Archive for the 'society and culture' Category

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.”

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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?

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’

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?’

About 64,000 naturalised citizens between 2000 and 2010

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About 64,000 persons became naturalised Singapore citizens in the decade between 2000 and 2010, my calculations show. About 50,000 of them would have been be old enough to vote in the 2011 general election, making up about 2.3 percent of the 2,211,102 registered electors in that year. Some readers may consider 64,000 an alarming figure, others would more likely say this is quite ordinary for a city-state that has always been open to migration. There will even be some who, objecting to the high influx of foreigners, consider my estimate unbelievably low.

Certainly, the government considers this a very sensitive piece of information seeing how they steadfastly do not release the numbers. I had to sleuth through the census figures of 2000 and 2010 to make this estimate.  Continue reading ‘About 64,000 naturalised citizens between 2000 and 2010′

Time to realise we’re suffering from post-traumatic stress syndrome

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Vikram Khanna’s review of the book Hard Choices: Challenging The Singapore Consensus (Donald Low and Sudhir Thomas Vadaketh, with contributions from Linda Lim and Thum Ping Tjin, NUS Press) has gotten me to write after — deep apologies — a long break. My thoughts have also gathered as dread mounts over the likely onslaught of propaganda next year marking the fiftieth anniversary of the Singapore state’s caesarian birth. I will explore here the ways in which we continue to be traumatised by those beginnings.

More common than the belief in God is the opinion in Singapore that the PAP government is more focussed on economic growth than anything and everything else. Some speak of this focus as understandable; others would describe it as a curse. Few outside of government see this obsession as an unalloyed good thing.

What I have found interesting is how infrequently people choose to explore where this focus (or pathology, if you wish) sprang from. Like mental illness, we have a tendency to take it as something whose origins are beyond our understanding. It just is. It may not be easy to live with, but who knows how such demons of the mind came to roost? Continue reading ‘Time to realise we’re suffering from post-traumatic stress syndrome’

On academic responsibility

Guest essay by Liew Kai Khiun

In May 2013, Harvard Professor Niall Ferguson caused a storm by attributing the limitations of the premises of the theories of the prominent economist John M. Keynes to his sexuality where:

Speaking at the Tenth Annual Altegris Conference in Carlsbad, Calif., in front of a group of more than 500 financial advisors and investors, Ferguson responded to a question about Keynes’ famous philosophy of self-interest versus the economic philosophy of Edmund Burke, who believed there was a social contract among the living, as well as the dead. Ferguson asked the audience how many children Keynes had. He explained that Keynes had none because he was a homosexual and was married to a ballerina, with whom he likely talked of “poetry” rather than procreated. The audience went quiet at the remark. Some attendees later said they found the remarks offensive.[i]

Continue reading ‘On academic responsibility’

Is Lawrence Khong’s battle flag for victory or for show?

It’s difficult to make sense of what Pastor Lawrence Khong is trying to do. In the past few weeks, he’s taken the lead in attacking the Health Promotion Board (HPB), and now the Health Minister Gan Kim Yong, over the HPB’s FAQ on sexuality. Khong accused the HPB of disseminating a message that “condones same-sex relationships and promotes the homosexual practice as something normal”.

When Gan answered a parliamentary question from Lim Biow Chuan (PAP, Mountbatten) in a manner not to Khong’s liking, Khong turned his guns on the minister too. You can read Gan’s parliamentary reply here. Lim, in case people have forgotten, gave one of the most homophobic speeches in Parliament in 2007 when Section 377A, the anti-gay law, was debated. Continue reading ‘Is Lawrence Khong’s battle flag for victory or for show?’

Not at taxpayers’ expense

I had a sense of deja vu when Law Minister K Shanmugam said that allowing migrant workers to challenge deportation orders through the judicial process would mean that  “every foreigner is entitled to stay here at taxpayers’ expense, housed here at taxpayers’ expense” (source), while the cases wend their way through the courts.

The same “it costs too much” argument was regularly deployed by supporters of the death penalty in previous years. It goes along these lines: society should not be burdened with having to feed and clothe a prisoner on a life sentence; it’s more economical to hang him. However, the government itself did not, to my knowledge, use this argument. It came from various members of the public. Continue reading ‘Not at taxpayers’ expense’

From words to deeds, attention to detail matters

I see bad English all over Singapore, but because I don’t want to sound like a language Nazi, I hold myself back, seldom writing about it. On the other hand, I don’t think I need to be apologetic about it. Getting language right takes the same attitude — attention to detail — that stands a person in good stead. More generally, a culture or economy that devalues the striving for excellence shortchanges itself. I sometimes think a widespread neglect of language quality in Singapore reflects a neglect of perfectionism, which shows up in a myriad ways from train breakdowns and bus delays to stark gaps in the social safety net. Continue reading ‘From words to deeds, attention to detail matters’


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

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