Few things annoy me as much as when our nation-building press gets carried away. Today’s front page of the Straits Times has a headline “Singapore posts surprise Q1 growth”, leading a story that speaks — as breathlessly as a teenage groupie — of “good news”.

It quotes unnamed economists saying that “the numbers point to the resilience of the Singapore economy”.

Then it gives the Star Award to the financial services sector, reporting — wrongly — that it grew “about 51 per cent over the previous quarter”, before discussing other sectors such as construction and manufacturing. Of the latter, it reported that it “contracted 4.7 per cent over the year.” Wrong again. It actually contracted by 10.4 percent when measured at current prices, and contracted 6.8 percent when measured in constant 2005 dollars. These are Greek-style plunges.

As for the “surprise” in the headline,  it was only a surprise in view of the flash estimate made in early April of a 0.6 percent contraction. Nonetheless, it was excuse enough for the newspaper to megaphone its cheeriness, almost ignoring the fact that the economy as a whole showed only an anaemic 0.2 percent growth (yes, zero point two) over the first quarter of last year.

Overall, the newspaper tries to say that while there were bright sectors and dimmer ones, on balance, things are looking up. It took me no more than five minutes looking at the source data to see how slanted the news story is.

Let me explain.

If we want to talk honestly about how different sectors performed and contributed (or detracted from) the overall economic picture, we should take care to mention which are the important sectors, and which are not. Singapore’s statistics has about eleven significant sectors, of which the three biggest constitute 50 percent of our economy, value-wise. These three are:

• manufacturing, contributing about 19.5 percent,
• wholesale and retail trade, about 16 percent, and
• business services, about 14.5 percent.

Financial and insurance services is in fourth place, contributing about 11 percent by value.

In the table below, I provide the data by sector, with the sectors listed in descending order, value-wise.

You will notice immediately that the biggest and second-biggest sectors registered declines in the first quarter of 2013. This is worrying, especially when these two are also big generators of employment. Manufacturing provides employment for 14 percent of Singapore citizens and permanent residents in the labour force (“the resident labour force”); it is the second largest employment sector. Wholesale and Retail Trades provide employment for 15 percent of the resident labour force — the largest employment sector.

By contrast, the “star sector”, Finance and Insurance Services, is not only much smaller value-wise, it provides employment for only 7.4 percent of the resident labour force.

It would be much more responsible of a newspaper to ensure that its reporting of data is framed this way.

And what of the statement in the Straits Times, that financial services grew ”about 51 per cent over the previous quarter”? It is probably taken from the press release by the Ministry of Trade and Industry (23 May 2013), which said “On a quarter-on-quarter basis, the sector surged by an annualised rate of 50.6 per cent.” The key words are “annualised rate”. Straits Times omitted them. If you look at the second paragraph of the ministry’s statement, it also mentions “seasonally-adjusted annualised basis” — which tells us that it is quite a different beast from blithely suggesting that this sector was 51 percent bigger in the first quarter of 2013 compared to the fourth quarter of 2012.

—

An emerging pattern from the data adds to my concern. Real estate (including construction) and finance are the growing sectors, but those sectors which we generally think of as the “real economy” — manufacturing, commerce — remain weak. It seems to suggest that our economy is being hollowed out and skewed towards asset trading and speculation.

The Ministry of Trade and Industry itself says, if you can parse the suspiciously opaque language, the expansion in the Finance and Insurance sector “was underpinned by robust growth in the sentiment-sensitive segment and the financial intermediation cluster amidst signs of stabilisation in the external environment.”

What on earth is the “sentiment-sensitive segment”? Do they mean stock market speculation?

And what is “financial intermediation”? Do they mean commission-taking and rent-seeking?

I am reminded of what happened to Britain post-2008 financial crisis. It fell into recession and has been barely afloat since. London in the years prior to the 2008 meltdown had been a high-flyer in international finance, but few people noticed how the UK’s manufacturing and trading sectors were declining. After the financial crisis swept in, the country struggled to recover, but its other industries do not have the strength and the export-prowess to pull the country up.

Stodgy Germany, that kept its focus on engineering and innovation, is the exact opposite example.

Is Singapore going down the same path as Britain? Should we be worried?

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I have one question which I cannot answer. I hope more informed readers can help. Why is the gap between the year-on-year growth between 2005 prices and current prices so big in two sectors (“Ownership of dwellings” and “Utilities”)?  Has inflation anything to do with it?

The headline on the front page of the Straits Times (14 May 2013) said “Khaw: Town councils political by nature”.

It explains nothing.

A country’s government is also political by nature. It doesn’t mean that the government can sell the Finance Ministry’s tax-collection software to a party-owned vehicle.

That is the chief issue which the National Development Ministry’s review report on town councils and the debate in parliament (13 May 2013) failed to address.

The controversy dates to December 2012 when I highlighted the fact that town councils run by the People’s Action Party (PAP) sold the intellectual property rights to their management software to Action Information Management Pte Ltd (AIM), a company whose beneficial owner is none other than the PAP.

Right now, in the German state of Bavaria, a controversy is swirling over the fact that “Dozens of party members paid their spouses, children and parents to work as assistants,” wrote the New York Times. See article Nepotism in Bavarian Politics Creates a Scandal Merkel Could Do Without. The loophole was closed in 2000, said the newspaper, but existing employees could continue.

So here too, this is something that is legal, but saying it is legal is not the end of the matter. People at large clearly think it is unethical; thus the controversy.

The ministry’s town council review too makes the same omission, saying again and again that the AIM transaction complies with the law. In fact, the entire report reads as if someone went to town council spokespersons, interviewed them extensively, and wrote up their justifications for what they did. There is not a lot of critical enquiry into what they said.

I even did a search for two words in the 37-page document: ‘ethics’ and ‘ethical’. Both searches resulted in ‘none found’.

The report went some length to play down the value of the obsolescent software that was sold to AIM, thus arguing that town councils suffered no loss. By so focussing on the dollars and cents, the review lost sight of the principle involved.

Indeed, the review doesn’t seem to see anything wrong with selling IP rights to a partisan owner, not only in this case, but in all future arrangements.

Page 15, for example, described how the town councils decided to move to a ‘service model’ wherein “the ownership of the software would reside with an external vendor. The TCs would lease the software from the external vendor and pay for maintenance.” Then it says that AIM would “work with the TCs to understand their redevelopment needs, including looking for a suitable vendor to provide these upgrades.” (Page 16, paragraph 18). This was in reference to the town councils’ need for “third generation software”. It left open the possibility that the final vendor for third generation software could well be AIM again; there is nothing to exclude them.

Just as troubling was the review report’s gentle description of why a one-month termination clause was inserted to provide for the event of material changes in the composition of a town council. It comes right after noting that the general termination clause specified three months’ notice. See page 4 of the report.

It doesn’t at all question why material changes in the composition of a town council must necessitate a special clause providing for such a rushed termination. The reason it offers and endorses – and it probably comes right out of the mouths of town council spokesmen since this reason had been proffered by town councils way back in January 2013 – was “the vendor would have priced its bid on the basis of the existing TC and Town boundaries. However, should this change materially, the vendor could end up providing services to a TC comprising a much larger area and a larger population of residents, but is held to do so at the same fixed price”.

Anyone with half a brain would ask two questions:

1.  How much extra work will be involved? The servicing is of the software, which remains the same, and is not all that sensitive to the data load (which correlates with the number of residents)? As far as I know, AIM is not even providing the host servers or the band width.

2.  Even if there is some difference to servicing work, is the difference so material that the general three-month notice is unfairly onerous on the vendor, and a rushed termination is justified?

If you are not satisfied that the above two points justify a rushed termination clause, then you must ask, what really was the motive behind it?

This is pertinent, especially as the report itself, in a brief flicker of independence, points out that such rushed termination presents a problem of continuity. By implication, it won’t be in the best interests of citizens and residents. On page 8, it says “The review . . . have surfaced a broader issue of how to ensure continuity of services to residents in the event of a change of MPs.”

I thought this comment, at least, was interesting. Does it suggest that the terms of the contract with AIM were designed to imperil continuity should there be a change of party representing the district?

When National Development Minister Khaw Boon Wan says town councils are necessarily political institutions, is he saying that such motives are acceptable? Is he saying that politics in Singapore can be a no-holds-barred contest? That scorched-earth policies for partisan advantage is acceptable? It would be a road to ruin if this were the case.

We are left with the same questions as in December and January and still no answer.

This follows quite soon after the court date for another challenge to the same law, mounted by Gary Lim and Kenneth Chee and reported in First of two 377A challenges heard in closed court.

In the Tan Eng Hong case, there are pages and pages of arguments, but my sense, on reading them, is that the issue is being distilled to a few crucial points. And these crucial points are not specific to the “gay issue”, but will prove important to any future constitutional challenge that is based on Article 12 (the equality provision) of our constitution.

The first crucial point is the level of scrutiny. This is a somewhat technical matter, but basically, the Attorney-General’s Chambers, in defending the constitutionality of Section 377A, urges the court to accord a “strong presumption of constitutionality” to legislative acts. That is to say, statutes passed by parliament should be presumed to be constitutional unless there is absolutely nothing that can support it. The AG argues that so long as a single shred of justification can be found to provide reason for a piece legislation, even if a discriminatory one, and even if all the other reasons for it have been found nonsensical, the court must find the legislation constitutional.

