A recent decision by the High Court of Singapore has raised serious questions about the future of cross-border asset recovery and its implications for global efforts to combat kleptocracy. The court ruled that cross-border insolvency laws cannot be applied retroactively to transactions prior to 2018, effectively limiting recovery efforts tied to the 1MDB scandal.
This ruling has sparked concern among legal experts and anti-corruption advocates, who argue that it could hinder international cooperation in tracing and reclaiming assets misappropriated by corrupt regimes. Whether an appeal will overturn the decision remains uncertain, but the stakes for social justice are undeniably high.
The broader fight against kleptocracy
In my view, the international community’s efforts to curb kleptocracy and the wrongful misappropriation of public assets must be firmly supported by the rule of law. These efforts are not merely legal battles — they are moral imperatives rooted in the principles of justice and accountability, as enshrined in various international conventions.
Cross-border asset tracing typically involves foreign applicants seeking judicial assistance to recover assets unjustly held within a jurisdiction. While the legal framework is complex, it does not preclude courts from granting relief in appropriate cases.
The Singapore ruling, however, underscores the need for more robust legal mechanisms to ensure justice is not constrained by technicalities.
Vienna colloquium and the civil asset recovery framework
At an international colloquium in Vienna on Dec 6, 2019, I presented a paper titled “Civil Asset Tracing and Recovery”, proposing innovative strategies to combat kleptocracy. My key proposals included:
- Strengthening international conventions to empower private citizens and civil society to take legal action against corrupt officials.
- Allowing civil and quasi-criminal proceedings in jurisdictions where stolen assets are held, bypassing the inaction or complicity of kleptocratic state institutions.
- Rewarding informants from recovered proceeds and ensuring their protection, to encourage whistleblowing in hostile environments.
- Establishing neutral UN complaint offices in every state, supported by UN-authorised private investigation agencies with powers to investigate and act on kleptocratic conduct.
- Promoting “naming and shaming” through legal action to raise awareness and pressure institutions to uphold the rule of law.
- Closing legal loopholes that allow kleptocrats to legitimise the diversion of public funds through disadvantageous contracts.
Oath jurisprudence and judicial power
In my Aluma Mark Chinonso decision, handed down in 2020, I explored the oath jurisprudence, which provides an extended form of judicial power rooted in constitutional supremacy.
Unlike the American precedent of Marbury v. Madison (1803), which established judicial review, the oath jurisprudence that I developed empowers judges in Commonwealth jurisdictions to actively uphold social justice — even in the absence of legislative frameworks — provided it does not breach the separation of powers.
This doctrine allows courts to provide relief in asset recovery cases involving kleptocratic regimes, reinforcing the judiciary’s role in defending constitutional values and promoting transparency and accountability.
Call for legal reform, judicial courage
The Singapore ruling highlights the urgent need for legal reform and judicial courage in the face of global kleptocracy. Courts must be empowered, not restricted, to deliver justice across borders. The rule of law should not be a shield for wrongdoers but a sword for the oppressed.
As the legal industry and judiciary evolve, embracing the oath jurisprudence principles and enhancing international cooperation will be critical to ensuring that social justice is not just an ideal, but a reality.
The views expressed are those of the writer and do not necessarily reflect those of FMT.