Romantic rabble v coy court

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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