Tan Eng Hong argues the court should apply strict scrutiny. This is because, he submits, Section 377A is a law that on its face is discriminatory as the “statute purports to classify an individual only on the basis of an immutable attribute” — and his submission also goes to great lengths to demonstrate that homosexual orientation is an immutable attribute. A strict scrutiny test in effect reverses the burden of proof. It is for the AG to demonstrate that it does not violate the equality provision. Tan Eng Hong as plaintiff then lays out several ways in which Section 377A discriminates arbitrarily, thus inviting the AG to disprove each and everyone of these — should strict scrutiny be the standard.

It will be interesting to see how the court decides this question of the level of scrutiny, because it will set a precedent when it comes to any other challenge on equality grounds.

The argument over the level of scrutiny is necessarily developed with very fine and technical excursions. One interesting line was taken by the AG in its submission (para 33)  when it said, in effect, that Singapore courts have never accepted that it has a role in determining “legitimate state interest”. This half-hidden line is far more important than it looks, because strict scrutiny cannot proceed if courts remove themselves from any review of legitimate state interest — precisely what the AG is trying to do. Why can’t it proceed? Because, if a court has to decide whether discrimination is justifiable or not, the court must also decide: justifiable for what purpose? Some purposes are legitimate; other purported purposes (e.g. imprisoning people because the majority think they look ugly) are not. If courts are ousted from being able to review whether the asserted state interest is legitimate, then courts can never arrive at any determination whether discrimination is justifiable or unjustifiable/unconstitutional.

Fortunately, Tan Eng Hong’s lawyer M Ravi strenuously argued that in Commonwealth jurisdictions, courts have not relinquished such a role, urging the Singapore court likewise not to.

Another major area surfaced by this case is over the question of laws purporting to further morality. The AG argues that legislatures have always passed laws in the interest of morality. When the Singapore Parliament debated Section 377A within this frame, showing that the intent of keeping Section 377A was related to morals, it was a perfectly legitimate exercise of state power.

Tan Eng Hong had two different responses to this. In his submission, he makes a case for distinguishing between incontrovertible morality and “morality”  that is not incontrovertible. Rape, slashing, poisoning and murder are examples of incontrovertible morality, but erotic gay relationships are not in the same class; it is “a particular group’s vision of morality,” he says in supplementary submission. Large numbers of Singaporeans do not consider this a moral question. Tan Eng Hong also demonstrates how even among Christian churches, divergent views prevail. Homosexuality is not a question of incontrovertible morality; that being the case, Section 377A is arbitrarily supportive of merely one view. Arbitrariness is a major reason to strike down laws as unconstitutional.

Interestingly, in his oral arguments, M Ravi was reported to have taken a new angle, and perhaps a very important one. He pointed out to the judge that the Singapore Constitution allows no morality exception to the equality provision. This is unlike Article 14 — the part that guarantees freedom of speech and association — which contains a subsection 14(2) saying that Parliament may make laws that impose restrictions in the interest of morality. This exception, he argued, only applies to the guarantee of speech and association freedom. Article 12 — the equality provision — by contrast contains no such exemption; it is absolute. This means that our constitution does not permit Parliament to pass discriminatory laws purportedly in the interest of morality.

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A little bird has just told me that Justice Quentin Loh is close to issuing his decision on the first challenge — that by Gary Lim and Kenneth Chee — which was heard in court in February. His decision may be released within this month (March 2013).

As most observers believe, whichever way his decision goes, it will likely go to appeal.

In that event, will he hold back on deciding Tan Eng Hong vs Attorney-General? It would seem logical, so that in his eventual Tan Eng Hong his decision, he can be guided by the Appeal Court’s  reasoning.

If you have time for just one chapter, read Chapter 3 on the Vandalism Act. You will not see Singapore law the same way again.

Most of us are happy that Singapore is a relatively graffiti-free city, but as law academic Jothie Rajah demonstrates through her unearthing of the parliamentary speeches surrounding the bill in 1966, the intention of this law was completely different. It was a bulldozer of a law designed to destroy an opposition party.  Through this law, ‘vandalism’ was made a cipher for opposition politics (page 74) and the aim of the law was to extinguish the Barisan Sosialis’ messaging to the people. Caning was its chief instrument.

The mid 1960s was a period in which Lee Kuan Yew and the People’s  Action Party’s hold on power was tenuous. After ramming through merger with Malaysia, the project fell apart within two years, proving Lee disastrously wrong in his political ideas. The PAP felt itself particularly vulnerable in 1966 when it offered Singapore as an R&R (rest and recreation) base for American soldiers fighting in the Vietnam War. It made Singapore into an American lackey, and reinforced the Barisan Sosialis’ anti-colonialist, anti-imperialist credentials when the party opposed American involvement in that war. But the Barisan Sosialis was already half-crippled from having its leaders detained without trial under the Internal Security Act (Operation Cold Store 1963). Nonetheless, its remaining activists tried their best to communicate with the public and the chief means of doing so was through putting up posters at many locations. Slogans such as “Yankees go home” were painted too.

The existing Minor Offences Act already made vandalism a crime, punishable with a $50 fine and/or a week in jail. But this was not considered sufficient when the objective became one of political extermination. So a new law was introduced raising the fine to $2,000 with a maximum of three years in jail. It was also made into a non-bailable offence — which is quite incredible for such a minor, non-violent offence — presumably to stop accused persons from putting up more posters while out on bail. More crucially, it made caning (minimum three strokes, maximum eight) mandatory. As Rajah notes, this breached two fundamental principles of law: the penalty is now disproportionate to the gravity of the offence; and sanguinary punishment (caning) is being used for a property offence.

I myself can see in it limned a third violation of principle — the way discretion was taken away from the courts when caning was made mandatory. This seems to me to be an early example of how courts could not be trusted to act in ways the PAP wanted, and which would progress to the ousting of judicial review altogether in the book’s later examples.

She writes:

The ‘rule of law’ principle that punishment should be proportionate, and not cruel and degrading, was violated by the Vandalism Act’s history of being, in part, enacted to ‘humiliate’ those who dare paint slogans challenging the government.

– Jothie Rajah, Authoritarian Rule of Law, Cambridge University Press 2012, page 98.

Through this case study of the Vandalism Act, Rajah introduces her readers to the key thrust of her research and book: how ‘law’ itself has been used to eviscerate the rule of law in Singapore.

Rule of law deformed into rule by law

The rule of law is a concept in which the state itself must be subordinate to law; it cannot act arbitrarily and coercively against the rights of citizens. To have any meaning,

[a] liberal concept of citizenship and the capacity for civil society to counter the state are major constituents of political liberalism, a mode of ‘politics’ which, in turn, informs the ‘rule of law’.

– ibid, page 161.

Her book thus aims to

[trace] the Singapore state’s reconfiguration of the profoundly liberal concept of ‘rule of law’ into an illiberal ‘rule by law’  through the state’s manipulation of legislation and public discourse.

– ibid, page 267.

and focusses on

state measures to silence actors who seek the scrutiny and containment of state power.

– ibid, page 46.

The example of the Vandalism Act also illustrates how the PAP government tries to maintain the fiction that there is rule of law in Singapore. The Act was passed by going through the formal motions of Westminster parliamentary democracy, but parliament at that time consisted only of PAP members. Several Barisan Sosialis MPs were detained under the Internal Security Act and the rest were boycotting parliament in protest. Furthermore, the alarmist, ideological assertions of the PAP as to the seriousness of vandalism, e.g. how such behaviour would frighten away investors and destroy any chance of prosperity, not only dominated the discursive space but were swallowed wholesale by the courts. In the case of fifteen-year-old (yes!  fifteen) Ang Chin Sang, sentenced to three months’ imprisonment and three strokes of the cane, Rajah writes:

The Chief Justice, hearing the appeal in 1967, months after Prime Minister Lee had, from Parliament, instructed the judiciary to “apply the letter of the law in such a spirit that society is able to protect itself”, is completely compliant to the state’s account of what amounts to ‘vandalism’ and becomes the tool of the state’s precept that severe punishment is the necessary response to this especially “serious”  offence.

– ibid, page 88.

The failure of courts to interrogate the use of law in such ways only allows the PAP government to get away with claiming that the rule of law exists. Rajah argues that Singapore “performs” the rule of law through judicial processes and parliamentary procedures, including Select Committee hearings that bear no relation to the purpose of such committees (which is to hear from voices outside parliament various views before passing legislation), but whose transcripts and reports reveal them to be inquisitions designed to demolish political opponents. For the latter, the book contains a vivid description, with many ad verbatim quotes, of what happened in 1986 when the Law Society, led by then-president Francis Seow, tried to speak up against an expansion of press controls.

Four and a half examples

The ‘meat’ in the book is a detailed study revolving around four key pieces of legislation: the Vandalism Act 1966, the Newspaper and Printing Presses Act 1974, the Legal Profession (Amendment) Act 1986 and the Maintenance of Religious Harmony Act 1991. There is also a brief discussion of the Public Order Act 2009, but by the time Rajah reaches this law, the objectives and strategies employed by the PAP government have become so familiar from the earlier examples, there is really nothing new left to be said.

