal’s decision to the Judicial Committee of the Privy Council, as an urgent matter.

Editor's note: This is an update to an earlier story published online which can be read below:

The Court of Appeal has stopped the investigation of the Auditor General by a team handpicked by the government.

On June 21, Justices of Appeal Mark Mohammed, Peter Rajkumar and James Aboud unanimously upheld Auditor General Jaiwantie Ramdass’s appeal of the High Court’s refusal to permit her to challenge the lawfulness of the decision to appoint the team, led by retired judge David Harris.

The judges held Justice Westmin James erred in refusing Ramdass leave to pursue her judicial review claim on June 3.

Ramdass was granted leave and her lawsuit will be heard by another judge in the High Court.

A written ruling is expected to be delivered next week.

The Appeal Court’s ruling effectively stops the tam led by retired judge David Harris from any investigation involving the Auditor General over the 2023 national accounts until her lawsuit goes to trial.

However, the Harris team can still pursue aspects of the probe on the $2.6 billion understatement in the Auditor General's report on the 2023 public accounts that do not involve Ramdass and her office.

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

Ramdass sued the Finance Minister and the Cabinet after Imbert refused her request to stop the investigation.

The dispute between the Auditor General and the Government arose in April after the ministry sought to deliver amended public accounts to explain and rectify the error.

Ramdass initially refused to accept it, as she said 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 said 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 date in January.

The original report was laid on May 24 in the Parliament, which agreed to an extension for a special report on the 2023 public accounts to be completed and submitted by August 31.

On May 7, the Finance Minister announced the Harris team in a press release. The team also includes David Benjamin, a former audit director at the Auditor General’s Department, and specialists in information technology from Norway, since an error in the revenue data was attributed to an electronic cheque-clearing system introduced by the Central Bank.