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23 Aug 2012

Constitutional challenge to 377A to go ahead

While the language of the judgement may sound “gay-friendly”, it does not necessarily mean the judges are leaning towards the merits of the case against 377A, says pioneer gay rights activist Alex Au. He also highlights that Tan Eng Hong, who filed the case, may face bankrupcy should an order of costs be made against him.

I see that not only is the gay and lesbian community pleased by the Court of Appeal judgement released on Tuesday, 21 August 2012, some folks are especially delighted with the arguments used within the written decision. For example: that 377A “affects the lives of a not insignificant portion of our community in a very real and intimate way”.

Supreme Court Building, Singapore

The Court of Appeal reversed the High Court decision on striking out, and thus allows the constitutional challenge brought by Tan Eng Hong against Penal Code Section 377A — the law that criminalises “gross indecency” between men — to proceed.

I would reach for a deeper understanding why the language of the judgement may sound so “gay-friendly” for want of a better word. It is simply because one of the two conditions that needs to be satisfied for allowing a constitutional challenge to succeed is for there to exist a “real controversy”. One could argue therefore that the justices of the court were highly conscious that they had to demonstrate clearly why they thought a real controversy existed, so they naturally had to give play to the arguments against 377A.

It does not necessarily mean they are leaning towards the merits of the case against 377A.

Or, perhaps, it does. As I have pointed out in previous writings, the vast bulk of legal judgements from around the world, whenever anti-gay laws have been challenged in the last 20 – 30 years in jurisdictions with respectable justice systems, have been against such laws. It does not look as if there are good arguments for such discriminatory laws. One therefore hopes that when it comes to the trial on the merits of the case, it will be smooth sailing.

But who knows? Singapore’s benches have produced some weird judgements before, and may yet lay a square egg.

What is likely to happen next is for the case to be heard in the High Court again, this time on the substantive arguments for and against the constitutionality of Section 377A. The judgement issued this week has largely narrowed the scope of the next stage to Article 12 of the Constitution, which says: “All persons are equal before the law and entitled to the equal protection of the law”.

However, the court accepted that because Tan Eng Hong was briefly detained over Section 377A, the facts of the case may also suggest that a possible violation of Article 9 occurred. This article says: “No person shall be deprived of his life or personal liberty save in accordance with the law” . This however is almost surely going to be peripheral to any future arguments.

But will there be a next stage?

M Ravi in the spotlight

Tan’s lawyer, M Ravi, was recently in the news when an officer of the Law Society gatecrashed a few court proceedings trying to get him removed from making his case for his clients. Allegations were made that he suffered from bipolar disorder and that he was unfit to be in court. M Ravi has filed a writ of summons against the Law Society and that officer Wong Siew Hong.

Will the Law Society be taking further action to disbar M Ravi? If it succeeds, will another lawyer step to take over Tan Eng Hong’s case? M Ravi has hitherto been doing this pro bono. Who will step in?

Costs

The other thing to note is that the Court of Appeal made no order as to costs. This can be crippling should Tan Eng Hong lose the next stage. Observers at the previous hearings have noticed how the Attorney-General’s Chambers sent in phalanx of top lawyers to defend the state’s position, and are likely to do so again when arguing merits.

I know little about Tan Eng Hong’s financial position, but I am told that he understands he could be bankrupted should an order of costs be made against him. This is a terrible indictment of Singapore’s justice system, when anyone trying to go up against the system seeking access to justice has to bear such risks.

Of course, the thing to do would be to raise money at the grassroots level. Ah, but this is Singapore, and such ground-level activism is not only not encouraged — the political rhetoric about being active citizens and promoting creativity notwithstanding — it is actually illegal. Section 39A of the Charities Act forbids anyone from conducting a fund-raising appeal without a permit. Of course you could try to get a permit, but if the experience of applying for permits to hold outdoor demonstrations or registering an LGBT society are any indication, don’t hold your breath.

The system here is designed to make it very hard to contest the status quo, however much lip service is paid to encouraging the opposite.

The press

The 400-word report in the Straits Times was exactly what I expected. It included references to Tan Eng Hong’s tryst in a public toilet that led to this case, which might have led a cursory reader to think that he was seeking the constitutional right to have toilet sex. The story treated the reasons used by the judges in arriving at their decision in a cursory way.

Fortunately, Today newspaper’s version of the story was far better, giving more attention to and citing from the written judgement. There were two stories of 550 words and over 800 words respectively, with a side story highlighting extracts from the judgements, (about 300 words).

Parliament

I still think that legislative repeal is the better way forward, though I am more and more convinced that so long as either the People’s Action Party of the Workers’ Party dominate parliament, this is not going to happen. Neither party has courage on social issues that can in any way be classed as “liberal”. Singapore’s challenges are increasingly social issues. Moreover, what is holding Singapore back tends to be a conflict between our desire for a cutting-edge economy and our attachment to archaic social norms. The latter includes unstated bias in areas such as gender roles (the man was breadwinner, the wife as the one responsible for childrearing and the home, but could she also work and supplement the family income please?), traditional family structures, race-consciousness in society, deference to authority, material wealth as a measure of success, and the increasingly rigid social stratification that results from applying income and wealth as measures.

If Singapore is to break out of our present quagmire of not being able to conceive of a clear future, we need to reimagine our social arrangements. And this is where leadership is of critical importance. Leaders should be leading us out of the straitjacket of old thinking.

By ducking a relatively simple issue of equality for gay citizens, political leadership in Singapore is abdicating this important role on all other social issues. It makes itself risible like the proverbial leader who says to his men, leading them into battle, “Follow me, I shall lead you . . . from behind.”

Alex Au has been a gay activist and social commentator for over 15 years and is the co-founder of People Like Us, Singapore. Alex is the author of the well-known Yawning Bread website.

Singapore

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