The objectives of each of these pieces of legislation are strikingly similar. In each case, the law followed closely the rise of a new political challenge, and was designed to squash it.

• That the Vandalism Act was aimed at Barisan Socialis’ street messaging has already been discussed.
• The Newspaper and Printing Presses Act 1974 was aimed at securing control of the print media after the Chinese-language newspaper Nanyang Siang Pau began to voice the disaffection of the Chinese-educated. This statute too was presaged by detentions under the Internal Security Act; four executives of the newspaper were arrested on 2 May 1971 and held without trial.
• The Legal Profession (Amendment) Act followed the Law Society’s criticism of the government’s attempt to extend controls to foreign media.
• The Maintenance of Religious Harmony Act 1991 followed the 1987/1988 detentions of social justice activists who had the support of the Catholic Church. While the government could deal with the activists through detention without trial, it needed a less blunt, preventative instrument to deal with any religious group wanting to act on its conscience.
• Finally, the Public Order Act 2009 was meant to shut down the tiny streetside protests of opposition leader Chee Soon Juan, who was gaining (foreign) media attention this way.

Strategies

What strategies were employed by the PAP to get such illiberal legislation passed and yet maintain legitimacy? Rajah’s analysis of this question is particularly illuminating, if not entirely new. In the lead-up to each of these pieces of legislation, she found a discourse heavy with these devices:

Regularly deployed is the language of exceptional national vulnerability, used to legitimise exceptional measures that depart from norms of rule of law. The threat of communism was one, used not only in the 1960s but as late as in 1987 when the Soviet Union was on its last legs and China had turned Dengist. The “hyperbolic narratives of violence” (page 270) along faultlines of race and religion is another one that is constantly played up. It is still in use today. As well, there are assertions of perpetual economic danger.

Secondly, the actors targetted for silencing are demonised, their activities cast as being anti-national. Over time, and coupled with allegations that their activities exposed Singapore to the exceptional vulnerabilities mentioned above, anti-PAP has become reflexively seen as anti-Singapore. This demonisation is carried out through ministerial statements, dutifully printed by an emasculated press, and through performative theatre such as inquisitorial Select Committee hearings, and scripted TV interviews of detainees.

Thirdly, Rajah finds from the historical record a persistent language of infantilisation. The PAP tends to speak of citizens as incapable of absorbing the full facts or understanding the issues thoroughly. This is coupled with language that casts the PAP as protective. The result is a demand for or appeal to trust. One example she drew was from the 1987 detentions leading up to the Maintenance of Religious Harmony Act.

Significantly, the state’s account of the ‘conspiracy’ was rarely clear about the precise nature of the activities of the Catholics it detained. Instead, the focus was on the threat to the ‘nation’ that had been averted and the need for citizens to submit themselves to the state’s  authority. . . . at no point in the speech did Goh [Chok Tong] address the basic question of what the ‘conspirators’ actually did that so imperilled the ‘nation’.

– ibid, page 228.

Just as interesting is how cabinet ministers also deployed performance. In public statements following the 1987 arrests, they said the Internal Security Department had investigated those unspecified activities and

[Goh] then positions himself himself as a member of the ruling elite and presents the state’s good faith in responsibly arriving at the decision to order the ISD action: “We asked many questions.  We wanted to be very sure that the conspiratorial activities  . . . were indeed prejudicial to the security of Singapore . . . All of us were satisfied”.

– ibid, page 230.

The above conjures a picture of rule-of-law processes (checks and questioning) when the whole affair was anything but.

Fourthly, there is a tendency to leave key words and phrases in legislation undefined. This violates a ‘rule of law’ principle that laws must have textual clarity. For example, the Public Order Act targets activities that  “publicise a cause or campaign”, but nowhere does it define what might constitute a cause or campaign. It is left to the minister to determine it and cannot be reviewed by the courts. The Newspaper and Printing Presses Act speaks of “person[s] who [have] been granted the written approval of the Minister” to hold management shares, but who these persons shall be, how determined, and how approval may be withdrawn another day is left to the minister again.

The approach is one

… conceiving of ‘law’ as entirely within Parliament’s  hands and denying the role of the courts in policing, so to speak, the content of ‘law’.

– ibid, page 212.

Arbitrariness is created when such vague language is used, leaving possibly shifting definition to the executive. Courts, if not explicitly excluded from the role of judicial review by ouster clauses (which most of her examples contain) will find it hard to grapple with such vague law, even if they are inclined to. However, as Rajah points out, they seldom are.

Singapore’s statist courts accept and enforce the meanings imposed by the state.

– ibid, page 283.

Yearning for legitimacy

Today, in the sphere touching on politics, the situation has been reduced to one of ‘rule by law’. The kind of political, civil society and citizen questioning called for by the spirit of ‘rule of law’ in order to ensure that the state is subordinate to law

would be treated as a political challenge warranting extreme state coercion

– ibid, page 186.

And yet,

The state’s  attempts to closely control and manage presentations and performances of its legitimacy speak of its anxiety to be seen as legitimately ‘rule of law’.

– ibid, page 142.

This is because the PAP state yearns for the legitimacy that only Western democratic countries can bestow. And also because Singapore’s foundational documents (e.g. our constitution) use language that is infused with liberalism and ‘rule of law’. Constitutional legitimacy would become elusive should it be pointed out that the true behaviour of the PAP contravenes the intent of these documents. This may explain the care taken to attend to the performative aspects of ‘rule of law’ at least, and by this means to hide away the repeated assault on the substantive meaning of ‘rule of law’.

It is here that Rajah brings up a novel point. Very often, the PAP in its defence alludes to how Singapore’s legal and political system is descended from Britain. This is used as yet another bullet point in support of ‘rule of law’ legitimacy. But she points out that in many ways, our laws are not descended from Britain. They are instead descended from colonial rule, and colonial rule is inherently illiberal. Colonial governments did not rule over citizens; they ruled over subjects. Colonial governors did not submit themselves to election nor permit much political contestation; they enacted laws such as the Internal Security Act and the Sedition Act meant to control rebellion, and they saw themselves as the enlightened and civilised few sent here to protect the natives who could not be trusted to see their own best interests, grasp the facts or even understand the complex issues of the day.

The examples she studied and presented in her book all have a similar character. She thus argues that

The nation-state has adopted the colonial legal regime in a manner that renders the nation-state a neo-colonising entity, subordinating and infantilising citizen-subjects.

– ibid, page 279.

Left for another day

One comes to the end of the book wanting more. What might Rajah have to say about the creation of Group Representation Constituencies? In what way are our notorious defamation suits also performative theatre, meant to give the impression that rule of law operates when the meaning of ‘rule of law’ is banished by Singapore’s exceptional construction of ‘defamation’?

One also sees the same strategies that she has described in the ongoing attempts to control social media and online speech. Here again the PAP sees a new civil society force gathering momentum. Here again, the same hyperbolic narrative of racial and religious discord is deployed to demonise and isolate participants (with an added twist: the “threat” of sexual predation). Here again, one sees attempts to use executive discretion to “license” and administratively control such activities, with as little judicial oversight as they can get away with.

The stunning consistency in application of these techniques of control over half a century is depressing. The findings of her study would lend no support to those who believe that things are changing; that Singapore is “freeing up”. In fact, as she progressed through her research,

My desire to adopt a scholarly detachment from the narratives I have uncovered has been thwarted by my growing distress at the violent and repeated amputation of the protective mechanisms of ‘rule of law’ in the Singapore state’s execution of ‘rule by law’.

– ibid, page 296.

But if the PAP has no desire to change, or is incapable of change, what conclusion must we draw?

* * * * *

Added, 26 Feb 2013:

My earlier article quoted the organisers’ figure of 4,000 to 5,000, a figure they announced at least twice during the rally itself. My own calculations — which I completed only after publishing the earlier article indicate that 3,000 to 4,000 may be more accurate.

Here’s a Facebook mention of 5,000 by the emcee of the event:

They may well be right because estimating crowd size is more art than science. But here I am going to show you how I arrived at my own figure.

First, I used a satellite image of Hong Lim Park from Google maps. That’s the image above. You will see at the bottom left corner that Google provides a scale. Just in case Google’s scale is a bit off, I also looked up OneMap’s map of Hong Lim Park. It is shown below:

I have no reason to doubt the scale. Both maps show the lawn area of Hong Lim Park — bound by the inner foot path — to be about 65 metres square, with one corner eaten up by the community club’s stage.

During the rally itself, I moved around a fair bit, from the front of the crowd to the back and up the overhead bridge across New Bridge Road (far left of maps), observing the approximate density at several points. I also took a number of photographs so that I have a record of density. Two examples are below.

Photograph A (which you can click on to enlarge) was taken close to the metro station exit. It shows the back of the crowd. The footpath is visible. The tent where the rally speakers were is away to the left of the photograph. In fact you can see a gradient:  the umbrellas are denser at the left of the photo (nearer the tent) than at the right edge. In the background is the community club stage, but don’t be mistaken, the people there are not the organisers and speakers; they are the audience, taking shelter from the drizzle.  There are about 100 of them on the community club stage.

