Last Thursday, the Stabroek News carried an article under the caption “Trinidad AG to Auditor General: I won’t be intimidated by threats”, caught our attention. The statement from the Attorney General of Trinidad and Tobago was in response to a pre-action letter from Auditor General Jaiwantie Ramdass through her attorney. In the letter, the Auditor General stated that if the Attorney General did not respond to her, she would seek a judicial review of his ‘inaction and failure to render a decision to seek declaratory relief with respect to the unfair treatment of [her], breach of her constitutional rights to equality of treatment and protection of the law, a declaration that the independence of her office has been compromised and breached, a declaration that she has been treated unfairly and an order directing the State to pay her reasonable legal costs incurred in connection with this matter’.
The issue at hand is the controversy over the refusal of the Minister of Finance to table the Auditor General’s report on the public accounts for the fiscal year ended 30 September 2023.
Some background information
The Auditor General of the Republic of Trinidad and Tobago is appointed by the President after consultation with the Prime Minister and Leader of the Opposition. He/she is not subject to the direction or control of any other person or authority. The Auditor General is responsible for auditing annually the public accounts of Trinidad and Tobago as well as the accounts of all officers, courts and authorities of the Government, including projects funded partly by International Funding Agencies (where appointed), and the accounts of statutory boards, Tobago House of Assembly, state enterprises, municipal corporations and regional health authorities. The Auditor General carries out three types of audits namely: financial and compliance audits; performance or value-for-money audits; and special audits.
Guyana’s Constitution has similar provisions except that there is no provision for the President to consult with anyone in the appointment of the Auditor General, which is indeed regrettable.
The fiscal year for the Government of Trinidad and Tobago is for the 12-month period ending 30 September. Financial statements are to be submitted to the Auditor General within four months of the close of the year, i.e., by 31 January in the following year.
However, Parliament by resolution may extend the period for submission of these statements.
The Auditor General audits these statements and submits his/her report to the Speaker of the House of Representatives, the President of the Senate, and the Minister of Finance within seven months of the close of the year, i.e., by 30 April of the following year, or such longer period thereafter as Parliament may by resolution appoint. The Auditor General may at any time if it appears to him/her desirable transmit a special report to the Minister for presentation in like manner to Parliament. Such special report may be made on any matter incidental to his powers and duties under this act.
The Minister is required to lay the report of the Auditor General on the table of Parliament within thirty days of its receipt by him/her or, if Parliament is not sitting, within thirty days after the commencement of the next sitting. If the Minister does not do so within the time prescribed timeframe, the Auditor General must forthwith transmit the report to the Speaker of Parliament for presentation to Parliament.
In Guyana, the Auditor General presents his report to the Speaker of the National Assembly for laying in the Assembly, and although there is no specific timeframe for doing so, it is expected that the Speaker will table the report at the next sitting of the Assembly. Prior to the 2001 constitutional amendment, the Auditor General submitted his report to the Minister of Finance for laying in the National Assembly. The first report that was presented to the Speaker was in respect of the year 2000.
Appointment of current Auditor General of Trinidad and Tobago
Ms. Jaiwantie Ramdass was appointed Auditor General of Trinidad and Tobago on 17 November 17, 2023. She joined the Auditor General’s Department in 1994 and rose to the position of Deputy Auditor General in 2019. Ms. Ramdass is a Fellow of the Association of Chartered Certified Accountants (FCCA); Certified Information System Auditor (CISA); and Certified Fraud Examiner (CFE). She is also a holder of a Master of Business Administration (MBA) from Heriot-Watt University, United Kingdom. Ms. Ramdass is therefore qualified and experienced to hold the position of Auditor General, compared to the situation in Guyana where the current Auditor General is not a professionally qualified accountant and only holds a bachelor’s degree from the University of Guyana. This is even though his emoluments and other conditions of service are similar to those of the Chief Justice. One could very well imagine the reaction from the Guyana Bar Association if someone with an LLB degree only is appointed Chief Justice! In this day and age, how can there be an Auditor General who is not a professionally qualified accountant and/or the holder of an advanced degree in the related field?
The retirement age of the Auditor General of Trinidad and Tobago is 65 years of age. This was the same for Guyana’s Auditor General which has since been extended to 67 years to bring it in line with the Judiciary. Ms. Ramdass is the eighth local Auditor General since 1963 when Trinidad and Tobago gained its Independence. This means that the past Auditors General served on average a little of seven years, except for Ms. Jocelyn Thompson who served for 16 years. In Guyana, the current Auditor General, Mr. Sharma, is the third local Auditor General since 1969. The first was the late Patrick Farnum who served 21 years, followed by this columnist who demitted office at age 55 after serving for 14 years. Mr. Sharma has so far served 19 years. We had stated on several occasions that it is undesirable for an Auditor General to hold office for a prolonged period of time, for a variety of reasons which we shall discuss at some other time.
