PORT OF SPAIN, Trinidad – Attorneys representing the Auditor General, Jaiwantie Ramdass, has given Finance Minister Colm Imbert until Wednesday to cancel or recall a team that has been appointed to investigate the understatement of Trinidad and Tobago government’s revenue for the financial year 2023.
Auditor General, Jaiwantie RamdassThe Freedom law Chambers, headed by former attorney general, Anand Ramlogan, has sent a pre-action protocol letter to Imbert, who is acting Prime Minister, giving him until 4.00 pm (local time) to cancel or recall the investigation headed by retired High Court judge, Justice David Harris.
Last week, a statement from the Ministry of Finance Tuesday said Cabinet had given the green light for the probe and that the investigation team will also include David C. Benjamin, a former Audit Director at the Auditor General’s Department, and specialists in Information Technology.
The team will be requested to report to the Minister of Finance within two months.
In the pre-action protocol letter, a copy of which has been sent to the members of the investigating team, the lawyers representing Ramdass, said 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 TT$3.4 billion (One TT dollar=US$0.16 cents) and subsequently TT$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 stated, adding that by appointing an investigative team, the minister “has usurped the constitutional role and function of the independent PSC.”
The lawyers maintain that this was a breach of section 121 and an “impermissible intrusion into the constitutional remit of the PSC,” adding “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…,” the letter noted, adding that 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, the second pre-action protocol document to be sent on behalf of the Auditor General since the matter became public.
The lawyers also contend that 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,” the letter said, adding that 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.”
According to the government statement last Tuesday announcing the investigation, the Terms of reference fo the Investigating Team will include “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” as well as the efficacy of the new Electronic Cheque Clearing System introduced by the Central Bank of Trinidad and Tobago in February 2023
The team will also examine 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.
The team will also examine what was the response of the Auditor General to the efforts of the public officials 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;
“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.”
