15 March 2009

Executive, Legislative, Judiciary, sans The Fourth Estate of Mass Media

Update 2: Get this ... it turns out that Obama is an acronym for Originally Born in Africa to Manage America!

"Born" is used under the purposive approach. Being mindful that we should NOT carry purposive interpretation too far, "born" should be technically "birthright" under the 1948 British Nationality Act and the 1963 Constitution of Kenya! http://www.factcheck.org/askfactcheck/does_barack_obama_have_kenyan_citizenship.html

Update 1: On the right-hand column of this blog, read about the acronym "AIG" and what President Barack Obama said about AIG bonuses in The Tonight Show with Jay Leno on 19 Mar 2009. Read it verbatim in this blog. Compare it with the following summarized version in The Straits Times (21 Mar 2009 edition): "Mr Obama reacted coolly when asked about the AIG controversy on the Jay Leno show, describing it as part of the culture of greed and entitlement on Wall Street that must be checked." After the comparison, I leave it to you to draw your own conclusion!
Why does en bloc law matter?

It matters ... in a civilised society (even if we do not have much of a civil society) ... in our system of parliamentary democracy with separation of powers between the Executive, the Legislative and the Judiciary ... more so in the face of our legacy of single-party parliamentary dominance (currently 82:2) ... especially when our elected representatives of the people are expected to uphold their parliamentary honour of "Dictum meum pactum" ("My word is my bond") ... particularly as we globally suffer today's consequences from yesterday's failure of checks-and-balances at multiple levels (ranging from the regulators to the regulated, from the industry to the market to the end-buyer).

What do others say???? The Intelligentsia/Academia. The Judiciary. The Civil Service. The Legislative. The Executive. The Industry Player (legal profession). What do they say? Let's read on ...
1. THE INTELLIGENTSIA/ACADEMIA. NUS Business School Associate Professor Ter Kah Leng published an article in the Mar 2008 edition of the Singapore Academy of Law Journal entitled "A man's home is [not] his castle - En bloc collective sales in Singapore":
In this insightful commentary, she listed the following as one of the implications of recent developments:

QUOTE [Capitalization emphasis is by The Pariah]:
136 The 2007 Amendments introduced more than 30 amendments after extensive industry and public consultation and feedback. While the 1999 Amendments facilitated en bloc sales, the recent amendments seek to regulate the market more and to “minimise complaints of harassment, unfairness and lack of transparency”. This was reiterated by the LAW MINISTER in the Second Reading of the Amendment Bill 2007 when he said that the NEW LAWS are intended to provide ADDITIONAL SAFEGUARDS RATHER THAN TO FACILITATE EN BLOC SALES. Recent HIGH COURT DECISIONS appear to be AT VARIANCE WITH THIS STATEMENT. WHILE PURPOSIVE STATUTORY CONSTRUCTION IS THE PREFERRED MODERN APPROACH, IT IS TIMELY TO HEED JUDICIAL WARNINGS THAT THIS SHOULD NOT IGNORE THE SCOPE AND INTENT OF THE GOVERNING STATUTORY PROVISION NOR AMOUNT TO A JUDICIAL REWRITING OF LEGISLATION. PURPOSIVE STATUTORY INTERPRETATION SHOULD NOT BE CARRIED TOO FAR.

2. THE JUDICIARY. High Court written judgement dated 3 Mar 2009 for the Regent Court en bloc case heard on 30 Oct 2008:

QUOTE [Capitalization emphasis is by The Pariah]:
21 At the Second Reading of the Bill containing the provisions for collective sales at Singapore Parliamentary Debates, Official Report (31 July 1998), vol 69 at cols 601-607, the Minister of State for Law said: "I had informed this House on 19th November last year that Government would be amending the law to make it easier for en-bloc sales to take place. The current position is that a single owner, for whatever reason, can oppose and thwart the sale. Government has received many appeals and feedback from frustrated owners whose desires to sell their flats or condominiums en-bloc have been so thwarted. As a result, these buildings cannot take advantage of enhanced plot ratios to realise their full development potential, which would have created many more housing units in PRIME 999-year leasehold or freehold AREAS FOR SINGAPOREANS. A SECONDARY BENEFIT is that these developments, especially the older ones, could have been REJUVENATED through the en-bloc process."

