In his oral submission, Peter Low, arguing in my defence, took only about twelve minutes to address the allegations made by the Attorney-General’s Chambers with respect to the second article “Church sacks employee and sues government”. The written submission however was more substantial.
Peter cut to the chase which was why he didn’t need much time. In addressing paragraphs 67 to 97 of the AGCs’ written submission (dealing with the second article), he reiterated that “what is alleged is not borne out by the plain words of the contents of the second article.” Within those 31 paragraphs from the AGC, he said, the AGC relied on the word “insinuation” six times, the word “imputation” three times and the word “implication” once.
The AGC’s case was this: that I was alleging that the courts, in dealing with both the contract suit filed by Lawrence Wee against his former employer Robinsons and the application for a declaration under Article 12 of the Constitution, were motivated by bias against homosexuals. In its written submission, the AGC tendered the whole article I had written even though the main bulk of it referred to the dispute between the Faith Community Baptist Church (FCBC) and the Ministry of Manpower. The portion (the last third of the article) dealing with Lawrence Wee was this:
Lawrence Wee and Robinsons
Lawrence Bernard Wee’s application for a court declaration that Article 12 of the Singapore Constitution provides protection against discrimination on the basis of sexual orientation is equally interesting to watch. Article 12 states that “all persons are equal before the law and entitled to the equal protection of the law”.
Represented by lawyer M Ravi, his High Court application seeks to anchor a ban on workplace discrimination of gay men and women.
Wee, 40, had previously brought a suit against his former employer, the Robinson’s retail group, in December 2012, claiming to have been harassed into resigning because he is gay. Argued on purely contract grounds, he lost the case. More background on Wee’s deteriorating relationship with a new acting CEO of Robinsons, leading up to the loss of his job, can be seen in an article in Fridae, dated 23 August 2013.
I don’t have high hopes for this new suit, mostly because my confidence in the Singapore judiciary is as limp as a flag on a windless day, but I bring this up because, like the FCBC case, it too raises the question as to where to draw the line between a job’s demands and private autonomy. In fact I think Robinsons was wrong to make life so difficult for him that he had little choice but to resign (but the court found Robinsons right), while the church could have been right to sack the female employee (but the minister found that the church was wrong).
To what degree an employer can impose certain demands or expectations on the private behaviour of employees is a very touchy question. In the interest of liberty, any imposition has to be as narrow as possible. This, however, is not the same as saying there can be no demand at all.
Persons who represent an employer can clearly hurt the employer’s interests through misbehaviour. Some kinds of misbehaviour, the public can reasonably be expected to be able to see as within a private sphere and employers should not get too alarmed about it impacting their brand or message. But other kinds of behaviour may be too difficult for the average outsider to tease out from the employer’s interests.
Let me give you a few examples:
Boon Tuan is hired to help the Health Promotion Board spread the no-smoking message to teens and young adults. His job involves doing roadshows and appearing on media. He is discovered smoking while clubbing when off-duty.
Cynthia is a senior researcher in a cosmetics company that takes great pride in a “no animal testing” policy. She is revealed as a serial abuser of neighbourhood cats.
Lesley is a teacher in a private primary school. Social media soon has pictures of her in soft-focus erotic poses, released by a jealous ex-boyfriend.
We don’t have to debate the details of each of the above examples, but I think readers can sense that like it or not, there is a line somewhere. When one takes on a job, one accepts that it comes with certain implied behavioural expectations — they don’t have to be written explicitly into contract. Breach of these expectations would render one either unfit to do the job, or would so damage the employer’s interest, brand or message, that termination would be entirely foreseeable.
Lawrence Wee’s sexual orientation is completely unrelated to the job he was hired to do. While I haven’t yet seen the details of the judgement in his suit against unfair dismissal (is it out in the public realm?) I can’t understand how the court arrived at the decision it did.
But when a church hires someone to be a marriage counsellor then one’s own marital life cannot be said to be unrelated. You may disagree with the Faith Community Baptist Church’s teaching on marriage but that is beside the point. The employee knew what that teaching was and must have known that the job involved being credible when imparting such marriage guidance. By this measure, I am not convinced that the minister was right in saying the church had no sufficient cause.
The AGC took issue with the sentences emboldened above.
Chief Prosecutor Tai Wei Shyong argued that those words suggested “ulterior motive” on the part of the court and that the court would “resort to manipulation when it comes to cases involving homosexuality”. (I was trying to write as fast as he spoke and may have lost a word or two along the way in quoting him here).
He said the third emboldened sentence suggested that the court applied “extraneous considerations” in deciding the case.
Although Peter Low argued that the AGC’s case was extremely weak and therefore did not devote much time to rebutting it in oral hearings, a fuller defence was presented in written submission which extensively referenced my affidavit.
