Spelling Out the Implications of the Learned Judge’s Ruling for Our Rights and Why We Cannot Let It Go Unchallenged
For those of you who may have found the legal language of my statement on the IMF loan case judgement difficult to follow, I will spell it out in simpler language as far as possible. You have lost your right to challenge decisions of the government even where it has acted unconstitutionally as long as the violation of your constitutional rights applies to everyone.
A moment’s reflection should suffice to convince you that this cannot be the case. The learned judge has made a spurious distinction between public and private rights. He uses the example, taken from the Court of Appeal’s ruling in the case of Tan Eng Hong, of a law banning a particular race from using public transport and cites this as a case of a personal right applying to a particular section of the community. In that situation the Court of Appeal said that only members of that race would have sufficient standing to sue the government because only their constitutional rights had been violated. However the learned judge is guilty of a logical fallacy. It does not follow from the conclusion that, in cases where only one group’s rights have been violated that group are the only ones who can bring an action, to the much more general rule that therefore where everyone’s rights are affected that no one has the right to sue.
This is quite apart from the fact that it is difficult to draw a line separating the violation of the rights of a particular group from the violation of the rights of the wider community. While in the case of Tan Eng Hong, it was the constitutional rights of the gay community which were violated, it could be argued that the violation of these rights affects all of us as it makes it possible for any group to be singled out in an arbitrary and capricious manner and destroys the basis for rule of law.
The learned judge also found that the government did not act unconstitutionally in not getting Presidential and Parliamentary approval for the IMF loan commitment. However this relied on a technicality that is debatable. One of the definitions of a liability in the accounting literature is a commitment to make a monetary payment to another party in the future which is to be made at a time that is potentially advantageous to the other party. The IMF loan commitment clearly falls under that definition. Thus this judgement has the capacity to render Singapore a laughing stock in the eyes of the financial community. Perhaps when our Minister of Finance chairs another IMF meeting, he might be quizzed on whether he understands the difference between an asset and a liability.
By shutting out any future challenge to the government even when it acts unconstitutionally, this judgement unfortunately plays into the hands of an elite who would do anything to avoid open debate on the issues on a level playing field. Through mechanisms like the GRC system and the other marks of an electoral system that is neither free nor fair, the PAP have marginalized the Opposition and ensured that Parliament is completely ineffective as a check on the Executive. The learned judge quotes Diplock, “they [the departments of central government]are responsible to a court of justice for the lawfulness of what they do, and of that the court is the only judge” only to dismiss this later on.
A future government, whether PAP or Opposition, can take heart from knowing that they can give away our entire reserves without fear of being challenged and that the President has been shown to be unable or unwilling to stop them.
I have pledged an advance of $10,000 towards the security for costs that we need to put up if we are to mount an appeal. This is in addition to the $5,000 I have paid Violet Netto and Co for disbursements and the $3,000-$4,000 for independent non-pro bono legal advice from a London QC. While donations have been encouraging (including $1,000 from Mr. Tan Kin Lian) we are still about $3,500 short of our target. We only have two days left if we are to file notice of appeal! Come on, lets show that we will not allow any further erosion of our rights to go unchallenged!