Romantic rabble v coy court

I had to force myself to read beyond the first sentence. “Laws criminalising sexual intercourse between consenting gay men have been done away with in most countries with the exception of 15 Muslim countries,” it said. It was patently wrong.

There are over 70 countries with laws criminalising same-sex relationships between men. Many of these countries do not have a Muslim majority; some of them have hardly any Muslims at all. On the left is a table of a randomly-picked sixteen of those countries.

The offending sentence came from a media release issued by lawyer M Ravi, announcing a forum that he is convening to discuss his challenge to the constitutionality of Section 377A of the Penal Code — Singapore’s anti-gay law. I cannot agree more that this piece of legislation should be demolished, but going about it by waving erroneous statements is highly embarrassing. You can see his full statement at The Online Citizen.

Further down the text one finds a rehashing of the Queen Victoria legend:

After all, have you ever wondered why lesbians are not included in 377A legislation all across the Commonwealth? Because Queen Victoria refused to believe that they were capable of such behaviour!

Lots of people cite this, but I have yet to see anyone provide substantiation for this claim.

On the contrary, a cursory examination of the circumstances that gave rise to the UK’s Criminal Law Amendment Act 1885 would provide a far better reason why this part of the Act was only targetted at males. Britain was then in the grip of a moral panic about the extent of prostitution. At the time, it was legal to have sex with teenage girls as young as thirteen, while a thriving trade buying and selling girls for prostitution mortified many middle-class citizens. The Criminal Law Amendment Bill was thus drafted in 1881 to combat this. However, it languished for four years until a new scandal in July 1885 — a newspaper undertaking investigative journalism managed to buy a girl –  roused parliament into renewed action.  Then, late on 6 August 1885, a member of parliament, Henry Labouchere, proposed an amendment to the bill making “gross indecency” between males an offence. There was hardly any debate and the proposed amendment was tacked onto the full Criminal Law Amendment Bill. The full bill was passed on 14 August 1885.

Without a record of a debate, it is difficult to know what the UK Parliament’s intention was with respect to the “gross indecency” clause. But if you consider that the Amendment Bill as a whole was  designed to address prostitution and human trafficking, and if you realise that not only was female prostitution rife, so was male prostitution, one can more or less guess why. The main part of the Criminal Law Amendment Bill was gender-specific about girls as victims. Without the Labouchere Amendment, it would not have addressed male prostitution at all.

Our Section 377A is descended from the Labouchere Amendment. I really think we should let the queen off the hook.

Between the “15 Muslim countries” claim and the bit about Queen Victoria, I fear that careless errors like these damage the credibility of the entire exercise.

* * * * *

Beyond these two points, I concur with the rest of Ravi’s media release — in other words, the bulk of it.

Indeed, as he wrote, a double standard is operating. Indeed, “if a provision exists on the statute book that explicitly expresses the prejudices of a certain section of people, then you give carte blanche to those who would use it to further their own value system”.

Undoubtedly, “Having such a law then entitles this same majority to conclude that there is something morally unacceptable about being gay . . . . It entitles the majority to discriminate” and I myself have argued that it “entitles the Media Development Authority to ban positive imagery and depiction of homosexuality from being portrayed.”

Yet I have concerns, and these concerns pivot on what is needed to convince a court.

Challenging the constitutionality of a piece of legislation is a dry and highly technical exercise. As law professor Michael Hor has written, the way to test a law against the fundamental right of equality is to look at it from the perspective of “fit” and “weight”. Does the classification that the law creates fit the purported aims of the law? Is the social problem the law purports to address weighty enough to justify legitimate state action of a discriminating manner? If the answer is No to either one, then the law becomes suspect enough to be struck down.

Unfortunately, much of what was in the media statement is tangential to these key questions. Instead, they are broadbrush claims of the side effects of the law. This is not to say that they are irrelevant and inadmissible. They can be admissible — if they are well supported by evidence.

And herein lies the problem. How do you prove all those claims? How, for example,  is one to get the top honcho in the Media Development Authority to tell the court that he and his staff feel entitled to censor in a discriminating fashion because of the existence of Section 377A?