It was clear from this speech and others made in Parliament that the MAIN PURPOSE of the provisions relating to collective sale in the Act was to make it easier for collective sales to go through in order to promote BETTER UTILISATION of scarce land resources in Singapore and also URBAN REDEVELOPMENT.

Ugh, since when did a "SECONDARY benefit of rejuvenation" propounded in Parliament become the "MAIN purpose of promoting better utilisation of land and urban redevelopment" in our hallowed halls of justice??? This is but one example of many preceding judgements. As the courts sombrely dish-out obiter dicta and set crushing precedents, the already uphill en bloc legal battles are made even more tortuous when the "purposive statutory interpretation" is "carried too far", as forewarned by Associate Professor Ter Kah Leng in the quote in para 1.

To me, this is evident when a "secondary benefit" becomes the "main purpose". The PRIMARY BENEFIT of "creating more housing units in prime areas for Singaporeans" is all but forgotten. Talk about selective amnesia!!! Nobody invokes this primary benefit of en bloc as part of the purposive approach. Why??? The authorities with whom I have engaged maintain a sheepish silence - probably too embarrassed and/or dumbstruck.

3. THE CIVIL SERVICE (URA/SLA). As mentioned in earlier blog entries, the statistics from the Urban Redevelopment Authority (URA) published in Business Times (27 Mar 2008) showed the percentage of foreigners’ non-landed private residential purchases SHOT UP from 16% in 2000 to 29.1% in 2007 – more than 80% increase in 7 years!
Another chart showed that – within the same 2000-2007 time span – Singaporeans’ share of non-landed private residential purchases consistently DECLINED IN ALL GEOGRAPHIC REGIONS. In contrast, foreigners’ share DOUBLED OR TREBLED in the range of 114%-200%. If PRs are aggregated with foreigners, the NON-Singaporean share also increased substantially from 61% (Rest of Central Region) to 95% (Core Central Region). As the prime/popular residential districts are already built-up (except for the new residential enclaves in Marina Bay/Sentosa), this STATISTICAL PURCHASE DISPLACEMENT by foreigners is likely a direct consequence of en bloc sales facilitated by en bloc law. Whilst condo purchases by Singaporeans will likely exceed those by foreigners in the coming months as the economic picture becomes definitively grim, it would be more honest if the authorities could dissect the upcoming statistics more meaningfully to distinguish the new purchases by HDB upgraders from those by en bloc sellers.
These URA statistics from Year 2000 are very telling. Why? Because it was only in Oct 1999 that the Land Titles (Strata) Amendment Act introduced the concept of 80% (90%) Majority Consent where the private property rights of Minority Dissenters are abrogated by law. Thus, with this law, the Gahmen wedged its big foot into the natural interplay of market forces.
These statistics provide yet one more piece of damning evidence that the PRIMARY BENEFIT envisaged by our Legislators in pushing through this en bloc law (ie, "creating more housing units in PRIME AREAS FOR SINGAPOREANS") has totally flown out of the window! Indeed, more housing units have been created in PRIME AREAS - but for the FOREIGNERS! Even more ironically, it was AT THE EXPENSE OF SINGAPOREANS because the locals were already plonked in these prime areas before they were rudely yanked out a la en bloc! What else is new, eh?

In the midst of the 2006/07 frenzy, the media also went on an initial spin and hyped about "en bloc windfall" amidst yelps of mass hysteria "Wow, I bought my condo for $1mn and now I will be getting $2mn from en bloc, 100% profit, sell-sell" or "Cool, man, I get $1.5mn by selling my unit individually but I get $2mn by selling en bloc, $500k premium". When you bought a gold bar for US$10k and now you are getting US$20k whilst the bullion market is quoting US$30k, don't you think you'd look pretty silly even with your 100% profit?

Even as swathes of private residential properties went en bloc and as the Strata Titles Boards got buried under a growing mound of en bloc disputes, the Singapore Land Authority (SLA) kept a deliberate silence and did NOT take a PROACTIVE STANCE to educate the public about land valuation methodologies (eg, Residual Land Valuation, Comparative New Unit Replacement Market Valuation, implications of Development Baseline computation, Outline Planning Permit findings, etc). For most owners who probably buy one or two condos in their entire lifetime, how many of us know there is such a thing called Residual Land Valuation?