At the top left of the photo you will see a smaller group on the balcony of the community club. I reckon there are about 30 persons there.

From photo A, my estimate is that at the back of the crowd, the density is about 0.7 persons per square metre. That is, there are about 2 persons for every 3 square metres.

Photograph B (which you can also click to enlarge) is taken about 10 metres from the front of the tent.

Here, people are standing more or less shoulder to shoulder, but spaced about arm’s length from the person in front. This gives a density of about 1.5 persons per square metre, that is, about three persons for every two square metres.

The graphic below has various boxes laid over the Google map of Hong Lim Park lawn, coloured for their density. The locations of photographs A and B are marked too. The location of the speakers’ tent is outlined in blue.

The calculation below is so simple and obvious, a Primary 6 pupil can do it.

Naturally, estimating crowd size cannot be achieved with total precision. Moreover, people were coming and going (especially as the drizzle waxed and waned), so an estimate can vary depending on when the estimate is made.

One could even say that because of the coming and going, the number present at any given time is not the total who came by and spent some time at the rally.

But an exact count is not necessary. The crowd is quite evidently a sizable one, and considering that the climate of fear is not yet completely dispelled, it would be foolish to dismiss the significance of the event.

The protest held on Saturday, 16 February 2013, against the government’s 6.9 million population White Paper saw the second largest crowd ever at Hong Lim Park. Organisers estimated it to be 4,000 to 5,000, which puts it second only to Pink Dot 2012.  Walking around and observing the density of the crowd myself, I more or less agree with the estimate. More might have come if not for the drizzly weather.

With that kind of crowd size, there will be plenty of reports on social media, but nonetheless, I don’t think anyone else is going to make the observation I made: the language of the rally explains the rally.

What do I mean by that?

Okay, I arrived about 15 minutes late, so I must have missed the first two speeches, but I stayed till the end, and from the time I arrived, I noticed that all the speeches were made in English. And not just English. All were made in Singapore-accented standard English.

Of course, many other events at Hong Lim over the past four or five years have been conducted solely in English, but they tended to be niche events, drawing people concerned with a cause they identified with. This population protest was broader-based and aimed to speak for Singaporeans in general. And speak to Singaporeans in general. And yet, the event used just one language.

Pause for a moment, and think through the history of Singapore. How interesting it is that we have reached this point.

From the 1950s up till maybe the 1990s, organisers would have taken the trouble to have speeches in several languages. At the election rallies of the 1950s and 1960s for example, there would also have been speeches in two, three or four Chinese dialects. Even now, at some events, e.g. election rallies, National Day Rallies and various constituency celebrations, multi-lingual speeches are still programmed. However, it is increasingly more for form than function.

At the Hong Lim Park population protest, form was not a consideration. Function was, and it was recognised that English alone would serve.

But how does that explain the protest? It’s like this: Our arrival at a single language platform signals the gelling of identity. From separate communities of 50 years ago, each speaking its own language, the Singaporean has emerged. There is a common sense of culture and place, and it is this shared appreciation of culture and place that the Population White Paper rudely tramples over. Thus the outrage.

Or rather: thus part of the reason for the outrage.

Bread and butter issues are the other part. To put it simply, people are fed up enough about the rising cost of living (which is the other side of the coin of stagnant incomes) and congestion in transport, health and other infrastructure. They are also anxious about job competition and security. The White Paper managed to press all these red buttons in one go! The widespread fear is that an increased population load would mean increased competition for resources, be they housing, transport or jobs.

* * * * *

The speakers at the rally knew what was uppermost in people’s minds.

Tan Kin Lian spoke about “long queues in hospitals . . . and just to get an HDB flat.”

Lee Kah Jing pointed out that the White Paper’s boast about 65% of Singaporeans getting into PMET jobs is misconceived. This especially as it means we will need to import more people to do non-PMET work. “We don’t need so many PMET [among Singaporeans] if we pay a decent wage for manual work,” he said. “There’s nothing in the White Paper that reassures the bottom 20 percent that they will be looked after.”

Nizam Ismail asked the crowd: “With immigration, what do you think will happen to the income gap? What effect on prices?”

Tan Jee Say noted that “four economists . . . were highly critical of the White Paper, systematically pointing out the flaws. But we have not heard any counter-argument from the cabinet.” The real reason behind the White Paper, he said, had nothing to do with giving Singaporeans a better life. After all, it’s the same strategy as has been applied in the last ten years. And during that time, “we saw depressed wages for the lower-income groups and an increased income gap.”

“So ordinary Singaporeans are worse off.”

Several speakers addressed the question of Singapore’s economic model.

Tan Kin Lian said, “Our problem is that our economic structure is a mess. Too many people are working in banks, property, insurance, moneylending, speculating [on motor vehicle Certificates of Entitlement] for example. Too few people want to be engineers, teachers, nurses.” We’re putting people in the wrong places, he argued. If we can redistribute our human resources, “Singaporeans can fill all these jobs, so we don’t depend so much on foreigners.”

“Wages must be enough for them to raise a family, pay for an HDB flat and save for the future,” he argued.

Tan Kin Lian closed by linking the issue to the birthrate, but wasn’t specific, except to say that Singapore needs “to take a new look and find a new solution . . . so you can earn more and be able to afford to raise a family.” To encourage young Singaporeans to start families, we need to “tackle the root of the problem.”

It was Lee Kah Jing who called for a minimum wage. “We need an absolute national focus on the birthrate, not immigration. We need work-life balance, a minimum wage and more confidence in the future to start a family.”

Tan Jee Say too supported a minimum wage. Moreover, we need a “robust social safety net”, he added, one that will assure families of financial security. He suggested more state investment in education and healthcare to take the burden of costs off people’s backs. “Better to spend reserves on Singaporeans than on building infrastructure to accommodate more foreigners,” he told the crowd.

Jeannette Chong-Aruldoss spoke mainly on Singapore’s misfocus on people as economic digits. “We have lost the plot,” she said. “Instead of sustaining our national identity, our government concerned itself with sustaining GDP,” and brought in other people. She said we are not doing enough in building our social infrastructure, like caring for our elderly and those who are not as economically productive. “How are we supporting families?  How much are were doing to support Singaporeans who want to get married and have children?”

Lee Kah Jing warned that a key assumption in the White Paper may be unsound. Singapore will only be able to attract immigrants if we can pay them better salaries than they can get in their home countries. It’s not an assured prospect since the GDP per capita in Beijing, Shanghai and Mumbai is already in the range of US$8,000 to US$12,000. Immigration as a strategy for Singapore is “not sustainable,” he argued.

Nizam Ismail took issue with the way the White Paper was rammed through. “Why did the entire machinery of the state forget to consult?” he asked. He touched on the state’s reluctance to engage with civil society, but “civil society groups reflect many different aspirations of Singaporeans.” As for the state’s attitude towards social media and blogs, Nizam described it as “regrettable.” He said the government merely sees them as “noise”,  and on saying that, he turned to the crowd: “Let’s hear some noise!”

The crowd responded: “Reject, reject, reject.”

Nizam also took issue with mainstream media reports and how they reveal the “groupthink” behind the White Paper. They seem to believe, he said, that “only elites are fit enough to think for Singapore.”

It was Sem Teo who made sharper political remarks. “The fish rots from the head,” she said.

Tan Jee Say devoted a good chunk of his allotted time to explaining the numbers behind his argument that new citizens provide the People’s Action Party with a solid voting block of 5 – 6 percent. Coming here to work is one thing, but “there is no economic reason to convert them to citizens,” he pointed out.

Vincent Wijeyshingha came closest to what I was thinking. “The White Paper attacks us  in our very deepest identity,” he said, adding that it reveals two things: “One, the government doesn’t understand what it means to be an ordinary Singaporean; two, it does not seem to care.”

“Our fear of being displaced from our own homes is as old as humanity itself. We feel betrayed that those whom we trusted to look after us now close their ears to our apprehension, our worries and our fears.”

However, he devoted the bulk of his speech to arguing against turning xenophobic. All human beings have the instinct to be safe, to belong and to be fed and clothed. Not just Singaporeans, but foreigners who come here to seek a better life too. We should not direct our anger at them, he said. “They deserve our respect and friendship.” Instead, in opposing government policy, “we must direct our dissatisfaction at our government.”

* * * * *

How much effect Wijeysingha had is hard to say. But I can see he was very conscious that not only is xenophobia a close cousin of anti-immigration sentiment anywhere in the world, but that the lead organiser of the protest, Gilbert Goh, has a history of making somewhat xenophobic remarks.

In fact, the day before the rally, an old post by Goh resurfaced. It was an absurdly stereotypical analysis of the various migrant communities in Singapore. Mainland Chinese are like this, Filipinos are like that, Myarmese [sic] are like that . . . and so on. They were nowhere near to being hateful words, so ‘xenophobia’ would be a bit extreme as a description — at least in this instance — but the post certainly revealed a mind that saw people primarily in ethnic and national-origin pigeonholes. Several Facebookers took exception to the post and he took it down quickly, with apologies added.