I’m not saying that these discriminatory side effects aren’t real; they are, but a distinction should be made between what a reasonable person can surmise as cause and effect and what is needed to obtain a finding of fact from a court.

For example, Tan Ah Ter is believed to have killed his wife. The marriage had been rocky for a few years. He has a quick temper and has hit her before.  He was the sole beneficiary of her insurance policy. He remarried — to a much younger Sichuan girl — within three months of his first wife’s death. Most people will say he is the likely perpetrator, but for the court to convict him, one still needs forensic evidence, a confession, or at least much closer circumstantial evidence than the above.

Working people up to demand that the court delivers a decision the way one wants is not going to get us that decision. It would be a sad day if rabbles on the steps of a courthouse determine legal judgements.

* * * * *

Legislatures have more latitude than courts. Where the judicial process demands evidence and verification, legislatures can reflect the balance of opinion and the force of logic. Consequently, the marshalling of public opinion matters as much the marshalling of reason when a matter is before the legislature.

* * * * *

There is one more aspect about constitutional challenges that seems to have been lost in all this, and it is this: As much as it hinges on the technicalities of the law, it hinges too on the personalities of the judges.

The Naz Foundation challenge to India’s Section 377 took place in the Delhi High Court, not by accident, but by design. The plaintiffs looked around India and decided that the Delhi court was the most gay-friendly one, and there they launched the case.

Or take the challenge to Proposition 8 in California. Why was it lodged with the Northern California District Court based in San Francisco? Why not the Central California District Court in Los Angeles or the Southern California District Court in San Diego? I assure you, it was not random.

Constitutional challenges are highly strategic exercises. The best possible plaintiffs are found by advertising in the media; seldom does one use plaintiffs that the police have chosen for you by way of arrest. The timing and location of the challenge are carefully considered to maximise one’s chances.

In tiny Singapore, we can’t choose the location of the court, but we can still choose the timing. Is the bench open-minded enough to give it a fair shot? If not, what about a future bench? Well, consider this: In a recent case, the fundamental right to freedom of expression was tested against the State’s application to convict Alan Shadrake for contempt of court. I think we all know how that one turned out. What makes an argument riding on the fundamental right to equality any more likely to impress our coy judges?

* * * * *

In short, it is this: I agree that Section 377A is bad law and should go. I agree it has all the prejudicial and discriminatory effects as enumerated in the media release. Call a forum and you might rouse several more to agree. Without doubt, it’s all very romantic, but it won’t substitute for the careful assembly of a legal case. That takes punctilious preparation and attention to detail, not sweeping statements that are confoundingly wrong. Charging madly like the Light Brigade towards cowering judges does not a good case make.

As French Marshal Pierre Bosquet, commenting on the bravery of the misguided British cavalry during that incident in the Crimean War, said, “C’est magnifique, mais ce n’est pas la guerre.” (It is magnificent, but it is not war.)

23 Responses to “Romantic rabble v coy court”


  1. 1 Anon 21 November 2010 at 12:53

    Alex,
    Is there still time? Why not collaborate
    with him? As you say, it’s won’t help the
    cause if the thing is flawed. ‘Turn danger
    into opportunity’ as the Chinese saying goes.

  2. 2 Zirong 21 November 2010 at 13:08

    Ravi has his heart in the right place, but unfortunately he appears to be an intellectual lightweight. If he launches a constitutional challenge against 377A, I doubt he will succeed unless aided by people who are more skilled in legal argumentation.

    Hopefully he has the wisdom to get legally-trained people like Michael Hor to craft his arguments for him. If he charges into the court with airy-fairy arguments about justice and human rights, he will not stand a chance.

  3. 3 subu 21 November 2010 at 16:20

    The chances of getting the courts to overturn 377A is nil, no matter how many legal experts help him. For the govt to let the courts overturn this law is to open the floodgates for more challenges to other laws. This won’t happen. Get real.

