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[h=2]Statement on IMF loan judgement and appeal for donations[/h]
November 13th, 2012 |
Author: Contributions
Kenneth Jeyaretnam
On 28 June 2012 I wrote to Christine Lagarde, Managing Director of the IMF
(http://sonofadud.com/2012/07/01/an-open-letter-to-christine-lagarde-managing-director-of-the-imf/).
In the letter I warned her of the consequences for the future of democracy of
trampling on the constitutional rights of Singaporeans for the sake of
expediency in obtaining commitments to the IMF’s new global firewall.
I then challenged Singapore’s loan to the IMF in the courts as a last resort
after a protracted period when the President and the Minister of Finance refused
to respond to my perfectly reasonable letters.
On 22 October 2012 Justice Tan
issued a judgement in my suit which must be of grave concern not only to all
citizens of Singapore but to citizens fighting for democracy wherever they
happen to live.
Let us not forget that the amount of money being loaned to
the IMF by Singapore is at $5 billion dollars, more than the entire health
budget allocated to all of our citizens for the year 2012 and is substantially
more than three times the per capita contributions from Australia and the UK.
There was no debate on the loan in our virtual one party parliament.
Prior to the judgement, Eugene Tan, a Nominated Member of Parliament, was
quoted on 18 July 2012 in an Australian radio broadcast (http://www.radioaustralia.net.au/in...dollar-loan-to-imf-challenged-in-court/982490)
as saying about the action:
“It would also ensure that Singaporeans who are concerned with certain
decisions on policy of the government, you know, have an avenue by which they
could challenge it, in a process that would be seen as democratic in way that
would engender greater confidence and trust within the whole system of
governance that we have in Singapore”
The learned judge has, in dismissing my application for judicial review, has
effectively closed that avenue. It is a move which prompted a prominent local
legal blogger to write that it was the “the day the constitution died”, (http://article14.blogspot.co.uk/2012/10/the-day-constitution-died-again.html).
Legal Statement
This judgement should be of concern to all citizens of
Singapore.
This is because the Court held that I had no right to bring a constitutional
challenge in respect of an alleged breach by the Government and Monetary
Authority of Singapore of Article 144 of the Constitution in giving a loan to
the IMF without either the Parliamentary or Presidential approval specified in
Article 144.
It is crucial to distinguish the two reasons why my challenge was dismissed.
Most importantly, it was dismissed because I could not show any special damage
flowing from a breach of Article 144. The Court therefore implicitly held that
even if, in its view, I had made out an arguable case it would still have
rejected it.
My case was also dismissed because the words in Article 144 ‘no guarantee
or loan given or raised’ did not mean what they appear to say but, rather,
meant ‘no guarantee given’ or ‘no loan raised’. On that reasoning, if a loan was
given as opposed to being raised this fell outside Article 144 and so such loan
– however precarious, however improvident – did not require the constitutional
protections afforded by Parliamentary or Presidential oversight.
This short summary, which I will now expand upon, explains why I make this
appeal for donations.
No right to challenge the constitutionality of a breach of Article
144
The learned judge did not refer to a clear authority from any court in
Singapore to endorse the proposition that a constitutional change to a provision
of the Constitution that has no relationship with private law rights can only be
challenged if special damage is proved.
If the Court is correct, it means that although Singapore purports to be a
democracy with a constitutional separation of powers, there is in truth no means
by which a citizen can challenge a provision in reliance on a constitutional
provision such as Article 144.
A moment’s reflection suggests that this is unlikely to be correct. Assuming
it to be a requirement that special damage has to be established to bring some
forms of constitutional challenges, it does not follow that special damage must
be proved where breach of a constitutional provision affects all citizens
equally and as a matter solely of public law illegality.
If the Court is correct it matters not how blatant, how transparent or how
deliberate the breach of such a constitutional provision is; the simple and
inescapable consequence is that no citizen may challenge it.
Such a conclusion does not sit easily with a country that, at least in the
eyes of the West, aspires to be thought of as a democracy and I believe that on
this point at least there are good prospects that the Court of Appeal would not
uphold the judgement of the single judge.
Article 144 applies to the giving of a loan
My case was rejected because the court decided to give a purposive
interpretation to the words of Article 144.
However, I believe that a purposive approach reinforces rather than weakens
my argument.
Put shortly, the purpose of Article 144 is to safeguard the citizen against
the creation of substantive liabilities by requiring Parliamentary and
Presidential oversight before such liabilities may be created.
The court held that a loan was a benefit rather than a liability. But this
does not grapple with the fact that many loans may, in substance (and sometimes
in form) constitute a liability.