What has happened?
As indicated above, the deadline for the submission of the public accounts of Trinidad and Tobago is 31 January 2024. The Auditor General, through her lawyer, claimed that after the submission was made on this date, the Ministry of Finance discovered a mistake and issued an amended set of statements to correct the mistake but backdated the amendment to 31 January 2024. The Minister of Finance, however, denied that his Ministry backdated the amendment and stated that he is in possession of the documents which show the date of amendment as 16 April 2024. This has resulted in a dispute between the Ministry and the Auditor General.
On 19 April 2024, Attorney General advised the Auditor General to seek independent legal counsel to advise on the matter and gave an assurance that the State would cover reasonable legal fees.
According to media reports, the Auditor General then proceeded to submit her report on the audit of the public accounts on 24 April 2024. In her report, the Auditor General issued a disclaimer of opinion indicating that TT$780.5 million in revenue was not accounted for. However, the Minister of Finance declined to table the report when called upon the Speaker to do so on 26 April 2024, and instead moved a motion to extend the time to submit public accounts to the Auditor General and for the Auditor General to complete her report.
On 28 April 2024, the Auditor General, through her lawyer, wrote to the Minister of Finance requesting him to retract certain statements he made about her in Parliament. Another letter was sent the following day asking the Attorney General to indicate whether the State would cover her legal costs.
The other issues that the Auditor General is challenging include:
The validity of the resolution passed by Parliament purporting to extend the time for the submission of the national accounts and her report in circumstances where she has already submitted her audit report to the Minister of Finance.
Whether the Minister of Finance acted lawfully in refusing to lay the Report of the Auditor General in Parliament when called upon to do so by the Speaker.
The false and misleading statements made in Parliament against her regarding the performance of her official duties.
Whether the ‘cloak of parliamentary privilege could be pierced in the exceptional circumstances of this case’, such that the Attorney General and the Minister of Finance can be sued for defaming the Auditor General.
What options and remedies in law may be open to the Auditor General to have her report laid in Parliament and protect the integrity and independence of her office?
Clarification of the scope and remit of her right under the Constitution and the laws of Trinidad and Tobago.
Meanwhile, the Minister of Finance indicated that an investigation would be launched as to why the Auditor General declined to put into her 2023 report on Trinidad and Tobago’s accounts, amounts totalling TT$2.6 billion which Finance Ministry divisions found in February 2024 were not factored into their statements for 2023. This was due to problems with a new electronic cheque-clearing system used by the Central Bank. According to the Minister, after numerous outreaches to the Auditor General, she agreed to accept the updated statement on 16 April 2024. However, the $2.6 billion was not reflected in her 2023 report.
Analysis and conclusion
If indeed the Auditor General had agreed to accept the amended financial statements prior to the issuance of her report, she should have been based her report on the amended financial statements and not the original submission. Suffice it to state that it is established auditing practice for draft financial statements to be submitted to the external auditors. During the audit, if mistakes and/or omissions are discovered, they are discussed with the auditee, and the necessary amendments made to the financial statements. It really should not be a major issue if the amended set of accounts is given the date when the accounts were amended or the original date of submission. The matter could have been resolved amicably between the Auditor General and the Ministry of Finance.
Additionally, it is normal practice for the external auditors to discuss the draft audit opinion on the financial statements with the auditee, especially where a qualified/modified opinion is proposed. This is to enable the auditee to take the necessary remedial action to avoid the accounts being qualified. It is not clear whether this was done in respect the disclaimer of opinion issued by the Auditor General.
As regards the tabling of a resolution to extend the deadline for to the submission of financial statements and for the Auditor General to present her report, it is indeed unfortunate that this has occurred. At the time of writing, it is unclear whether Parliament has approved of the resolution. Meanwhile, the status of the Auditor General’s report on the audit of the public accounts for year ended 30 September 2023 remains in limbo.
We await the outcome of any possible judicial review of the issues raised by the Auditor General. We, however, do believe that these issues can be settled administratively without recourse to the courts. Perhaps, the Caribbean Organisation of Supreme Audit Institutions (CAROSAI) of which the Auditor General’s Department is a member, can provide guidance to the Auditor General on the way forward.