Then at the rally itself, the emcee slipped on the same banana skin when he tried to say that we should reject xenophobia. Unfortunately his next few sentences were embarrassing, to say the least; “facepalm” moments, as someone called them.  He said he had a Malay friend when young, and he “even” had Indian friends. Erm, what he described were friendships across race lines; quite a different thing from xenophobia. And what’s with “even” having an Indian friend, as if Indians are so far out that having a friend of that kind was like wow.

* * * * *

Like an increasing number of dissent events, this protest incorporated the reciting of the national pledge and the singing of the national anthem in its programme. This practice is beginning to be overdone and getting a little cheesy. However, people take to it with gusto. Like I’ve said, there is a growing sense of Singaporean nationhood. Even so, I sometimes wonder if the inclusion of these rites is to fend off accusations that dissent is unpatriotic?

Here’s a video of the national anthem at the end of the rally, from The Online Citizen:

* * * * *

Will the government be moved by this event? Unlikely. Never underestimate a ruling class’ capacity for denial.

I do think however that they were shaken by the angry responses they saw on social media, and taken aback by opposition from among their own backbenchers. But since they simply cannot see any other way ahead, they’re not about to change their minds. As for this protest, even 5,000 people on a field is something they can conveniently dismiss as yet another “vocal minority”, or “the usual suspects”.

More likely, the ministers will retreat a bit more into a sense of martyrdom. They are still convinced that they know best, but hurt that their well-thought-through plans and hard work are not appreciated. “We will go down fighting, let history be the judge” is an easy cry to adopt. It has the benefit of preserving pride while mitigating the need to think again.

As much as this protest, with its exclusive use of English, is a marker of the times and a window into an emerging sense of Singaporean nationhood, the government’s acute difficulty on this issue is also because of the times. In the early years of Singapore’s independence, economic survival was of paramount importance. People didn’t mind being treated as economic digits so long as the government delivered the goods. The government thus developed the habit of thinking in crude economic terms. They saw their job as one of pushing technocratic buttons here and pulling financial and immigration levers there.

But along the way, people changed. Their priorities changed: values, community, identity, culture, history and place became important too. And the government’s habitual way of doing business became ill-suited to today’s aspirations and sensitivities. The people were speaking a new language while the government only had the old.

The first of two cases challenging the constitutionality of Section 377A of the Penal Code was heard today in the High Court. Referred to here as Chee and Lim versus Attorney-General, the plaintiffs were Kenneth Chee Mun-leon and Lim Meng Suan. They were represented by Peter Low and Choo Zheng Xi.

The court was not open to the public; it is not known who applied for the court to be closed. I only know that the plaintiffs did not.

I have not yet seen transcripts of the oral arguments, but can only rely on the written submissions. However, oral arguments tend to follow written submissions closely. The longish article below outlines the key arguments deployed.

Section 377A says:

Any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to 2 years.

Plaintiffs’ case is that this law is void, being contrary to Article 12(1) of the Singapore Constitution, which says:

All persons are equal before the law and entitled to the equal protection of the law.

The plaintiffs argue that Section 377A is unconstitutional on two grounds: Firstly, that it is “so absurd, arbitrary and unreasonable that it cannot be considered good law”; secondly, that it fails the generally accepted two-stage test of constitutionality when discrimination is alleged.

Absurd, arbitrary and unreasonable

Citing a previous ruling from the Privy Council, it is argued (in paragraph 48) that any legislation or executive action that perpetuates “inequalities […] on a substantial scale” or which exhibit “deliberate and arbitrary discrimination” will fall foul of the Equal Protection clause.

Paragraphs 52 to 69 make the case that homosexual orientation is not a chosen facet of one’s being. “It is therefore absurd, arbitrary and unreasonable for the government to continue criminalising what is, for all extents and purposes, a practically immutable characteristic. It brings the force of the criminal law to bear against individuals for something they cannot change. This can only be absurd.” (Paragraphs 70 and 71). Even members of the government have accepted that it is an immutable characteristic, the submission points out.

Paragraphs 72 to 84 point out that what is meant by the words “gross indecency” in Section 377A is unclear, citing various cases and judges’ observations from the past. It is bad law when the scope is overly broad and variable.

Enforcement is also highly variable, as pointed out in paragraphs 85 to 90. “There is absolutely no clarity as to the circumstances in which [377A] will be enforced. The government acknowledges and admits this” (paragraph 85). In 2007, no less than the prime minister said, “It is not legally neat and tidy”.

Section 377A attempts to legislate morality in an arbitrary and discriminatory manner, say the plaintiffs in their submission. Paragraphs 91 to 108 discuss the impermissibility of trying to legislate a majority’s view of morality upon a minority, citing many legal judgements from around the world. To begin with, Section 377A “criminalises private sexual relations between consenting adults absent any evidence of serious harm,” it says in paragraph 91. A substantial discussion then follows, citing many reports and judgements concerning the need to refrain from allowing the majority to “use the power of the State to enforce [their] views on the whole society through operation of the criminal law.”

Citing a court in the Philippines, it argues that “moral disapproval of an unpopular minority – is not a legitimate state interest that is sufficient to satisfy rational basis review under the equal protection clause” (paragraph 105).

It also notes the glaring inconsistency in 2007, when Section 377A was retained in the Penal Code.  “Numerous Members of Parliament pointed out the glaring and selective legislation of morality” when parliament simultaneously legalised adultery which most Singaporeans considered immoral.

Section 377A also causes tangible harm to a segment of the population. Homosexual men are distanced from healthcare and outreach with respect to HIV/AIDS. The stigma created by the law creates psychological damage in subject persons. They also suffer socially when the law “reinforce[s] the misapprehension and general prejudice of the public and increase[s] the anxiety and guilt feelings of homosexuals” (paragraph 129). By making it difficult for exploited gay/bisexual men to approach law enforcement for protection, the law leaves them particularly vulnerable to blackmail.

All the above support plaintiffs’ contention that Section 377A is absurd, arbitrary and unreasonable.

Section 377A fails the two-stage test of constitutionality

It is generally agreed that the constitutionality of any law under which discrimination is alleged is tested under a two-step “reasonable classification” test: whether “(1) the classification is founded on an intelligible differentia; and (2) the differentia bears a rational relation to the object sought to be achieved by the law in question” (paragraph 144). Plaintiffs’ case is that Section 377A fails both tests. They argue that it is muddled as to what it criminalises and as to when it is enforced, except that it singles out gay men; but even so, singling out gay men does not achieve the stated objectives of the law. The immediate objective may be to prevent the occurrence of homosexual acts, but also, as seen from the parliamentary speeches in the debate of 2007, to avoid causing offence and polarisation in society, and to reflect societal conservatism and preserve family values (paragraph 145).

With respect to the first step (Is there intelligible criteria?), plaintiffs argue that “it is completely unclear as to what the definition of ‘gross indecency’ is” (paragraph 148). Moreover, citing previous cases, “consent is not even necessary to trigger the offence”, nor is physical contact. More recently, the executive seems to be saying that Section 377A now covers homosexual sodomy, after Section 377 — the provision that addressed sodomy (both homosexual and heterosexual) — was repealed, “despite that not being [377A's] original intent”.

“Reading a prohibition on sodomy into a provision that was never intended to encompass sodomy, and which does not specifically prohibit sodomy, contravenes principles of interpretation adopted by the Singapore Courts,” say the plaintiffs (paragraph 83).

Chee and Lim argue that Section 377A “is thus over-inclusive as it captures a whole range of actions that is so ill-defined and amorphous that it could, conceivably, even include the holding of hands in public” and yet that it “is under-inclusive as it only criminalizes male homosexual acts and not female”. (paragraph 151).

In sum, there is no intelligible differentia, failing the first stage of the two-stage test.

What can be inferred from the legislative record as to the object of the law? Clearly, the main intent “is to prevent homosexual acts by criminalising them.” However, from the parliamentary speeches in the debate of 2007, particularly, from the minister moving the bill and the prime minister, one also discerns two other objectives: the first is to not cause offence and polarisation in society, the second is to reflect societal conservatism and preserve family values.

The object of criminalising consensual sex between two men is illegitimate, as discussed above. It is an extension of a desire to impose sectional moral values by law.

But “continued retention of [377A] does not achieve the legislative object of reducing offence and polarisation” either (paragraph 156).

In fact, the very retention of 377A at the same time that 377 was repealed was what caused greater polarisation. “Far from reducing the level of societal disagreement… the continued retention of [Section 377A] has escalated the level of opposition as well as support for repeal and retention” (paragraph 158).

Nor is there any evidence that keeping this law will strengthen or preserve stable family values, or conversely that decriminalisation will have a negative impact on family values or encourage homosexuality (paragraph 163). In fact, forcing homosexual men to get married to the opposite sex in the interest of conformity plants the seed of familial instability. Moreover, the “stability of the family also has to be considered with reference to the psychological well-being of homosexual men, who are brothers, sons and uncles to other members of society. The psychological stigma, confusion, societal opprobrium and isolation visited upon homosexual men cannot in any way be said to be a positive development for family values” (paragraph 165).

The plaintiffs therefore argue that Section 377A fails the second stage of the two-stage test.

