So now, the constitution’s the problem?

Bad 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.

In dismissing their challenges, Judge of Appeal Andrew Phang, who heard the cases together with Justices Belinda Ang and Woo Bih Li, emphasised that the finding would not impact the freedom of individuals and groups to practise their values within the boundaries of the law. This freedom, however, “cannot … extend to an insistence by a particular group or individual that its/his values be imposed on other groups or other individuals”, he said.

Justice Phang noted the “vexing difficulty” in dealing with the extralegal considerations surrounding the topic, but highlighted the “utterly vital” role of the apex court as a neutral arbiter in the matter.

“All that the court can — and must — be concerned with in these circumstances is whether any fundamental rights under the Singapore Constitution … have indeed been violated. While we understand the deeply-held personal feelings of the appellants, there is nothing this court can do to assist them,” the judge said. “Their remedy lies, if at all, in the legislative sphere.”

— Today. 30 October 2014, Apex court rejects constitutional challenges against 377A

Yup. Passing the buck.

To be frank, I was never hopeful. I have long held the view that a host of structural and behavioural reasons make political courage — in nearly all parts of society from the powerful to the powerless — a rare trait. (I am also sure that some reader is going to come along and say judges aren’t supposed to be ‘political’. Ha!  If someone says this, it will only underline my point: that many Singaporeans don’t even know what ‘political’ means, or the nature of law.)

My dim view of the chances of the conjoined challenges by  Tan Eng Hong (represented by M Ravi), and Lim Meng Suang (Gary) and Kenneth Chee (represented by Deborah Barker) diminished further when I heard from others their accounts of what transpired at the Court of Appeal hearings in July 2014.

I think Singaporeans need to have a clear-eyed view of our politics. A good way to start is to compare the way this place is run with a megachurch. I think you will find quite a few troubling similarities.

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Nor is it only about 377A. If you sit back and take in the bigger picture, you’ll see that basically our constitution, as long interpreted, offers no protection for civil liberties or human rights: not freedom of speech, not freedom of assembly, not a right to transparent and accountable government, nor even a fair electoral process. The questions rush in. Is there something wrong with the constitution, the interpretation, or both? What is the overarching social and political context that makes this the reality?

What to do about it?

Those who have heard me speak in the last few years will know what I am thinking.  I believe I first broached it in Philadelphia a few years ago — the PAP member of parliament at the same event sounded shocked, but the audience clearly understood my point (judging from their comments) — and recently mentioned it again about a month ago: I don’t think we’re going to see any real progress unless the state is dismantled.

So, in a sense, how things unfold here is also going to be like what has been happening in churches. When church leaders keep insisting on an illiberal take on scripture, offering no way to reinterpret it to fit the times, then brickwalling their positions with claims of scriptural inerrancy, thinking members are going to write off the church in their minds. We only need to look at the data coming out from the United States — the steady implosion of the Religious Right, the decline in membership of almost all its churches, and the rise in the number of non-believers. In the Catholic Church at least, Pope Francis can see the danger and is trying to move it in a bold new direction. He knows that a break with the past is essential.

Few Singaporeans may say it the way I do, but my guess is that it’s because we haven’t yet found language that we are comfortable with to explore this topic, not because we don’t (sometimes) think similar thoughts. But let’s start this way: To save Singapore, to give ourselves a future, we need to dismantle and then reconstruct the state. Perhaps we can begin with a proper Bill of Rights.