The authorities' convenient silence probably dovetails with the national vision that the Re-making of Singapore would be completed in a decade or two, as expressed by MM Lee Kuan Yew during his visit to Mumbai (Straits Times, 31 Oct 2007).
Blog Amendment, 5 April 2009:Interestingly, in 2007, there was a little blurp about an en bloc sale in the Rangoon/Moulmein Road area involving 5 smallish condos (viz, Norfolk Court, Northern Mansion, Mergui Court, Mergui Lodge and The Mergui) that nearly unravelled because SLA whacked in an astronomical asking price for the 1000 sq m strip of road section that the Developer-buyer needed to buy from SLA to amalgamate the five en bloc plots into a single plot. SLA is not known to be frivolous in stating their opening price - very unlike opportunistic durian vendors, right? So the Developer-buyer then went into a tizzy to lobby and appeal to SLA. The appeal worked! SLA slashed the land premium by 50% from $16.74 mn to $8.37 mn! Even durian vendors don't give 50% discount unless they reckon that the fruit section they split for your inspection belies the duds in other compartments. Whether this is thorny or fishy, let's follow the press commentary trail ... and, assuming the press reports are accurate (since there is no subsequent correction, to my knowledge) you can then draw your own conclusion:
Straits Times, 22 Nov 2007: ... if the small pieces of state land in between are thrown in, the developer will have a site of 87,092 sq ft … in any case, three of the developments could not have otherwise been redeveloped on their own. ‘They need each other because there’s a 30m buffer requirement from the expressway,’ said Mrs Yong.” – Blog note: Mrs Yong is the en bloc marketing agent. SLA would have these land/planning facts at hand when they quoted their original asking price of $16.74 mn.
Straits Times, 5 Aug 2008: sources said that the deal hit problems when the firm tried to buy a 1,000 sq m section of a road from the SLA. Industry sources told The Straits Times that the SLA had priced the land at $16mn – double what KSH and the industry experts expected. – Blog note: KSH is the Developer-buyer. This means that the Developer-buyer and industry expert (eg, the en bloc marketing agent) in making the en bloc offer to owners had priced the road section at $8mn. At $120mn en bloc price for the five pieces of condo land of 74,355 sq ft, it works out to be $1,614 psf. As the industry experts expected to pay half the SLA asking price for the 1,000 sq m (10,764 sq ft), that would mean the adjoining road section would be priced at $778 psf (48% of market rate).
Business Times, 30 Sep 2008: “KSH project manager ... said that SLA’s revised offer was more in line with the price ‘initially expected’. The buyers were caught off guard by the initial $16.74 million land premium. ... The SLA said that it had originally priced the land ‘similar to that offered by the developer to the existing land owners along Mergui Road’. However, on review, it noted the land had some development constraints and considered the revised price ‘in order to facilitate the development proposal’.” – Blog note: As stated above, SLA would have at hand all land/planning facts at the time of quoting the original asking price for road section. By selling state land at half the market price of the adjoining condo land, was it effectively giving a 50% discount? As the road section's sale proceeds go towards government coffers, is it in order for a state agency to do so "in order to facilitate the development proposal" of a commercial enterprise?

4. THE LEGISLATIVE. As amply quoted in paras 1 and 2 above, I will not repeat ad nauseum what was said in Parliament by (i) the then Minister of State for Law during the Second Reading of the Bill introducing Majority Consent under the en bloc law (1998) and (ii) the then Minister for Law during the Second Reading of the Amendment Bill reviewing various aspects of the en bloc process (2007). Nonetheless, it is noteworthy to make the point that during the 1998 Second Reading , the words "for Singaporeans" were even repeated: first, in moving the Bill for the Reading (Hansard, vol 69 at cols 601-607) and second, in the reply after various MPs/NMPs voiced their concerns (Hansard, vol 69, cols 632-634). Alas, these words have since been forgotten ... or so it would appear ...
Interestingly - outside of the en bloc context - during the Feb 2009 Budget Debate for Ministry of National Development, NMP Eunice Olsen asked who we were building or creating this global city for. In Minister Mah Bow Tan's speech, he replied: "This is a very relevant question. We are striving to be a global city of distinction ... but above all, we want to build a city that ALL SINGAPOREANS CAN BE PROUD TO CALL HOME".

