In our circus, few understand what ‘equal protection of the law’ means

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Andrew Loh posted a ‘scratch head’ article recently about the contradiction between what then-Minister of State Halimah Yaacob said in 2011 at a CEDAW conference in New York and the Court of Appeal affirming Section 377A to be constitutional. In A difference of opinion between the gov’t and the Court of Appeal?, he quoted Halimah as telling delegates at that UN conference that

The principle of equality of all persons before the law is enshrined in the Constitution of the Republic of Singapore, regardless of gender, sexual orientation and gender identity. All persons in Singapore are entitled to the equal protection of the law, and have equal access to basic resources such as education, housing and health care. Like heterosexuals, homosexuals are free to lead their lives and pursue their social activities.

But just a month ago, the Court of Appeal ruled differently. It said that the constitution gave no such entitlement to equality. I have analysed its reasoning in a recent article Legal Elmina. In that article, I pointed out that what the Court of Appeal essentially did was to deny any substance to sub-article (1) of Article 12 of the constitution. Article 12 says:

Equal protection
12. —(1)  All persons are equal before the law and entitled to the equal protection of the law.

(2)  Except as expressly authorised by this Constitution, there shall be no discrimination against citizens of Singapore on the ground only of religion, race, descent or place of birth in any law…

In effect, the court said it can only be guided by 12(2) in arriving at a decision since 12(1) is merely aspirational. And since 12(2) makes no mention of gender or sexual orientation as disallowed criteria for discrimination, therefore discriminatory laws along gender and sexual orientation lines cannot be struck down.

Andrew’s article focussed on the contradiction between what Halimah so blithely told the UN and what the court said.  This contradiction remains to be explained (if that is at all possible beyond it being a heap of muddle, ignorance and insincere attempts at deflection of international criticism).

A letter published 17 November 2014 in Today newspaper 377A ruling contradicts govt position on equality, points out the same tension. Letter writer Goh Li Sian calls on the government to rectify the anomaly by amending Article 12(2) “to afford equal protection before the law, regardless of gender, sexual orientation and gender identity.”

* * * * *

What I am reminded of, on reading Andrew’s article and this letter is that the court’s dismissal of Article 12(1) is still not addressed. I suspect it is because no one in this circus that is the Singapore establishment seems to understand the meaning of “equal protection”. It is fundamental. Article 12 itself has those two words in its header. If one does not understand what “equal protection” means, then one will not be able to fathom meaning from the constitution. No surprise if these dour grandees of the Singapore state look like clowns.

Article 12(1)’s two limbs

Look carefully at Article 12(1). It says: “All persons are equal before the law and entitled to the equal protection of the law”. Why does it have two limbs?

I’d argue that the only sensible way to parse it, is to understand that “equal before the law” has a different meaning from “equal protection of the law”. The first says that all persons are equally subject to the law, i.e. the control measures. The second says all persons shall equally enjoy protection from control measures unlawfully attempted by others.

This reinforces my point: the moral purpose of law is protection.

But it’s not a problem confined to grandees. Singaporeans in general have been depoliticised and stayed uninquisitive for so long that we too find it hard to understand what “equal protection” means. Perhaps decades of authoritarian rule have left a legacy of stunted knowledge: we may simply conceive of law as mechanisms for control. This conception is wrong. Control is the secondary purpose of law. The primary purpose of law is protection. Its moral goal is justice and equity. Fairness. However, in order to achieve justice and equity, it needs to control the actions of some people (“group A”) doing certain things which may cause injury to the interests of others (“group B” — which could be everybody, including A). In so doing, it offers protection to B from harm — i.e. law’s primary purpose.

Thus we have laws that control speeding on roads, selling unapproved ‘medicines’, forgery, or having sex with minors too young to give informed consent.

This hierarchy of purpose  — protection as purpose, control as means to an end — must be kept in mind. It is what gives legitimacy to law. But once we are alive to this hierarchy of purpose we can easily see that measures of control are only lawful if they can be shown to advance the cause of protection (justice, equity, freedom from harm, etc). Control for the sake of control, for the sake of furthering one group’s interests — and along the way causing hurt to others — cannot be lawful. When we add the word “equal” to “protection”, it becomes even clearer. The law must not only protect, but protect in equal measure.

In more formal language, the Legal Information Institute of Cornell University (source) explains,

Generally, the question of whether the equal protection clause has been violated arises when a state grants a particular class of individuals the right to engage in an activity yet denies other individuals the same right.

and

The Supreme Court, however, has applied more stringent analysis in certain cases. It will “strictly scrutinize” a distinction when it embodies a “suspect classification.” In order for a classification to be subject to strict scrutiny, it must be shown that the state law or its administration is meant to discriminate. Usually, if a purpose to discriminate is found the classification will be strictly scrutinized if it is based on race, national origin, or, in some situations, non U.S. citizenship (the suspect classes). In order for a classification to be found permissible under this test it must be proven, by the state, that there is a compelling interest to the law and that the classification is necessary to further that interest. The Court will also apply a strict scrutiny test if the classification interferes with fundamental rights such as first amendment rights, the right to privacy, or the right to travel.