  4. 4 Wayne Yeo 21 November 2010 at 16:21

    I don’t get the logic of your point. You support the repeal of 377A and you won’t support a public forum on it?

    How is holding a public forum on 377A a “substitute for the careful assembly of a legal case?” Do you mean by holding a forum, M. Ravi will consequently fail to conduct “a careful assembly of a legal case?”

    Are you suggesting that all lawyers should cease holding public discussions of ongoing cases?

    Isn’t talking about 377A here also a form of public forum too?

  5. 5 james 21 November 2010 at 18:25

    yes i agree, unusual for alex to be beating about the bush here, but i think what he’s saying is that this case has wrong facts, wrong client, wrong judges, wrong timing… and as subus says, wrong political environment, so no need to get excited. Just my guess….

  6. 6 james 21 November 2010 at 18:26

    read his last para again – i think it sums it up.

  7. 7 KiWeTO 21 November 2010 at 19:01

    Multiple threads of needs here.

    There is the need for

    1. good legal premises [intellectual heavyweights]
    2. public support [laws ultimately reflect the public's comfort zones?]
    3. Sympathetic judiciary (activist judiciary? so unlikely in this system here.)

    As Alex summed it up, good intentions; will they lead to a good outcome? (good for who?)

    One could argue that from both sides’ (conservative/liberal) perspective, what M Ravi is doing is bird dogging. Both camps seem willing to not commit any real troops to the cause (yet.)

    At least he is trying his best, intellectual heavyweight or not. His research may not be the best, nor might he be seeking sufficient assistance from those in the field. Yet, which other lawyer here acts as openly against sillylaws at all? None whatsoever since they were muzzled into a might-be-consulted society.

    If you never buy a ticket, you can never win the lottery. At the least, it will either get the judiciary to clarify process (by having to conduct it), and allow other potential challengers to learn more. If it exposes the failings of various parties involved, that is up to the rest of the world to decide what to do with that information.

    What damage could come out of the challenge failing? for both the liberals and the conservatives agendas? Is this a preliminary skirmish in their ideological conflict? Either way, its more interesting than a PM saying “don’t rock the boat”.

    E.o.M.

  8. 8 wikigam 22 November 2010 at 00:18

    1) I agree Alex Au’s point in this post(Romantic rabble v coy court)

    2)a)If you don’t know , pls learn it (www.wikipedia.org)
    b)If you know it , pls do it ” right”.
    c)If you are right, it should be ” human right”.
    d)Don’t messy the ” LGBT ” right because of your political agenda benefits.

    3)We have human rights because we exist – not because of gendar , religion , color or country .

  9. 9 subu 22 November 2010 at 01:08

    What damage could come out of the challenge failing? – Kiweto asked.

    It will be political suicide for the gay community to line up behind Ravi.

    It’s not ideal, but it’s a reality that in Singapore, you cannot fight the govt through the courts. If you want change, you need to persuade the govt (e.g. Nature Society persuading the govt to save Check Jawa). How to engage the govt if they see gays lining up behind Ravi?

    Btw, can someone inform here how many cases has Ravi won?

  10. 10 Robox 22 November 2010 at 03:46

    1. “Lots of people cite [Queen Victoria's role in the legislation of S 377a], but I have yet to see anyone provide substantiation for this claim.”

    I am one of those who have cited this and my intention has always been to draw attention to the arbitrary nature of this piece of legislation. My source is a friend of mine who read law at NUS and whose professor recounted tis event. I felt it was authoritative enough of a source to repeat the account.

    Additionally, from other things said and written about Queen Victoria, it would seem to be in keeping with her reputation as a sexual prude. (She was also dubbed the Virgin Queen.) Indeed, to have ‘Victorian values” means to be a sexual prude.

    Still, I hold those living today and having the power to do so to repeal this legislation based in part on its arbitrariness.

  11. 11 Robox 22 November 2010 at 04:01

    This is a continuation from the above post.