In the following para 5, we will see what Minister Mah means. After all, "home" in Leonie Hill is also "home" in Rivervale! You just go from Hill to Vale, from District 9 to District 19, from Orchard Road to Sengkang. What's the problem with you people, eh?

In the face of (a) the ferocity of the en bloc frenzy in 2006/07 which will likely repeat in the next wave, (b) the unrelenting zeal in purposive judicial approach, (c) the way the en bloc law remains - in my opinion - unjustly skewed for the last 10 years even after the last legislative review in 2007 and (d) the untenable en bloc business modality for extant home owners as a direct operation of such law, I honestly do NOT know what to make of MND's tag line of "ENDEARING HOME"! Every time I come across that tag line, it seems to mock at me! Endearing??? http://singaporeenbloc.blogspot.com/2008/08/greek-mythology-themis-and-source.html
5. THE EXECUTIVE. In the midst of the 2007 en bloc frenzy, the Minister for National Development, Mah Bow Tan, was interviewed and he gave this off-the-cuff answer (Sunday Times, 17 Jun 2007): “If you can’t buy an executive flat, buy a 5-room. If you can’t afford central area, go to the suburbs. If you can’t afford Tampines, go to Woodlands or Yishun.”
Minister Mah then went on to spout: "The FUNDAMENTAL REASON behind an en bloc redevelopment is really to make sure that older parts of Singapore have a chance to be rejuvenated and redevelop themselves" and "if we don't have this, we are going to have a static situation where things are going to run down and there is no opportunity for PEOPLE TO NATURALLY REDEVELOP".
Huh??? The rejuvenation and redevelopment are "SECONDARY BENEFITS", if we still remember what Minister of State for Law said in Parliament in 1998? Now in 2007, the Minister for National Development says rejuvenation is the "FUNDAMENTAL REASON". "SECONDARY BENEFITS" now became "FUNDAMENTAL REASON"??? Pray, who are these "PEOPLE" that Minister Mah referred to within this context of REdevelopment? It is likely that he meant the Corporate Developers because the abovementioned statistics from URA (URA is under MND's umbrella) unequivocally confirmed that the percentage of Citizen Purchasers of condos declined whilst the Foreign Purchasers spiked AFTER the en bloc law was introduced. Errr ... I thought "people" should mean "citizens who voted for their Member of Parliament to represent them"?

Compounding it perhaps, this kind of ministerial doublespeak was dutifully parroted in press reports (instead of being intelligently correlated back to 1998 parliamentary speech and contextually queried in incisive journalistic tradition). Thus, it may have confused our Judiciary and may have misled them to stray so far out into the "purposive" zeal and thus misinterpret it as the "MAIN PURPOSE" of the law? Nah ... this cannot be because we do have the finest of pre-eminent minds honed to the highest degree in our Judiciary most certainly! Such ministerial doublespeak is not helpful, to say the least.
Perhaps - as in a drunken stupor or in a realm of the sub-conscience - what was said when drunk or when dreaming may be more reflective of the truth, you think??? What was said by Ministers and Ministers of State in Parliament in 1998. 1999 and 2007 were well-considered, prepared in advance and probably rehearsed. Whatever these parliamentarians said have all been (i) diametrically CONTRASTED by post-en bloc ground realities of being Squatters, Refugees, Downgraders and Downsizers (even for those "lucky" en bloc'cers who "SELL HIGH pre-2H 2007 and BUY LOW post-2H 2008"), (ii) duly NULLIFIED by official statistics and (iii) roundly CONTRADICTED by guttural press comments! So what are our parliamentarians and ministers doing about it??? Any accountability?