The above makes another important point: a court cannot do its job properly unless it discharges its duty to scrutinise legislation for intent. Which only makes sense, for how else does one decide whether the control that any piece of legislation authorises is justifiable (lawful) unless it first weighs whether there is a compelling need to protect people against something. Remember: liberty has moral value. Control is a subtraction from that value, and it had better be justified through a clear demonstration of need.

In contrast, our Court of Appeal (in its 377A decision) declared that it had no authority to scrutinise legislation for compelling state interest. It abandoned its job. How astounding is that!

To summarise: Our knickers are in a twist because too many Singaporeans have lost sight of the hierarchy of purpose. We think that law’s primary purpose is to govern, when it is supposed to protect us from abuse by others, especially the powerful. We only see law as measures of control. We confuse legitimacy with mere punctiliousness of parliamentary process. We’ve now degraded ourselves to the point where even our courts are confused.

If it were so that law is constitutional and legitimate as long as parliament has voted according to proper procedure, then if tomorrow, Parliament passes legislation that exempts all its members, their spouses and children from paying income tax for the rest of their lives, we would have no intellectual tools to declare such legislation unlawful. And it is precisely because we’ve mislaid these intellectual tools that the Court of Appeal was unable to find any operational guidance from Article 12(1). It could only declare it “aspirational”,  since it had no clue how to translate it into law.

* * * * *

I have no doubt that some practising lawyers too might disagree with me, casting my views as way too broad and ahistorical. That’s not how law works in Singapore, they will say. In a parliamentary system, courts must bow to the sovereign parliament.

That’s exactly what’s wrong with Singapore, and why sometimes, lawyers are part of the problem.

Firstly, we tend to confuse “how it’s been done” with how things ought to be. In the process, we ignore the fact that any “how it’s been done” argument is often confected with a bias towards current practice, taking little account of accumulated deviations and corruptions over the centuries that have departed from commonsensical beginnings. A compendium of habits is no defence against a summons to moral purpose.

Secondly, such an argument can also be seen as an attempt by insiders to close the window to scrutiny by outsiders.  It’s not different from the way the ruling party used to cut off anyone offering political criticism by telling him or her to go contest an election. Politics is for politicians, they imply; ordinary people have no right to form opinions on how political decisions are made.

And law is for lawyers? In the same vein, I have no patience with anyone who says “but that’s how law works, ” or “that’s not how law works”. That’s too self-referential, forgetting that I am interested in how law ought to work. I am asking: What are the intellectual foundations for good law? Why and where do we fall short? How does our stunted, in-grown system answer in the court of public opinion to a higher moral calling?

When a comet breaks up

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Ever so gradually, almost imperceptibly, people whom we normally associate as ‘establishment types’ are beginning to moot the possibility of the People’s Action Party (PAP) losing power, and discuss its implications. Ho Kwon Ping, former chairperson of government-owned Mediacorp, said (as reported in Today, 20 October 2014) the party could lose its dominance in parliament in 15 years, or lose power completely in the second half of the next 50 years. Responding, Han Fook Kwang, former managing editor of the Straits Times, turned the question around, asking himself: Under what circumstances can the PAP remain as dominant in the next 50 years as it has been in the past? Even though his essay (published on Singapolitics 11 November 2014) sounded more like helpful advice to the party, the unsaid implication is that if none of the three scenarios he sketched occurs, Ho Kwon Ping’s prediction may well be borne out.

Han added too that “These discussions might seem odd to external observers when there isn’t a successor to the ruling party in sight.” Indeed, this is a question posed to me from time to time, especially from foreign academics, journalists, and on a recent occasion, by a diplomat recently arrived in Singapore.

My answer to this is that this very question indicates a tendency to view politics in Singapore within a western democratic frame, where parties or coalitions of parties alternate in power. I think this is misleading; it is important to stop accepting as fact the PAP’s propaganda that we have a democracy. We have little more than a veneer of democracy masking what is essentially an authoritarian system. It is more useful to analyse our politics as a contest between power and resistance. Or at least between power and frustration. Not as a choice between party A and party B.

The problem faced by anyone wanting to organise resistance to the PAP is that those most ready to resist aren’t of one mind. They are spread out over a range of opinions, from those nostalgic for a simpler, amber-hued time, to those who conceive of a Singapore in a starkly different, reimagined way. To make things even more complex, individuals can hold different positions along this sweep depending on the issue, e.g. someone can hold positive views about immigration and a future more cosmopolitan Singapore, and yet be rather Marxist in his diagnosis of our economic ills. Another person can be quite nativist, almost racist, when it comes to resisting immigration while hewing to free-market libertarianism.