Other parts of the submission

The submission also discusses in considerable detail the  historical context. Section 377A was incorporated into our Penal Code in 1938, but it is based on the ‘Labouchere Amendment’, Section 11 of the UK Criminal Law Amendment Act 1885, which in turn, say the plaintiffs, is based on “ecclesiastical Western, Judeo-Christian opposition to homosexuality”.
37.

And in a final section (paragraphs 178 to 207), it ranges over many judgements in foreign courts and reports from multinational groups. While Singapore courts are not bound by them, much of the reasoning expressed in those judgements and reports would be helpful in clarifying and weighing the issues.

The plaintiffs ask that the court interprets our Constitution in a manner that accords all citizens “meaningful protection of fundamental rights” and to ensure “effective safeguards against the abuse of majority power” (paragraph 32).

* * * * *

Defendant’s submission

The Attorney-General also made a written submission to the court. In it, he argues that the differentia in Section 377A is intelligible. “The differentia is based on gender,” he says. Men are caught by the law; women are not (paragraph 8).

He then argues that “as there is a strong presumption of constitutionality attaching to legislation, [plaintiffs have] not shown that the differentia bears no rational relation to the object of s 377 A” (paragraph 9).

Much of his argument relies on the presumption of constitutionality, shifting the burden of proof onto the plaintiffs. At paragraph 14(c) he also underlines that plaintiffs must demolish every possible justification for the law.

This presumption comes about because the “legislature is entrusted by the Constitution with the making of decisions that balance multiple competing interests,” something that courts cannot do (paragraph 15)  and the doctrine of the separation of powers “dictates that the judiciary should recognise its co-equality with the democratically-elected legislature and not to override or frustrate proper legislative policy in its review of legislation” (paragraph 16).

The AG also disputes plaintiffs’ contention that Section 377A discriminates against gay men. He says the law “does not, on its face, apply specifically to men who identify as homosexual or gay. It equally applies to those who identify as heterosexual, or who would regard themselves as bisexual, so long as the relevant acts are committed” (paragraph 24), and that this differentiation is is a legitimate one “based on (a) public morality and (b) public health.”

It is perfectly permissible to legislate for public morality, argues the AG. Many other laws, e.g. obscene books, operate on a similar principle. There may be other areas that parliament chooses not to legislate on, but it is “a choice that the legislature has made and it is empowered to do so simply because its actions are mandated by the electorate” (paragraph 31).

In this particular case, parliament has chosen to retain 377A because “the majority of Singaporeans still find homosexual acts offensive and unacceptable” (paragraph 38). Moreover,  keeping 377A “helps to preserve the heterosexual family as the social norm. It is also a bulwark against an incrementalist homosexual agenda.”

The policy of non-enforcement is “meant to appease a variety of parties” — a balance the legislature chose to strike.

As for why Section 377A does not target lesbians, the AG says “Public morality does not target female on female acts in the same way” (paragraph 51). There was also no public demand for inclusion, nor any government initiative, he says. The AG also references a House of Lords debate from 1921 to support the argument why female homosexual acts need not be included. The constitutionality of any provision is not damaged because it leaves some people out.

In any case, the signalling function of the law is effective even when females are left out (paragraph 58). Even as it stands — with the underinclusion of females — the law has a rational relation with its objective since “it is clear that s 377A would at least ‘go some way’ in preventing the mainstreaming of homosexual lifestyles and preserving traditional family values. This is especially because, as mentioned above, s 377A has an important signalling and educative role” (paragraph 64).

Section 377A’s other objective is the protection of public health, asserts the AG. There is a high rate of transmission of HIV between men who have sex with men, but no documented instance of the same between women who have sex with women. “Based on this information, it is submitted that s 377A’s differentiation between men and women is justified based on the policy objective of the preservation of public health” (paragraph 81).

* * * * *

Plaintiffs’ response to Defendant’s submission

In response to the AG’s point that courts should defer to the legislature when the latter makes policy, balancing numerous interests, plaintiffs counter that when it comes to fundamental liberties — the subject of this challenge — “the Defendant’s narrow construction of the powers of the Court to review unconstitutional legislation is misconceived.”

Plaintiffs point out that a citation the defendant relied on to support his point that the presumption of constitutionality should be accorded to acts of the legislature should be seen in context. The full citation should read “For these reasons, a classification neither involving fundamental rights nor proceeding along suspect lines is accorded a strong presumption of validity” (paragraph 56; citing Heller vs Doe).

“This important caveat is omitted by the Defendant,” say the plaintiffs.

Yet, even applying the presumption of Constitutionality, plaintiffs say they have “adduced sufficient evidence of arbitrariness, absurdity and unreasonableness to displace the presumption of Constitutionality.”

The AG’s argument that Section 377A upholds heterosexual norms and that it represents a complex balancing of interests is sweeping, incorrect and logically unsound when “the Defendant has not provided any proof that there is an actual link between homosexual acts and family values” (paragraph 20). Nor is there any balance: “The lives of the people who hold negative attitudes are not curtailed whether or not [Section 377A] exists – they are free to hold negative views about homosexuals. However, the existence of [Section 377A] affects the lives of gay/bisexual men as amply demonstrated” (paragraph 25).

Plaintiffs also counter that when the AG asserts a policy of non-enforcement, it is firstly contrary to the facts, and secondly meaningless since declarations of non-enforcement are not binding on future ministers or even on the prosecution branch, which is supposed to act independently (paragraph 38).

Even if the law were not to be enforced, it is still absurd, arbitrary and unreasonable to impose the social, psychological and health effects of such a law upon a group of people merely for symbolic purposes.

Far from being a justifiable choice made by a legislature, the defendant’s “shifting and inconsistent attempt to justify the non-criminalisation of lesbian acts highlights precisely how arbitrary [377A] is” (paragraph 46).

Paragraph 47: “The Defendant originally argues that the public morality rationale for retaining [377A] is to signify that all homosexual acts are offensive and unacceptable, choosing to make no distinction between the Singapore population’s disapproval for male homosexual acts vis-à-vis female homosexual acts. The Defendant’s position then shifts when it attempts, thinly to justify why male homosexual acts are proscribed but not female homosexual acts.” Moreover, “The ‘reasonable criterion’ the Defendant attempts to rely on to justify this distinction is anything but. The Defendant refers to a 1921 House of Lords debate” in which the following ideas — anachronistic ‘public morality’ of post-World War I Britain — surface, and which he considers suitable for adoption as justification for the differentia:

• Women would be more susceptible to blackmail under this law than men under the equivalent provision because they have an inherent tendency to share rooms;
• There is really no need to criminalise acts of gross indecency between women because lesbians will, through a course of natural selection, become extinct;
• Proscribing lesbian acts would actually encourage people (especially the multitudes of mentally unsound) to commit the crime;

Plaintiffs describe these ideas as “mad” by today’s standards.

Most shockingly, the defendant’s attempt “to import non-existent legislative objectives to justify [377A] is incorrect and dangerous” (paragraph 53). Public health was not cited as an objective of 377A in 2007, and “the Defendant is now essentially asking the Court to proactively create additional reasons to uphold legislation”(paragraph 55).

Finally, plaintiffs argue that majoritarian concerns cannot trump constitutional protection. “The Defendant’s exposition on the fact that the majority of Singaporeans find homosexual acts offensive …  is a red herring and in reality, irrelevant to this present application” (paragraph 68) .

Should a non-People’s Action Party government take over, they are going to have a lot of problems with the ministries — this seems to be a common view expressed by many whenever I pose the question of transition.

The belief that the higher levels of the civil service have been thoroughly politicised is widespread. My friends speak of obstruction and covert undermining. “They won’t be able to trust the top two, three or four layers of the administration,” says one.

The senior civil servants “will block new initiatives, making the new government ineffective, waiting for the return of the PAP,” says another.

I’m not sure that calling the top levels of the civil service ‘politicised’ is completely apt. I think it’s more a case of the seniormost civil servants sharing similar worldviews as the PAP. This would be no accident; they’d have been selected because they shared the same worldviews. They would also be personally invested in the policies that the previous PAP minister carried out, policies that they themselves helped design. Thus, any non-PAP minister’s attempt to depart from those policies would strike them as “rash decisions”; there would be a natural resistance, one bolstered by a feeling that they’re the only bulwark left defending “sanity” and “Singapore’s best interests”.

Bending over backwards

This topic came up following the Workers’ Party’s unexpectedly strong victory in the Punggol East by-election. Party leader Low Thia Khiang was quick to downplay the national significance of the result.

“You can’t take the by-election result as one that is going to be the trend in the future,” he told reporters before the WP went on a thank you parade with new MP elect Lee Li Lian, who won with 54.5 per cent of the vote.

“It is a by-election, it is not a general election,” said Mr Low, adding that voters did not have to worry that the Government would be voted out.

Mr Low said this was why he had taken pains to stress to voters the role the WP is able to play at this stage in its development. The party is “not ready” to form an alternative government and come up with a full set of alternative policies yet, he said.

– Straits Times, 27 Jan 2013, Low: Don’t take by-election result as sign of future trend

As you can see, he was also quick to tell voters not to expect the Workers’ Party to be ready to form a government.