In view of the foregoing PROVEN predicaments, WITHOUT AN ADDITIONAL MANDATORY OPTION OF 1-4-1 EXCHANGE - how can the parliamentarians HONOUR THEIR WORD when they passed the en bloc law in 1999, believing that it would result in the creation of "many more housing units in PRIME AREAS FOR SINGAPOREANS"? Pray ... tell me how??? Is their word their bond? We are a House of Cards (don't even breathe "A Man's Home Is His Castle")! How much longer do we have to wait since the law was first passed in 1999 and amended in 2007 before the Gahmen will "DO RIGHT" FOR SINGAPOREANS and apply the true spirit of TRI-PARTITISM in the Re-Making of Singapore (instead of the present business model where it is at the expense of existing owners who "SACRIFICE" their homes for the national agenda of urban redevelopment and higher land-use intensity)? En blocs must pull up EVERYBODY (NOT just selected people - ie, flippers and corporate developers). Surely, we must NOT leave our own people behind as we re-make Singapore?

6. ONE INDUSTRY PLAYER (legal profession). In this arena of en blocs, there are many industry players: Gahmen, Developer-buyers, property marketing agents, lawyers. Lawyer Philip Fong of Harry Elias Partnership verbalized the need for a Best Practices Code for En Bloc Sales during an interview with Channel News Asia sometime in May 2007. Whilst MinLaw appeared receptive to this idea at the time, nearly two years on ... nothing was codified. Whilst our society has rejected ambulance-chasing lawyers, we have opted to look the other way when "no sale, no fee" is the en bloc industry standard that bred a sub-species of die-die-must-sell lawyers! Bearing in mind the Torquevillean propensities, such Best Practices Code should not be limited to the "do's" but also include the "don'ts".

Another lawyer who specialises in en bloc sales, Dr S.K. Phang of Phang & Co, was quoted in Weekend Today (14 April 2007): "A bona fide home owner should be offered an exchange ...". Quite evidently, Developer-buyers have NO SENSE OF CORPORATE SOCIAL RESPONSIBILITY despite being accorded the PRIVILEGE of GAHMEN-PRIVATE SECTOR DIALOGUE AND CONSULTATION. This dialogue has resulted in a piece of en bloc legislation largely calibrated to facilitate corporate developers' exploitation of the law to its fullest potential - viz, unlocking the value of prime/popular residential land which would otherwise NOT be easily available for redevelopment, harvesting almost double/triple "net saleable area" and selling the doubled/tripled space inventory at nearly double/triple the en bloc psf purchase price. Numerous Minority Dissenters during en bloc sale process right up to mediation level at Strata Titles Boards' tribunals have asked (and pleaded) for 1-4-1 exchange on same-size, same-level, same-orientation basis - ALL TO NO AVAIL.
When the playing field is so GROSSLY UNLEVEL, without the protection of carefully calibrated laws and regulations, 1-4-1 exchange could be a minefield! One mis-step in the commercial negotiation could result in such contractual exchange blowing up in your face. En blocs cut across an array of expertise in law, finance, behavioural science, construction, urban planning, economics and commerce - do the authorities seriously expect residential property owners to have such expertise to effectively negotiate one-on-one with corporate developer-buyers when both the en bloc marketing agent and the en bloc lawyer operate under a "no sale, no fee" basis? Whilst Paterson Lodge offers one exemplary example of a 1-4-1 exchange, we should be mindful that the Paterson Lodge en bloc was based on 100% consent. If 100% consent was so reasonably achievable, then MinLaw wouldn't need to push so hard over 1.5 years to introduce the en bloc law, correct??? It is facetious for MinLaw to uphold Paterson Lodge as an example that 1-4-1 exchange would be best left to market forces, especially when LTSA directly impinged on market forces epitomized by 100% consent!
For most Singaporeans, a condo is the most SUBSTANTIVE asset in their investment portfolio and is INTEGRAL to their retirement financial planning. By choosing to buy a condo, they paid a huge PREMIUM (especially for freehold tenure and choice location in land-scarce and densely populated Singapore). These owners ploughed in substantial PRIVATE savings and provident funds (i) at a PRICE LEVEL, (ii) for a LOCATION and (iii) at a TIME that they consider APPROPRIATE TO THEM.
The en bloc law forces the Minority Dissenters to liquidate this substantive asset against their will at a price/time unacceptable to them which would NOT enable them to buy a replacement unit in the same vicinity. This liquidation is at the behest of 80% (90%) of their neighbours who want to exit from this asset class for up to 80 (90) reasons unique to each of them.