There is a notable person who is, in all sincerity, pro-human rights, but is stridently opposed to equality for gay people. Go figure!

Every unhappy person is unhappy in his own way.

Our (small) opposition parties therefore have a hard time finding enough commonality to build a sizeable support base. If they try to please as many people as they can, spread widely over an opinion field, many will accuse them of being wishy washy. If they try to articulate a clear position on any issue, they may find insufficient support.

The ruling PAP has two huge advantages: incumbency and familiarity. This is not unusual. Parties that have been in power for as long as it has always enjoy these advantages. In addition, the PAP has wielded its incumbency to shackle opposition parties and civil society with rules and bans, and place loyalists in all key administrative positions, in order to prevent opposing centres of influence and power from growing. At the same time, the old dictum “better the devil you know than the devil you don’t” works in its favour. Large numbers of people may not be enthusiastic about the PAP, but they are reasonably happy and there is safety in sticking with the known.

Unless a charismatic leader emerges, able to attract large numbers of voters towards him (or her), future elections are not really for opposition parties to win, but for the PAP to lose. This is most likely to happen when its much-vaunted competence is seen to decline. Frustrations build up and people start to desert the right end of the opinion field and migrate leftwards as in the diagram below (Please note my use of “left” and “right” does not connote political ideology, only to relative positions on my diagrams). The process looks like one of a comet breaking up.

 

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But inevitably, like those who have migrated before them, they start spreading out across the opinion field too even if the centre of gravity moves leftwards. While this shift makes elections a lot more competitive, it remains difficult for any single opposition party to capture support. The frustrated voters remain divided and opposition parties are likely to stay fractious.

Malaysia’s experience as UMNO and the Barisan Nasional’s vote-share declined is the salutary example. Anwar Ibrahim is a nearly-charismatic figure who managed to hold things together for a while, but otherwise the opposition parties remain badly divided in terms of ideas and policy platforms, reflecting the diversity of anti-UMNO feeling.

Singaporeans should not fool ourselves into thinking we can shift from a PAP-centred system into an alternating-party system smoothly. The probable course is one of a very messy, drawn-out transition. Naturally, the PAP will stoke fears of paralysis and a huge economic price to pay, to avoid judgement day for itself. Particularly for the more risk-averse types among Singaporeans, these fears will resonate.

There may indeed be some loss in efficiency as coalition politics with temperamental shifting alliances become the order of the day. However, competence is not a fixed trait, but an evolveable and adaptive one. Even as new ministers take the helm, the fools among them will soon be booed out by a newly vocal and re-politicised society. The quick learners in the new cabinet will prove themselves before long. That said, it may take a generation before politics settles into a new pattern — whatever that may be.

It is not easy trying to predict when the tipping point away from PAP-dominance will occur. Ho Kwon Ping has said it is at least 15 years away. Han Fook Kwang avoids any prediction. But political systems can break as unexpectedly as mechanical parts. For the PAP, once its aura of invincibility is broken, it cannot be put back together again. Which, I suppose, explains why is it so freaked out by a fear of “freak results” at any general election.

But right now, my abiding sense is that paralysis is already upon us. The PAP appears to be paralysed by its own fears of losing ground that it cannot do more than tinker at the edges of anything. It cannot up-end its tried-and-tested models lest an experiment goes badly awry, be they models of economic growth, housing policy, the social compact or its instinctive throttling of opposition parties and civil society.

So maybe that should be opposition parties’ unifying battle-cry: Enough with the paralysis! Time for a new Singapore. And hope that voters don’t notice it is just as policy-empty as can be. But have some sympathy for them. What else can they do when Singaporeans, frustrated with the PAP, are all over the place?

 

Khaw finds obedience school ‘meaningful’

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The recent controversy about a ‘riot control exercise’ reveals a blind spot among ministers and not a few decision-makers and ‘grassroots’ surrounding them. They seem unable to see a point of view that is emerging in Singapore: what I would call the ‘Post-independence generation’ outlook. This outlook is subtly but importantly different from that of the People’s Action Party and its devout followers in terms of how they see race and nationality in our society.  PAP et al see race and nationality as a reality we have to accept and work with, but the new outlook puts a moral (dis)value on such distinctions and want us to actively avoid using them. Continue reading ‘Khaw finds obedience school ‘meaningful’’

How to help ripped-off tourists

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The past week saw a remarkable story of how people here rallied to redeem Singapore with no help at all from government agencies. After video surfaced of Vietnamese tourist Pham Van Thoai on his knees begging for a refund from a callous shop owner, over $14,000 was raised within a day on Indiegogo to help compensate him for his loss of $550. According to reports, news reached all the way back to Vietnam, earning much praise for Singaporeans.