Even more surprising was his comment that the PAP is a “competent government”. In the course of last week, a foreign diplomat mentioned this remark to me, saying it seemed very strange for the Leader of the Opposition to be saying this. A foreign correspondent told me that in his country, you’d never find an opposition leader saying anything like this, and if he did, the rest of his party might want to impeach him.

Yesterday, Mr Low sought to inject a further dose of reality, bringing up a point that he had made throughout the campaign.

His party, he stressed, is not ready to form an alternative government and come up with a full set of policies.

Rather, at this stage of its development, it will point out problems in existing policies and offer policy suggestions.

“I think we have a competent Government… we need to allow time for the Government to work, and I hope, eventually, the policies will take effect on the ground, people’s lives will be improved and we have a better Singapore.”

He added that while the WP will keep the Government on its toes, “it’s also not productive to politicise everything”.

– Straits Times, 28 Jan 2013, By-election win not sign of trend for GE: Low, by Leonard Lim

Party chair Sylvia Lim also repeated the ‘we do not politicise everything’ statement at a conference held 28 January 2013.

Workers’ Party (WP) chairman Sylvia Lim said yesterday that she makes submissions on government policies away from the public eye, as she believes that political parties need to avoid partisan politics.

And the ministries have treated her feedback objectively, she added.

Ms Lim, an MP for Aljunied GRC, said that as political parties, “we need to constantly check ourselves to avoid getting too embroiled in partisan politics and miss the wood for the trees”.

The wood here is the people’s well-being, she added.

– Straits Times, 29 Jan 2013, Parties need to avoid partisan politics: Sylvia Lim, by Tessa Wong

Aside from wanting to temper public expectations, one of my friends had an unusual theory for this almost-contortionist bending over backwards to re-assure the PAP. He said Low and the party would be highly conscious of what happened to former Workers’ Party leader J B Jeyaretnam soon after winning the Anson by-election in 1981. The PAP saw him as the thin end of a wedge, threatening their eventual hold on power. They investigated Jeyaretnam for his handling of party accounts, charged him, disbarred him and disqualified him from parliament. Low might also be mindful that more than 20 persons were arrested and detained without trial in 1987/1988, and some of them had links to the Workers’ Party. He would want to avoid frightening the tiger again.

I am not convinced that this lies behind Low’s and Sylvia Lim’s unusual words; however, I don’t have a better explanation.

Not enough people

By contrast, the statement that the party is “not ready” to form a government is probably a straightforward, honest assessment. The party doesn’t even have enough experienced people to head all 14 ministries, let alone provide depth.

If the Workers’ Party is not ready, what more of any other opposition party?

Yet the day will come when the PAP falls and other parties take over. That said, coalition government (with the PAP) is more likely than an outright opposition victory. But even in coalition, a non-PAP minister taking over a ministry is going to face resistance.

I’ve heard some people say that by that time, enough good leaders will have joined the winning opposition party to give it the resources to take over government. This is too sanguine. Politics doesn’t move in such methodical ways. There are many examples from other countries of small parties catapulted into power after an election.

It is less of a problem when a country has experienced regular changes of government. The civil service is not much wedded to any party’s philosophy. But in Singapore’s case, one can almost say the PAP has remade the civil service in its own image through the last 50 years. Setting new directions and executing new policies will be immeasurably more difficult here.

And that’s provided the incoming party has new ideas. What is worrying is that even Low Thia Khiang admits that his party does not yet have a full set of alternative policies. Of the other opposition parties, only the Singapore Democratic Party is consistently working on developing new policies. Even so, it’s still very much a work in progress.

Bureaucratic capture

The danger with a new minister walking in to a ministry without clear ideas of his own lies in bureaucratic capture. This, I suspect, occurs even when PAP boasts of “renewal”, inserting newly-elected members of parliament into cabinet. As a comment in a previous post pointed out, how much would an ex-military general or rear-admiral know of manpower, transport or social services?

Whether of the PAP or an opposition party, a new minister will want to read up as much as possible. But who would be giving him the papers and the briefings?  The seniormost civil servants of course. By this process, the new minister is quickly inducted into existing perspectives and priorities. Before long, the minister is seen to be defending the status quo; at best he speaks only of “listening more” and “incremental change”.

If this has been damaging, time and again, to the PAP’s claim to being responsive to people’s concerns, imagine how much injury it is going to do to a non-PAP minister elected on a wave of hope.

To succeed, a changemaster needs two important assets:

• a clear-eyed view of what he wants changed, which means a prepared sense of what’s currently wrong and the direction he wants to take;
• people available to him, who are (a) like-minded or (b) not necessarily like-minded, but equally skeptical of the status quo.

It is thus worrying that opposition parties — with the possible exception of one or two — aren’t investing enough in formulating alternative policies. Without them, an incoming minister will not have a clear-eyed view of what he wants.

He will also need a pool of advisors, preferably experts in the same field as the ministry is in charge of, who can provide input and fresh perspectives. But it is hard to remove civil servants. The rules are designed to protect them from the vagaries of political change, at least in the short term, and so the new minister cannot rely on replacing uncooperative civil servants.

Then what else is he to do?

Quite obviously, he will need to ignore and bypass the obstructive civil servants. In an informal conversation I had recently, someone suggested that the new minister would need to freeze out the top two, three or four layers. The minister may need to find ways to deal directly with the fourth or fifth layer to get his wishes implemented.

More importantly, he needs to make sure he continues to get good advice. Unable to replace his top civil servants, he will need informal ways to tap outside expertise. Either directly or through his Political Secretary — from the name, you’ll know that it is a political, not civil service appointment — he will need to maintain regular contact with three groups: his own party’s think tank that develops policies; academia; and civil society. The latter two often contain people who know the issues as well as (perhaps better than) civil servants. The new minister can send to them data that the ministry has collected and ask these experts what other interpretations are possible from the data. What other solutions should be considered?

Hence, it looks obvious that to prepare themselves for the day when they are catapulted into power, opposition parties need to build trust and communication links with academia and civil society. They need to be able to draw on these pools of expertise if they are to avoid being captured by the bureaucracy soon after taking power.

I don’t really see that happening. I don’t see opposition parties reaching out.

At the same time, I suspect there is great fear among many in academia and civil society to be seen talking to opposition parties. Fifty years of PAP rule have made many people ultra-sensitive to accusations that they are consorting with the PAP’s enemies. Some might argue that as opposition parties win more votes, this fear will lessen. But the opposite argument may well apply: as the contest between the PAP and other parties intensifies to the point of winning or losing power altogether, the PAP may become even more suspicious of any academic or civil society group who gets friendly with opposition parties.

And thus is tomorrow uncertain. Even as PAP governance fails, and the need for an alternative becomes more pressing, we do too little too late to prepare for a different dawn. We spend too much time reassuring people that things won’t much change (“not ready” to take over the government, the PAP is a “competent government”), and not enough time thinking about and preparing for change.

Barely a week after Singapore prime minister Lee Hsien Loong cited opposition in France to gay marriage as a reason not to do anything about Singapore’s anti-gay law, he was shown up for his piss-scared views by the government of President François Hollande. The French National Assembly approved a key part of Hollande’s Reform Bill that will allow same-sex couples to marry and adopt children. The French showed that controversy is no excuse for inaction.

With that, the bottom fell out of Lee’s argument.

In Paris, deputies voted 249-97 last Saturday in favour. The remaining articles are being debated, but the overall bill is expected to be passed within two weeks.

In any case, Lee may not realise that despite the noise of the demonstration against gay marriage in Paris, a majority of the French public backs gay marriage. A recent poll for Atlantico.fr magazine carried out by Ifop found that 63 percent of people in France support the legalisation of same-sex marriage. 49 percent supported gay adoption.

Meanwhile in Britain, the House of Commons approved the second reading of a bill to legalise same-sex marriage. See the BBC’s report: Gay marriage: MPs back legislation. Members of Parliament voted 400 to 175 in favour.

Lee Hsien Loong said on 28 January 2013 that even in countries that do not criminalise homosexuality, “the struggles don’t end”, citing the example of a recent demonstration in Paris by those against gay marriage. (There was a subsequent demonstration in favour of it). This is not the first time that he is relying on the argument that since there are hate-spewers around, let’s not antagonise them.

“Why is that law on the books? Because it’s always been there and I think we just leave it,” said Lee, referring to Section 377A of the Penal Code which makes it an offence to have gay sex, even in private.

The myopic might argue that it is not entirely wrong for a government to sit on the fence while controversy rages. This is a very mistaken view that takes no account of the moral difference between the two positions. There is a huge moral difference between fanning discrimination on the one hand and affirming equal dignity and progressivity on the other.

Some anti-gay folks will seize on my use of the term “moral difference” above and reject my argument that equality and non-discrimination have greater worth than their opposites. They may argue that morality is grounded in religious injunction, specifically the injunctions emanating from their churches’ pastors pretending to speak for their god.

While there is indeed a form of morality that springs from religious teaching, when it comes to a secular state, that is not the morality to be used as yardstick.

The Delhi High Court, in the Section 377A case, put it best, saying that courts have to be guided by constitutional morality. These are the noble principles and aspirations enshrined in a constitution, among them equality and non-discrimination. Especially in a secular state, judges must be clear-eyed about what morality they should be guided by. Unfortunately, this is also a more subtle, intellectual argument, without the decibel power deployed by the alliance of anti-gay churches.

