Statement on the IMF loan judgement and appeal for donations
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/international/radio/program/asia-pacific/singapores-fourbillion-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).
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.
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@example.com:
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
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.