An IMF loan commitment is akin to a guarantee or a standby letter of credit
that Singapore will lend money to the IMF when it has exhausted its borrowings
from other sources. In this respect, there is no material difference between
this and a bank providing a company with a standby letter of credit that in the
event that it is no longer able to borrow in the short-term credit markets, the
bank will step in and provide funding. This cannot sensibly be distinguished
from a guarantee that is given or a loan that is raised which are undoubtedly
within the scope of Article 144.
Conclusion
In my letter to Christine Lagarde, I said that in a robust democracy a
government does not hide behind technicalities and dispense with the need to
make itself accountable to the people. Unfortunately, by his ruling, the learned
judge has enabled the government to do just that.
A note on the Appeal and Costs
The learned judge also saw fit to dismiss my application with costs awarded
to the AG. As you all know I took this action as a private citizen, an ordinary
Singaporean with CPF savings contributing to the central pool. In this respect
although acting on behalf of all of us in the public interest, I have shouldered
the costs of this action so far entirely from my own pocket. This was only
possible with M. Ravi and his team offering their services Pro Bono. I am now
faced with the AG’s costs as well.
I have been asked whether I plan to appeal. The fact is that even with
continued Pro Bono legal support, I will certainly be unable to fund the costs
of an appeal on my own, however good the grounds. Whether I appeal or not will
depend on the public.
I also need help with the costs of the action so far. I therefore ask all
Singaporeans who are concerned about the erosion of their constitutional rights
and who want to see the government held fully accountable for its actions, to
make a donation.
As this is not a political campaign, non-Singaporeans can also donate money.
No donation is too small, even the price of a Starbucks or a meal in a hawker
centre.
We need to raise a minimum of $ 20,000 to provide security for costs and to
pay our lawyers if we are to launch an appeal.
Payment can be made to the PayPal account in my name, using my email address
[email protected]
:
https://www.paypal.com/sg/webapps/mpp/make-online-payments
Alternative you can send a cheque made out in the name of Kenneth Jeyaretnam
– to the office of Violet Netto:
L F VIOLET NETTO
101 Upper Cross Street
#05-13 People’s Park
Centre
Singapore 058357
Please do not send money directly to the lawyers due to strict regulations
governing legal fees and income.
The account will be closed once the target is reached and should there be any
excess this will be donated to charity.
.
Kenneth Jeyaretnam
* As a blogger, KJ hopes to help imagine a model for a New Asian Nation
to bring about a free and fair future for Singapore. KJ is a Cambridge trained
economist who could be broadly described as from the Keynesian school. He is
also a successful ex-hedge fund manager and a liberal opposition politician who
contested in the 2011 General Election with his party. He is currently the
Secretary-General of The Reform Party. He blogs at
http://sonofadud.com.
.
Kenneth Jeyaretnam
On 28 June 2012 I wrote to Christine Lagarde, Managing Director of the IMF
(http://sonofadud.com/2012/07/01/an-open-letter-to-christine-lagarde-managing-director-of-the-imf/).
In the letter I warned her of the consequences for the future of democracy of
trampling on the constitutional rights of Singaporeans for the sake of
expediency in obtaining commitments to the IMF’s new global firewall.
I then challenged Singapore’s loan to the IMF in the courts as a last resort
after a protracted period when the President and the Minister of Finance refused
to respond to my perfectly reasonable letters.
On 22 October 2012 Justice Tan
issued a judgement in my suit which must be of grave concern not only to all
citizens of Singapore but to citizens fighting for democracy wherever they
happen to live.
Let us not forget that the amount of money being loaned to
the IMF by Singapore is at $5 billion dollars, more than the entire health
budget allocated to all of our citizens for the year 2012 and is substantially
more than three times the per capita contributions from Australia and the UK.
There was no debate on the loan in our virtual one party parliament.
Prior to the judgement, Eugene Tan, a Nominated Member of Parliament, was
quoted on 18 July 2012 in an Australian radio broadcast (http://www.radioaustralia.net.au/in...dollar-loan-to-imf-challenged-in-court/982490)
as saying about the action:
“It would also ensure that Singaporeans who are concerned with certain
decisions on policy of the government, you know, have an avenue by which they
could challenge it, in a process that would be seen as democratic in way that
would engender greater confidence and trust within the whole system of
governance that we have in Singapore”
effectively closed that avenue. It is a move which prompted a prominent local
legal blogger to write that it was the “the day the constitution died”, (http://article14.blogspot.co.uk/2012/10/the-day-constitution-died-again.html).
Legal Statement
This judgement should be of concern to all citizens of
Singapore.
challenge in respect of an alleged breach by the Government and Monetary
Authority of Singapore of Article 144 of the Constitution in giving a loan to
the IMF without either the Parliamentary or Presidential approval specified in
Article 144.
It is crucial to distinguish the two reasons why my challenge was dismissed.
Most importantly, it was dismissed because I could not show any special damage
flowing from a breach of Article 144. The Court therefore implicitly held that
even if, in its view, I had made out an arguable case it would still have
rejected it.