The worst part of the latter’s campaign is that by muscling into our politics as a religious group, it is going to do long-term damage to our understanding of a secular state. Koh Weijie has a good article on this.

* * * * *

The anti-gay crowd often put up arguments that are laughable. They are either logically flawed, contrary to evidence, circular or subjective. Push them hard enough, and you will find that many arguments go no further than a scriptural barricade.

A novel, if rather absurd argument against same-sex marriage recently surfaced in oral hearings before the US Supreme Court, where California’s Proposition 8 is being considered. Opponents of same-sex marriage argued that

1. the purpose of marriage is to ensure that accidentally-conceived children are not born out of wedlock;
2. since same-sex couples never have accidentally-conceived children, their unions cannot possibly meet this purposive prequalification for the term “marriage”;
3. therefore marriage should be reserved to opposite-sex couples.

Los Angeles Times reported this new, mind-blowing development with much sputtering: Marriage exists — for what?

But even so, it is hard to beat the reasoning supplied in a letter to an newspaper by a girl named Jasmin. Click the duck to read it.

Okay, okay, you may point out that the letter about ducks was written by a 14-year old, and we should give her some latitude. Fair enough, but I think the more important point I should make is that the arguments used aren’t much different from those used by our leading anti-gay campaigners — who are adults.

Might they be suffering from arrested development?

* * * * *

Concerned Christians may be wondering how much damage their anti-gay campaign is doing to the reputation of their faith. Leave the crazy pastors to their echo chambers, and they’d likely go all the way to making gay-hate as much an article of faith as believing in Jesus Christ.

Fortunately, there have always been plenty more Christians who are more thinking and self-reflexive. There is a range of opinions, from those who argue that the church should be fully embracing to those who make a careful distinction between moral teaching and what the law in a secular state should be free to do.

On the latter point, a recent blogpost on CNN noted an interesting finding, which illustrates this:

Forty years after the Supreme Court protected abortion rights in Roe v. Wade, a new survey finds that white evangelicals remain the only major religious group that supports overturning the landmark ruling, even though most such groups find abortion morally wrong.

Slightly more than half (54%) of white evangelicals, according to the Pew Research Center study, favor completely overturning the 1973 Supreme Court decision that affirmed a woman’s right to have an abortion. No other religious group, including white mainline Protestants, black Protestants and white Catholics, agreed with completely overturning the ruling.

In fact, substantial majorities of white Protestants (76%), black Protestants (65%) and white Catholics (63%) say the ruling should not be over turned, the survey found.

But support for keeping Roe v. Wade intact does not mean these religious majorities believe abortion is morally acceptable.

– Blog: Survey: Few religious groups want Roe v. Wade overturned despite belief abortion morally wrong. Link.

Large numbers of Christians are able to delink their moral views from what they think criminal law should say.

Others, like MP for Tottenham David Lammy (Labour) speaking in support of the bill in England and Wales, apply their Christian-based moral views in support for equality. Note particularly his remarks starting 1 minute 45 secs “Separate but equal is a fraud”, and from 4 minutes 15 secs.

This only shows that the pastors and others leading the current campaign over 377A do not have a monopoly of Christian interpretation. Unfortunately, they are getting so vocal, they drown out others from their faith with differing views. They’ve managed to frighten our prime minister so much, he’s running around with a flapping bottom.

In the executive summary of the Population White Paper and on page 32, it says:

By 2030, the number of Singaporeans in Professional, Managerial, Executive and Technical (PMET) jobs is expected to rise by nearly 50% to about 1.25 million compared to 850,000 today, while the number in non-PMET jobs is expected to fall by over 20% to 650,000 compared to 850,000 today. Overall, two-thirds of Singaporeans will hold PMET jobs in 2030, compared to about half today.

This is followed by a graphic that reinforces the above:

Then a link is made between importing lots of foreigners as a condition for achieving good jobs for Singaporeans. In other words, if you want the above-mentioned desirable outcome, then accept more foreigners. Still on page 32:

To create these high-value and good jobs for Singaporeans, we need to: Remain open and globally competitive to tap on Asia’s growth …  and complement the Singaporean core with a foreign workforce.

I would caution that the White Paper uses the terms “Singapore citizens” and “Singaporeans”  to mean those who hold a pink identity card at that point in time. The terms include newly naturalised citizens, and do not only mean native-born Singaporeans. The footnote in the graphic above — “Assumes current immigration rates” – should alert you to this.

The use of this PMET categorisation bothered me. It really didn’t tell me much unless I am prepared to accept some underlying assumptions:

Firstly, that there is a certain pyramidal hierarchy of jobs and PMET jobs sit above non-PMET jobs — the latter generally viewed as low-status manual work or having to serve (yes, my gosh, serve!) others.

Secondly, there is an implicit assumption that an economy must have a largish base of non-PMETs to support PMETs. It’s sort of like having a necessary number of privates and non-commissioned officers for the officer class to lord over. This assumption is implicit in how it speaks of having to import more foreigners if a larger number of Singaporeans move into PMET ranks. But the question will then be: if a largish base is always needed, does that mean we’ll just shrug if we don’t improve productivity?

Thirdly, there is an unstated assumption that PMET jobs must necessarily pay better than get-your-hands-dirty and serve-other-people jobs. Otherwise why would the White Paper boast of more Singaporeans moving into PMET?

If I express these underlying assumptions graphically, it would be like this:

Yet all these assumptions troubled me. They suggest that our population planners are like generals preparing to fight the previous war. What if the world tomorrow were radically different? Why do we want to maintain an economy structured on old technology and rigid class lines?

* * * * *

Just on Monday afternoon, I interviewed a 24-year-old American who was passing through Singapore on an extended vacation. What piqued my interest was that since age 17 or 18, he had been taking seasonal work as a construction carpenter, building houses in northern California. He has no certification or formal training, and by our reckoning he would not be PMET; he’s “only” a construction worker.

“How much are you paid?” I asked him.

“US$18 per hour,” was his reply.

“How many hours, how many days a week?”

“Eight hours a day, five days a week,” he said. Overtime isn’t common (think: wonderful work-life balance!), but occasionally, when it’s called for, it is paid at rate-and-a-half.

I will let my readers pick up a calculator and work out what this 24-year-old earns monthly doing manual work. By comparison, the typical construction worker in Singapore (virtually never a Singaporean) makes about S$18 – $20 per day. They usually work 10 or 11 hours a day, at least six days a week, sometimes seven. Inclusive of overtime, they gross about S$600 to $1,200 a month. Those with specific skills, e.g. tiling, make around S$1,500.

And oh, by the way, the American guy has a university degree in some unrelated field, social science or something like that.

I also learned from him that on the worksite, the crew of three or four would be led by a “lead carpenter”, who is generally paid US$50 per hour. His job is to read and interpret the architectural drawings, schedule the work flow in the most efficient way and to watch for quality of work. And to teach if workmanship falls short. Rush to your calculator again.

Is the lead carpenter a PMET?

Does it matter anymore?

By this point, I think you get my message. This business of PMET or non-PMET tells us very little. In fact it speaks more of our status-obsessed culture than anything else.

What is more important is whether people, doing whatever jobs they like, earn enough to support a family of four. Why a family of four? Because that’s what is needed for a steady-state population with replacement fertility rate. So, rather than speak about PMET or non-PMET, the graph should be presenting this kind of information: Where is the threshold and how many Singaporeans fall short of it?

We should be focussed on making sure that most people, except maybe apprentices or others just starting a career, should be able to earn enough to support a family. If a minimum wage is needed to push wages up, perhaps this should be implemented. Better yet, we shouldn’t be such a low-tech, low-productivity society that needs a mountain of people at the low-wage side of the graph. We should have automated much of the grunge work, to take population pressure off this island. We’d be better off if the graph looked like this, where ALL work are compressed into a narrower income spread:

This then brings up the question of income gap, and how a wide income gap,

• leaves plenty of Singaporeans below the family line
• which reduces the Total Fertility Rate since they can’t afford children
• which drives our government to use immigration to top up the population
• which leaves Singaporeans feeling like aliens in our own country.

This should be a ripe subject for further discussion. For now however, I’ll just point out that the pertinent issues are income gap or earnings spread, and cost of living. Fussing about PMET misses the point.

* * * * *

In the last two days, our government-friendly mainstream media  are loudly featuring calls from various chambers of commerce saying: We must have more labour or our businesses will collapse. I can picture the government waving the conductor’s baton frantically, summoning up fortissimo choruses from them.

There is an old saying we seem to forget: Necessity is the mother of invention. Innovation and creativity come not when inputs and resources are unlimited, but when constraints are tight. Unlimited inputs merely allow us the easy way out of carrying on as before.

When an interior designer has to work within just 50 square metres and still meet the client’s brief, that’s when he may be doing his best work. When a restaurant operator has to please the same number of customers with two fewer servers, that’s when he starts to look critically at his processes.

In contrast, our current approach implies this opposite reasoning: because it is hard to get productivity improvements to grow businesses, we need to open the spigot of foreign labour. May I suggest that it is because we open the spigot that we aren’t getting productivity improvements?