    I had also previously mentioned when citing Queen Victoria’s role that it it occurred at the stage of Royal Assent, the equivalent of Presidential Assent in Singapore, to the legislation. Thus, I wonder if there could be any record of it from parliamentary documents. But I am not equipped to comment on records or record-keeping at the Royal Assent stage of legislation. I imagine there must be records at this stage as well.

    I also don’t know anything about the UK’s Criminal Law Amendment Act 1885, but section S377a was enacted in 1961 in Singapore, the year after its equivalent was passed in the UK, a full 25 years earlier. Thus, I don’t know if the circumstances taht you describe as informing the UK’s Criminal Law Amendment Act could have been the same ones that informed the anti-gay laws there.

    Also, I wonder if Ravi’s mention of the “15 Muslim countries” was a confusion with the number of countries – all Muslim (I am unaware if Uganda has passed its proposed laws) – who have the death penalty for same sex activity. I seem to recall a number in that neighbourhood.

  12. 14 Robox 22 November 2010 at 04:15

    2. “In tiny Singapore, we can’t choose the location of the court, but we can still choose the timing.”

    I appreciate your point about picking the timing and even venue, though the latter inapplicable to Singapore, for one’s battles. However, I feel it is a luxury we cannot afford to have in Singapore. Left to their own devices, the best time to battle the the government and its bodies is “never”. I feel we would be falling into their trap when we observe *their* parameters for any engagement with them rather than those that are already provided in the legal system and hold the government accountable for it.

    Moreover, there is sufficient diversity in opinions within the juduiciary in true democracies like India and the US. In Singapore, all the judges are invariably hold the same opinions, all of which are political in origin. (It’s a manifestation of internalized oppression.)

    This constitutional challenge may still be lost, but Ravi would have started chipping away at the inordivate powers that the judiciary in Singapore has.

    Still, I cannot agree more with your underlying thesis: “Without doubt, it’s all very romantic, but it won’t substitute for the careful assembly of a legal case. That takes punctilious preparation and attention to detail, not sweeping statements that are confoundingly wrong. Charging madly like the Light Brigade towards cowering judges does not a good case make.”

  13. 15 yawningbread 22 November 2010 at 12:02

    Ravi sms’d me last night to clarify that the “15 Muslim countries” was a typo. It was meant to refer to countries which still had caning on their statute books.

    Section 377A was incorporated into our Penal Code in 1938 (I could be off by a year or two, but I know for sure it was the 1930s.) I don’t know of any research into what happened that period to motivate the Straits Settlements Government to propose it, and what the Legislative Assembly thought of it before passing the amendment to the Penal Code.

  14. 16 yawningbread 22 November 2010 at 12:20

    To Anon, Wayne Yeo and Kiweto – I am neutral about holding a forum. My chief concerns are twofold:

    1. A legal case requires skill, not bluster. If the drift of the media release is any indication, the aim seems to be to create more bluster. Bluster is counterproductive; it raises the ante in terms of “face” on the part of the government.

    2. There is a downside to trying, fumbling and failing. There is a downside to launching a case at the wrong time — wrong in terms of the constitution of the bench and the political environment — and it is that by judicial custom, you cannot re-open the matter (i.e. launch a similar case) for many years, perhaps more than a decade. So even if due to new judicial appointments, we find a more liberal bench two years from now, it is very hard to relaunch a case, because the court can say: This matter has been settled only recently; don’t waste our time going over the same issue again.

    3. At the very apex of our Supreme Court, there are four Judges of Appeal: CJ Chan Sek Keong, Andrew Phang, V K Rajah and Chao Hick Tin. Justice Chao was Attorney-General in 2007, the year that PM Lee said that the AG had advised him that 377A was indeed constitutional. Thus, Chao seems to have made up his mind on the matter. So it’s already one down, before hearings even begin.

    Ravi’s heart is surely in the right place. His courage admirable. Where I disagree is in his choice of strategy.

    • 17 Zirong 22 November 2010 at 17:13

      I would not attribute much significance at all to your third point. While Chao Hick Tin is an appeals judge, most appeals cases – especially the “juicy” and legally significant ones – are heard by the three wise men of CJ Chan, V K Rajah and Andrew Phang.