This enforced liquidation is even more dire for those who used their CPF provident funds and bought/refinanced their housing loan after Sep 2002 because CPF charge would be robotically 2nd-ranking for such cases. Under this 2nd ranking, any shortfall to the CPF principal withdrawn for such property purchase and/or CPF interest that would otherwise have accrued would NOT qualify as "Shortfall" to prevent redemption of CPF charge which is one of the few grounds enshrined in LTSA to defeat the en bloc sale (assuming that it is not "re-interpreted" under a purposive approach). I have suggested that for Minority Dissenters with 2nd ranking CPF charge, their CPF principal and accrued interest should be deemed as 1st ranking for purposes of computing "Shortfall" in an enforced en bloc sale. As asset disposal is NOT at will for Minority Dissenters, this "deeming as 1st charge" would lend credence to CPF Board's underpinning mission "to enable Singaporeans to have a secure retirement” without straying from the other cornerstone value of personal accountability for one's investment decision.
But then CPF Board probably wants to have its cake and eat it too! On the one hand, the CPF Board reckons that you are still NOT fit to manage your own provident savings even at age 65 (yeh, that's how old you must be before the Board would allow you to draw a monthly pittance from your annuity). On the other hand, the CPF Board does NOT see it fit to protect your provident savings despite knowing that such sale of a residential property asset bought with CPF funds was FORCED upon you as Minority Dissenter in an en bloc!
Sigh ... whilst some of us may go dotty from age 65, the CPF Board appears to have been acting daft at a tender age of 32 (CPF Board was born in 1955; with effect from 1 Jan 1987, Minimum Sum was introduced with drawdown set at age 60 which has since been pushed back to age 62 and then graduated from 2005 to a range of ages 63-65). Perhaps, the Board is not as daft because CPF withdrawal age is tied-up to larger national issues of exchange rate and monetary management when Singapore's current net CPF contributions morph into net CPF withdrawals within the next two decades!!! I reckon the Gahmen is probably telling us less than what they have already projected whilst they focus their zoom on future inflationary pressures and increased life expectancies and the blah. They tell you some BUT they don't tell you all!
In my efforts at active citizenry on this en bloc issue, I encounter a range of responses from well-meaning souls:

- why bother because whatever the public says will just go into the Big Black Hole;

- why would Gahmen care when it affects less than 12% Singaporeans even if ALL condos are en bloc'ced tomorrow (12% is an approximation after excluding (i) landed properties and (ii) condos owned by foreigners/PRs who have no voting power at General Elections);

- why would anyone care when they are (i) HDB public housing heartlanders, (ii) landed property owners, (iii) condo owners who were already en bloc'ced out in the 1999 and 2006/07 frenzies, (iv) condo owners who have already "escaped" en bloc (eg, after winning their en bloc legal battles, or failed to garner the Majority Consent tipping point, or failed to find Developer-buyer, etc) or (v) condo owners who are too new to be en bloc'ced (eg, Temporary Occupation Permit was issued within the last few years);

- why worry when the next en bloc frenzy probably will be 5-10 years after the 2007 peak (the lower range is estimated by the school of thought of "Third Millennium=Short Cycles"; the higher range is from the school of thought of "2009=1929 L-shape economic recovery");

- why fret now when the authorities are open to further review as they wait-and-see ... except that when the next frenzy does come, it will likely be fast and furious because that is the inherent nature of all frenzies and legislative responses are anything but fast!
In a frenzy, there is usually more heat than light, man! In today's environment, all over the world - from the USA to China - captains of governments and industries are shifting gear to "Head in, Hands on" approach, no more the old school of "Hands off" approach ... Get it? Then get moving, man!
I do take their points. These well-meaning souls are just being pragmatic, realistic. For that matter, why would anyone care about a sterilization cash grant pegged to the mother's age/education level and the family size/household income because that too does NOT impact the majority of our population? Why would CPF 2nd ranking matter to me when it is not even relevant for my own case?
But to me, it matters! There is a thread common to all these - whether it is about en blocs, euthanasia, police powers, environment degradation, HDB public housing lift upgrading programme, healthcare policies, school admission criteria, barrier-free access building standards, and whatever else that may pop-up tomorrow.

If it matters only when it concerns you, then very little would matter if you were Bill Gates or Jigme Khesar Namgyel! Then, we would all be the poorer for it even if we are the most wealthy nation one degree north of the Equator!