Constitutional challenge to 377A to go ahead

I see that not only is the gay and lesbian community pleased with 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”.

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 its 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?

[Addendum (24 August 2012): The Law Society has taken out an application in the High Court to commit M Ravi to the Institute of Mental Health against his will. A hearing is set for September.]

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. [Amended start] While Section 39A of the Charities Act forbids anyone from conducting a fund-raising appeal without a permit, a by-law, namely the Charities (Exemption from section 39A) Regulations 2011 allowsan exemption from permit to “any person who conducts or participates in any fund-raising appeal where the whole of the proceeds (less permitted deductions) are to be applied for charitable, benevolent or philanthropic purposes connected with persons, events or objects in Singapore.” [Amended end]

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 contradiction between our desire for a cutting-edge economy and our attachment to archaic social attitudes. 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 rank and 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.”

13 Responses to “Constitutional challenge to 377A to go ahead”


  1. 1 CY 23 August 2012 at 13:56

    Seems like M Ravi has been extremely busy.

    I actually agree with many of the causes he is championing – I am all for gay rights, tne end of the death penalty, etc.

    However, I do have one question. Who are these people that he is representing in the court cases? What do they think about being the center of all this attention? In a way, they are being made into symbols or representatives of the cause.

    Are they going in with their eyes wide open?

    I certainly hope so…for I believe that compassion has to start with the individual.

  2. 2 Roy Tan 23 August 2012 at 16:04

    To understand the origin and history of Section 377A thus far, please read this article I wrote on SgWiki: http://sgwiki.com/wiki/Section_377_of_the_Singapore_Penal_Code
    Tan Eng Hong is the ideal person to contest the constitutionality of Section 377A in the High Court, an endeavour which may incur huge costs because he hardly has any assets and declaring bankruptcy is a viable option. The State will not get a cent from him via garnishments because whatever salary he earns will be meagre and necessary for his basic expenses.

  3. 3 Jake Tan 23 August 2012 at 16:14

    Hope that the result is not a forgone conclusion — ie. state wins. If that is the case, it would be saying that the Constitution means nothing. The govt might as well be ruling by fiat.

    In which case, it would be interesting to see what “Emperor’s new clothes” type arguments would be used to justify maintaining 377A.

  4. 4 GoonDoo 23 August 2012 at 16:23

    Alex, i agree with your conclusions. Every politician, even The Lady in Myanmar, knows when to not stick out their necks for the cause of a minority that could alienate them from the ‘majority’. This silly statement by ministers that s377A will stay but not be proactively enforced is the kind of cowardly ‘leadership’ that the PAP provides on issues they see as being ‘non-core’ issues. But at least the PAP talked about it. The WP is worse. The irony is that only LKY so far has been pretty bold in what he says about the cgay comunity.

  5. 5 goop 23 August 2012 at 16:58

    Well, I hope at the very least, someone attempts to apply for a permit to raise funds for Tan Eng Hong. If it gets the green light, I’m sure there will be generous donations. I will be one of them for sure.

    • 6 Ian 24 August 2012 at 10:35

      The application has to be submitted to the state, the state has a conflict of interest to this cause. Do you think it’ll be approved? Its not just that this a sexual minority thing, it also involves another problem that the state has been trying to curb for a long time, which is its citizen starting to speak up or take action against injustice.

      But i’m sure we could give him a big(i mean VERY BIG) ang bao during chinese new year, not against the law.

  6. 7 Chris 23 August 2012 at 17:20

    One fact that might make judicial review a positive thing is that oftentimes judges can go where politicians fear to tread. If 377A is reversed in the courts, then the government can say, “The judiciary has spoken and we must abide by their decision.” Thus, no vote in Parliament. As you say, neither party in Parliament is eager to vote to abolish 377A. So letting the judiciary do it takes the heat off the politicians. This is what happened in the United States–many states had laws criminalising gay sex. Then the Supreme Court said that such laws were unconstitutional. So in states like Mississippi, where no politician of either party would wish to vote to decriminalise gay sex, the job was done for them by the US Supreme Court.

  7. 8 Anonymous 23 August 2012 at 22:38

    If I’m not wrong, you only need a permit for fund-raising if it is conduct in the public or house-to-house. If it is done throug media, eg Internet, it is not required.

    http://www.charities.gov.sg/charity/charity/viewFundRaisingPermit.do

  8. 9 ahlong 24 August 2012 at 01:26

    I think this is an important step in the right direction. Why discriminate citizens by their gender? 377A does not apply to lesbians. As a society we wont want to encourage gays but if there are gays in our society, then they too should be protected by the Constitution.

    • 10 Jake 24 August 2012 at 18:43

      @ahlong, what does “encourage gays” mean? Do you think that a straight person can be made a gay or a gay person must not be encouraged to express his natural inclination? Rather curious on what you might be implying?

  9. 11 octopi 28 August 2012 at 04:17

    I’ve made the case before that on big issues like this, the government has to “lead from behind”. The US indirect intervention in Libya, largely successful, provides a good model of “leading from behind”. As opposed to Iraq, which was “leading from the front”.

    But there is a very good chance that a court case like this could change the mindsets of a lot of people, and pave a way for a lot of people to rethink their attitudes. This could also be a case of testing the waters to see how the public reacts to this case. It would be a very good thing if this leads to a positive outcome.

    I hope the outcome won’t be: “No, I won’t grant you a fair hearing. OK, I’ll grant you a fair hearing, No, there will be no repeal. Case closed. Fuck off.”

  10. 12 Jeff Wong 7 September 2012 at 17:29

    I thik it quite telling that our CJ has been changed to Menon in just 6 short years – the shortest term of any CJ in Singapore.

  11. 13 will 28 October 2012 at 02:36

    A day that the shameful 377A code continues to stand, a day where no proper anti-discrimination laws are in place to protect LGBTs (and especially the Ts who experiences the most staggering discriminations in our archaic society), a day where the poor are exploited and no minimum rights are in place; a day it continues the fact that screwed up Singapore is unworthy of patriotism, of being defended in times of wars, and NS is simply a big waste of my time.


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