      More importantly, the very fact that Chao Hick Tin was the AG who advised the PM on the constitutionality of 377A would mean that Chao would be disqualified as a judge for this case. Judges must be unbiased cannot have pre-judged a case, and it is routine for judges who were ex-AGs to be disqualified from hearing cases that were initiated by the AGC during their tenure.

      If Chao were indeed selected as a judge for this case, it would open the door for future challenges on the grounds of breach of natural justice. CJ Chan will want to avoid that, so he will not pick Chao to hear the case.

      • 18 Robox 24 November 2010 at 05:39

        Zirong, you said: “I would not attribute much significance at all to your third point…most appeals cases – especially the “juicy” and legally significant ones – are heard by the three wise men of CJ Chan, V K Rajah and Andrew Phang.”

        In March of this year at the verdict of Yong Vui Kong’s appeal presided over by Chan Sek Keong, V K Rajah and Andrew Phang, ‘CJ Chan found that to accept the Indian standard of a ‘fair, just and reasonable procedure’ would require judicial interpretation of the scope of ‘reasonable’ – thus potentially leading to a conflict with Parliament’.

        http://theonlinecitizen.com/2010/05/breaking-news-mandatory-death-penalty-constitutional-says-court/

        As I read it, they were prepared to reject a submission – evidence that could be relevant to the case – or even refuse to interpret it BECAUSE it could lead ‘to a conflict with Parliament’, exactly one of the possible outcomes in any judicial review.

        It makes one wonder: Why then does the Singapore judiciary even bother to go through the paces of a judicial review, if not to put on a show trial, when it is possible that they may have to find against the government?

        Thus, even if Chao Hick Tin were disqualified from this case, the same three remaining judges who made the above ruling will not be. How confident can we then be that they would act independently of their Bench colleague, or even more radically, contradict him and the government that repeated his advice, by finding S 377a to be unconstitutional when their priority is not to come into conflict with Parliament?

        (I wonder why I seem to still be the only person who has pounced on this portion of the ruling as *the* definitive proof that the Judiciary is not independent of the Executive.)

        It is why I am of the belief that the AGC is trying to thwart the constitituional challenge initiated by Ravi: to save the various branches of government and the individuals involved this embarassment of having been caught out.

        Still, I will continue to hold the government – both the Executive and the Judiciary – accountable to seperating their functions as well as their powers. After the Delhi High Court ruling, the government did something unprecedented when they commmented on a gay rights success story of another country. This is attributable to K Shanmugam, his false bravado fully intact:

        http://www.yoursdp.org/index.php/news/singapore/2533-singapore-not-swayed-by-india-gay-sex-ruling-minister

        [Quote]

        “[K Shanmugam] said however that Singapore’s courts were free to interpret the law as the Indian court had done.

        “We won’t change the law, but how that is interpreted is up to the courts,” the Straits Times quoted the minister as saying.

        “It is not our position to tell the courts what to do.”

        [Endquote]

      • 19 yawningbread 1 December 2010 at 02:06

        By sheer chance, I saw this week-old comment by Robox (above) in the Spam Box and rescued it. WordPress probably shunted it there automatically because it contained two hyperlinks.
        .
        On the second point about what Shanmugam said. . . what else could he have said? Could he have said “We won’t change the law and we won’t let the courts interpret it?” The PAP govt is not so stupid as to say that; they know they need to preserve the figleaf of “rule of law”.

    • 20 Robox 23 November 2010 at 02:30

      Thanks for the info in this post, especially those in #2. I can better understand your own angst now; I have angst of my own over this.

      While I know that this is not the point that is on your mind, I thought that lest readers form the wrong impression about what you might have meant about the wrong timing of this, I would make these points in Ravi’s defence, in part to illustrate the problems associated with the various strategies he could pursue:

      1. Ravi could not have timed these events: he could not have arranged for his client to commit the sex acts that landed him in trouble with the law, nor could he have arranged for the vigilantes to catch his client in the act and proceed to hand him over to the police.