Yet, I daresay that for every one Thoai, there must be a thousand more tourists and local shoppers scammed by get-rich-quick businessmen (and women). Ad hoc bottom-up indignation and fundraising, however laudable in one instance, cannot be a practical solution to a persistent cancer. We need a structural response, and in the nature of structural responses, the role of the state in implementing one cannot be avoided. Continue reading ‘How to help ripped-off tourists’

Legal Elmina

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The judgement by the Court of Appeal, affirming the constitutional validity of Section 377A of the Penal Code, is a landmark… in the way that Elmina Castle in Ghana is a landmark. Section 377A is the law that criminalises sex between men and is the fount for a cascade of discriminatory policies against LGBT persons in Singapore. The judgement was released on 30 October 2014 and has since received very dim reviews from many observers, organisations and publications abroad, including the United Nations’ Office of the High Commissioner for Human Rights. Continue reading ‘Legal Elmina’

So now, the constitution’s the problem?

pic_201410_16Bad news this morning. The Court of Appeal, Singapore’s highest court since we abolished appeals to Britain’s Privy Council, has ruled that Section 377A of the Penal Code is not unconstitutional. Section 377A criminalises sex between men, and is the key piece of legislation that justifies a plethora of other rules and regulations that discriminate against gay people.

I haven’t had time to read the 100-page judgement — thus a short post today — but snippets reported in the press this morning, such as this below, suggest that it is going to be a screamer, crying out for deconstruction. Continue reading ‘So now, the constitution’s the problem?’

Twist in Susan Lim case widens affective divide

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Ministers can’t be very happy with the Sunday Times for a story the newspaper carried on 26 October 2014. Of course, that’s only if they understand how public opinion is shaped. They may not. Going by the tone-deaf way they have conducted themselves across a whole range of policies, they may have no feel for the public pulse.

The story about the High Court slashing lawyers’ fees may at first seem to have nothing to do with the People’s Action Party. But netizens quickly zoomed in on one name: Alvin Yeo, senior partner of the law firm WongPartnership LLP . Alvin Yeo is also the PAP member of parliament for Choa Chu Kang GRC. WongPartnership was retained by the Singapore Medical Council to represent them in the Susan Lim case. Continue reading ‘Twist in Susan Lim case widens affective divide’

My trial for contempt of court, part 5: mens rea, tone and tenor

Parts 1 to 3 dealt with the specific stings that the Attorney-Generals’ Chambers complained of, from two articles on this blog Yawning Bread: “377 wheels come off Supreme Court’s best-laid plans” published on 5 October 2013 and “Church sacks employee and sues government” published on 12 October 2013. My lawyers vigorously contested the accusations, describing the AGC’s case as a “house of cards”. Part 4 dealt with the legal burden and examples from the Shadrake case.

During the trial on Tuesday 21 October 2014, several other issues were also addressed that did not refer specifically to any statement complained of, but were nonetheless important overarching issues. I will record what was said on these points here in this fifth (and last) article. Continue reading ‘My trial for contempt of court, part 5: mens rea, tone and tenor’

My trial for contempt of court, part 4: legal burden and Shadrake precedents

My lawyers Peter Low and Choo Zheng Xi submitted, citing the Court of Appeal decision in Shadrake, that for the AGC to succeed in its application for my committal,

it must prove beyond a reasonable doubt that the Publications prose a real risk of undermining public confidence in the Judiciary… The real risk test will not be satisfied in a situation where the risk of undermining public confidence in the administration of justice is remote or fanciful. Further, a Respondent will not be liable for contempt of Court if his comments amount to fair criticism. The legal burden is on the Prosecution to establish that the impugned statement does not constitute fair criticism, although the evidential burden is on the party relying on it.

My understanding of the AGC’s position is that it more or less agrees with the above description of its legal burden, with two areas of possible dispute. Continue reading ‘My trial for contempt of court, part 4: legal burden and Shadrake precedents’

My trial for contempt of court, part 3: the second article

Christ and the woman taken in adultery, by Nicolas Poussin, 1594-1665

Christ and the woman taken in adultery, by Nicolas Poussin, 1594-1665

In his oral submission, Peter Low, arguing in my defence, took only about twelve minutes to address the allegations made by the Attorney-General’s Chambers with respect to the second article “Church sacks employee and sues government”. The written submission however was more substantial.

Peter cut to the chase which was why he didn’t need much time. In addressing paragraphs 67 to 97 of the AGCs’ written submission (dealing with the second article), he reiterated that “what is alleged is not borne out by the plain words of the contents of the second article.” Within those 31 paragraphs from the AGC, he said, the AGC relied on the word “insinuation” six times, the word “imputation” three times and the word “implication” once. Continue reading ‘My trial for contempt of court, part 3: the second article’


For an update of the case against me, please see AGC versus me, the 2013 round.

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