THE legal challenge advanced by A Partnership for National Unity (APNU) Executive, Mr Carl Greenidge, was heard before Acting Chief Justice Ian Chang yesterday, when Attorney General and Legal Affairs Minister, Mr Anil Nandlall, and Finance Minister Dr. Ashni Singh, filed an affidavit in response.Nandlall charged that the matter is “a public gimmick” that is without merit and represents an abuse and misuse of the High Court.

“This proceeding is simply a public gimmick, it is frivolous, wholly unwarranted and without merit and constitutes an abuse and misuse of the process of the High Court and the Applicant ought to be condemned in costs for this waste of judicial time and energy,” declared the Attorney General.
The challenge related to a loan agreement inked between the Inter-American Development Bank (IDB) and the Government of Guyana (GoG).
In the latter part of February, the IDB approved two loan applications for Guyana to the total value of US$32.16M (Gy$4.4B). One of those loans is aimed at supporting Government’s security programme, and the other is aimed at supporting the country’s environmental initiatives.

WITHOUT MERIT
Greenidge seeks to have proceeds under the loan agreement between the GoG and the IDB paid into the Consolidated Fund, and that those monies may not be withdrawn without the authority of an Appropriations Act. The challenge further seeks a Conservatory Order restraining the Minister of Finance from spending the proceeds of the said loan until the substantive matter is heard and determined.
However, Nandlall pointed out that these monies were deposited in the Consolidated Fund three weeks before the institution of these proceedings – making irrelevant Greenidge’s first call on the court.
Relative to Greenidge’s second call for the monies not to be withdrawn without the authority of an Appropriations Act, the Attorney General said, “It is now trite and settled law that once monies are in the Consolidated Fund they can only be disbursed in accordance with provisions of the Constitution and the Fiscal Management and Accountability Act 2003.”
On his third call for a Conservatory Order restraining the Minister of Finance from spending the proceeds, Nandlall added that this cannot be done unless there is an established violation of Guyana’s laws.
“The High Court has no power or jurisdiction whatsoever to interfere with the Executive’s expenditure of these funds, unless it is established that same is being done in violation of the Constitution or the law,” he said.
SPENDING MECHANISMS
Nandlall added, “As a matter of routine practice, the proceeds of the loan having been paid into the Consolidated Fund, they now form part of the pool of resources that comprise that one Consolidated Fund, indistinguishable from other receipts routinely paid into that Fund including tax and non-tax revenue. In other words, the event of withdrawing the proceeds of this loa

n from the Consolidated Fund is, logically, therefore, indistinguishable from the withdrawal of any other sums that form part of that Consolidated Fund.
“Furthermore, when sums are deposited into the Consolidated Fund (whether the proceeds of policy-based loans, or tax or non-tax revenues collected), they do not sit in the said Fund with a specific earmarked intended future use. Instead, they form part of the general pool of resources that make up that Fund.”
He explained too that there are no requirements in law, or emerging from the terms and conditions of the Loan Contract concerned, that the proceeds of the loan be separately identified when withdrawn from the Consolidated Fund or imposing any restriction whatsoever that the said proceeds when withdrawn be used for any particular earmarked or stipulated purpose
“When sums are withdrawn from the Consolidated Fund, they are drawn from the same general pool of resources that are that Fund, their original source remaining unknown and irrelevant. In other words, in any one month, funds are withdrawn and spent from the Consolidated Fund to meet the operations of Government, without any identification being made of the original source of those Funds,” the Attorney General said.
Nandlall said the provisions imposing restrictions on withdrawals from the Consolidated Fund and expenditure there-from are applicable to the Fund as a whole and cannot be applied to subsets or subparts of the Fund.
“Indeed, the Constitutional and Statutory mechanisms in relation to the expenditure of monies and the drawing rights of the Minister of Finance in the absence of an Appropriation Act are now trite law and will continue to apply until an Appropriation Act comes into force,” he said.
According to him, the High Court will violate the constitutional doctrine of the separation of powers and indeed, if the Court were to grant any orders regarding or restricting the withdrawal of the specific proceeds of this loan, given the inevitable comingled nature and fungible characteristic of any and all sums once placed in the Consolidated Fund.
Greenidge was granted leave to file an Affidavit in Reply to the Affidavit in Answer.
The matter has been adjourned to April 23, 2015.