My case was also dismissed because the words in Article 144 ‘no guarantee
or loan given or raised’ did not mean what they appear to say but, rather,
meant ‘no guarantee given’ or ‘no loan raised’. On that reasoning, if a loan was
given as opposed to being raised this fell outside Article 144 and so such loan
– however precarious, however improvident – did not require the constitutional
protections afforded by Parliamentary or Presidential oversight.
This short summary, which I will now expand upon, explains why I make this
appeal for donations.
No right to challenge the constitutionality of a breach of Article
144
The learned judge did not refer to a clear authority from any court in
Singapore to endorse the proposition that a constitutional change to a provision
of the Constitution that has no relationship with private law rights can only be
challenged if special damage is proved.
If the Court is correct, it means that although Singapore purports to be a
democracy with a constitutional separation of powers, there is in truth no means
by which a citizen can challenge a provision in reliance on a constitutional
provision such as Article 144.
A moment’s reflection suggests that this is unlikely to be correct. Assuming
it to be a requirement that special damage has to be established to bring some
forms of constitutional challenges, it does not follow that special damage must
be proved where breach of a constitutional provision affects all citizens
equally and as a matter solely of public law illegality.
If the Court is correct it matters not how blatant, how transparent or how
deliberate the breach of such a constitutional provision is; the simple and
inescapable consequence is that no citizen may challenge it.
Such a conclusion does not sit easily with a country that, at least in the
eyes of the West, aspires to be thought of as a democracy and I believe that on
this point at least there are good prospects that the Court of Appeal would not
uphold the judgement of the single judge.
Article 144 applies to the giving of a loan
My case was rejected because the court decided to give a purposive
interpretation to the words of Article 144.
However, I believe that a purposive approach reinforces rather than weakens
my argument.
Put shortly, the purpose of Article 144 is to safeguard the citizen against
the creation of substantive liabilities by requiring Parliamentary and
Presidential oversight before such liabilities may be created.
The court held that a loan was a benefit rather than a liability. But this
does not grapple with the fact that many loans may, in substance (and sometimes
in form) constitute a liability.
An IMF loan commitment is akin to a guarantee or a standby letter of credit
that Singapore will lend money to the IMF when it has exhausted its borrowings
from other sources. In this respect, there is no material difference between
this and a bank providing a company with a standby letter of credit that in the
event that it is no longer able to borrow in the short-term credit markets, the
bank will step in and provide funding. This cannot sensibly be distinguished
from a guarantee that is given or a loan that is raised which are undoubtedly
within the scope of Article 144.
Conclusion
In my letter to Christine Lagarde, I said that in a robust democracy a
government does not hide behind technicalities and dispense with the need to
make itself accountable to the people. Unfortunately, by his ruling, the learned
judge has enabled the government to do just that.
A note on the Appeal and Costs
The learned judge also saw fit to dismiss my application with costs awarded
to the AG. As you all know I took this action as a private citizen, an ordinary
Singaporean with CPF savings contributing to the central pool. In this respect
although acting on behalf of all of us in the public interest, I have shouldered
the costs of this action so far entirely from my own pocket. This was only
possible with M. Ravi and his team offering their services Pro Bono. I am now
faced with the AG’s costs as well.
I have been asked whether I plan to appeal. The fact is that even with
continued Pro Bono legal support, I will certainly be unable to fund the costs
of an appeal on my own, however good the grounds. Whether I appeal or not will
depend on the public.
I also need help with the costs of the action so far. I therefore ask all
Singaporeans who are concerned about the erosion of their constitutional rights
and who want to see the government held fully accountable for its actions, to
make a donation.
As this is not a political campaign, non-Singaporeans can also donate money.
No donation is too small, even the price of a Starbucks or a meal in a hawker
centre.
We need to raise a minimum of $ 20,000 to provide security for costs and to
pay our lawyers if we are to launch an appeal.
Payment can be made to the PayPal account in my name, using my email address
[email protected]
:
https://www.paypal.com/sg/webapps/mpp/make-online-payments
Alternative you can send a cheque made out in the name of Kenneth Jeyaretnam
– to the office of Violet Netto:
L F VIOLET NETTO
101 Upper Cross Street
#05-13 People’s Park
Centre
Singapore 058357
Please do not send money directly to the lawyers due to strict regulations
governing legal fees and income.
The account will be closed once the target is reached and should there be any
excess this will be donated to charity.
Kenneth Jeyaretnam
* As a blogger, KJ hopes to help imagine a model for a New Asian Nation
to bring about a free and fair future for Singapore. KJ is a Cambridge trained
economist who could be broadly described as from the Keynesian school. He is
also a successful ex-hedge fund manager and a liberal opposition politician who
contested in the 2011 General Election with his party. He is currently the
Secretary-General of The Reform Party. He blogs at
http://sonofadud.com.
.