      2. Ravi could not have set the court dates; the courts give those dates to him.

      Thus, in terms of preparation for this case, it could end up a being a rush job, though not one of Ravi’s doing; it’s to do with the timeframe that he has been given to work with.

      Then, if very understandably, no individual LGBT (or a group of them) initiates legal proceedings in a sue because of the costs involved, then the only course of action open to Ravi might was to pursue action based on a charge having been laid.

      Again, he had no choice in the timing.

      LGBTs are further left in an impasse if the government continues to maintain its committment to not’proactively’(sic) enforce S 377a.

      Without S 377a’s repeal, we cannot even begin to move on to the other “gay issues” which includes issues like gay marriage and housing because the LGBT community is unlikely to have the will for it with the major annoyance – the stumbling block – still in the way.

      However, this leads me to your statement, which I believe makes a valid point, especially combined with the points you raise in #2:

      “Where I disagree is in his choice of strategy.”

      Is Ravi working alone on this?

      Nowhere else where this challenge has been made has legal counsel worked on this alone; they have all been a team effort comprising individuals with different but complemetary skills sets. Additionally, not being gay himself and thus not having gay experience means he could be hampered in some way by it – this is something that even our most well-intentioned allies will experience and it’s really beyond their control. (It’s the reason I believe that if LGBTs wanted political parties to develop more comprehensive policies in the direction of LGBT rights, LGBTs have themselves to be there to drive the exercise.)

      Thus with regards to strategy, I now lean even more heavily towards seeking wider community input. As well, I personally would suggest as I did on TOC, for legal counsel to obtain more information regarding how public funds can be made available for this purpose.

      Also, I would have wanted no other lawyer other than Ravi to be doing this. For one, there really is no other lawyer with his guts. There is no other lawyer, at least those in the public eye, who have gone as far as he has in terms of constitutional challenges/judicial reviews; I am assuming that he would be gaining expertise in the area as a result. And because, I feel strongly about the abolishment of the death penalty as well, and with Ravi being the only lawyer working on it, then I would rather he beefs up his capacity for that as well by attending to as many diverse constitutional cases. (I’m not prioritizing any one issue over others.)

    • 21 KiWeTO 23 November 2010 at 13:54

      YB,

      I have to disagree with this bit of analysis here. There is judicial custom, and there is inequality. Inequality holds no respect to custom if there is a strong enough case. Perhaps you know someone else contemplating bringing about a judicial review, and that Ravi’s attempt dilutes and prejudices future attempts.

      Also, SG is NOT the US. The liberals seeking to unchain legal shackles can “shop” around for a favourable court, as well as ‘wait’, as well as seek formal funding for the GLBT organizations. Given the conservative legalistic approach of this government, when will SG ever appoint anyone liberal-leaning?

      Thus, there is never a good time. The odds are not on Ravi’s side, but at least he is trying. Since there isn’t even an official gay organization in this country, there cannot even be an official position taken by the “Gay community” to support his 377a repeal (or not).

      Aid him in whatever we can, and hope for a good show from all participants. As I said, his attempts will at least crystallize and actualize the processes a judicial review requires. That in itself is success in trying to achieve separation of court and state.

      E.o.M.

  15. 22 Robert 24 November 2010 at 14:35

    Someone here compares the challenge to repeal 377A to the preservation of Chek Jawa nature reserve. His point – don’t be confrontational, talk softly and persuasively to the Goverment; you’ll stand a better chance of success.

    Yeah, right, dream on Singapore.

  16. 23 Bernie 26 November 2010 at 17:45

    As another poster said,

    Why don’t you help Ravi in working out a strategy?
    I don’t get the point of picking faults with Ravi’s writings or court case, frankly.

    Keeping information widely disseminated is one point of the forum that I can see. Let education on issues affecting our lives be disseminated widely, and let a thousand flowers bloom, in Mao’s words. Information is strength, and connections can be made in a public forum that will rival that of anything seen on the internet.


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

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