With respect to the “limp as a flag on a windless day” comment, my lawyers’ submission pointed out that I devoted several paragraphs in my affidavit explaining the objective basis for my opinion. First, I had argued in my affidavit that it had to be contextualised to the specific matter at hand: Lawrence Wee asking the court to declare that Article 12 of the Constitution (which guarantees equality before the law) extends to matters of sexual orientation. Obtaining such declaratory relief would in effect compel Parliament to pass anti-discriminatory legislation. I wrote that in my view, such an attempt was a “bridge too far”.
My understanding is that in some jurisdictions, constitutional protection for LGBT persons came from reading sexual orientation into the meaning of the word “gender” when “gender” was already a protected class in the constitution. I am aware that Singapore’s Article 12 does not contain this word. Without “gender” being there, I feared it was very difficult to extend that article to include sexual orientation.
Secondly, Section 377A of the Penal Code is still on the books. Without first settling the constitutionality of this, it seems premature to expect a court to require the Government to legislate protective legislation on the grounds of sexuality.
Thirdly, more than one law academic at the National University of Singapore has pointed out to me that in over forty years since independence, our courts have only ever struck down one piece of legislation as against the constitution. Not being a lawyer myself, not actively following every significant case at the Supreme Court, I cannot know for a fact if this is true, but since more than one law academic has told me this, I have good reason to take it on faith that it is true. These law academics said what they said with the implication that Singapore courts tended to defer to Parliamentary supremacy when an issue related to legislation.
Fourthly, I am also aware that about 25 years ago, judicial oversight over detention without trial was largely taken away, or at least very heavily circumscribed, through legislative acts. And in all this while since, the courts have not overturned this serious reduction of their powers.
I therefore hold a view that our courts see their role as being restricted to interpreting the Constitution, rather than legislating in place of Parliament. This being the case, I could not see any likelihood that they would grant Lawrence Wee the application he was seeking. To put it in another way, my confidence in the courts effectively telling Parliament what legislation to pass was very low.
This was especially in light of the fact that I was aware that the Court had dismissed Lawrence Wee’s claim for civil damages. If it was not even willing to grant him civil damages (a decision that I frankly said I disagreed with and could not fathom). I saw absolutely no prospect of the Court saying that the Government was obliged to pass anti-discrimination legislation.
I accept that judges are entitled to their view as to the correct role of the courts and the extent of their powers. But in the same vein, I consider myself entitled to my view of the Constitution, of the courts and of judges’ views of their role, formed from all these different strands, and more. I also consider myself entitled to the right of freedom of expression to express my view.
In the courtroom, AGC’s Tai affirmed that “People in Singapore are free to express views on the judiciary and administration of justice,” but he added that where views expressly or implicitly allege bias, then those views must be based on objective facts.
The court will have to decide whether my published words alleged bias against homosexual persons, and therefore whether I was in contempt.
Unreasonable and extravagant
With respect to the second highlighted sentence, Tai argued before Belinda Ang that when I wrote the words “but the court found Robinsons right”, I was alleging that the “courts have their own agenda”, and (as expanded in the AGC’s written submission) that “the Court had somehow endorsed or at the very least condoned, Robinsons’ alleged actions of making life difficult for Wee.”
He argued that I was “reckless when saying that”, perhaps with added reference to the third emboldened statement, where I added the caveat that I had not yet seen the full Court’s decision (dismissing Wee’s contract suit against Robinsons) at the time of writing.
However, I had pointed out in my affidavit — and this objective fact is not disputed by either side — that “In any case… the written judgement was indeed not available at the time. It was not released until well after I had written my article, in December 2013”. In fact too, this was after the AGC launched this contempt of court case against me (in November 2013).
Elaborating on this, the AGC continued, in its written submission, by saying, “Nonetheless, even after the release of the written judgment, Au has made no attempt to refer to or refute the reasoning given therein.” Before Ang, he repeated this point, saying, “Even after the judgement was released, he took no steps to correct the article.” His point was that this went to show that I was not acting in good faith when I wrote what I wrote.
My lawyers were ready to argue that there was nothing to amend or correct in my article because when I wrote “but the court found Robinsons right”, my words reflected the facts. The court indeed found Robinsons legally right when dismissing Lawrence Wee’s case. But I think Peter decided there was no need to belabour this point. Our written submission had highlighted how the AGC’s case “relies on a twisted misreading of Mr Au’s writings to infer nefarious connotations where none exist” (Para 108).
Peter summarised it all in court by describing the AGC’s case as a whole as “unreasonable and extravagant”.
Virtually at the start of orally arguing his case against the second article, the AGC’s side said that the “key point” was that it must be “read collectively” with the first. It was “entirely reasonable that persons visiting the blog would read both articles.”
Before I report what Peter’s response to this was, I should mention something that members of the public at the back of the courtroom might not be aware of. Peter mentioned it with the words “amendment to Order 42 statement”, but naturally the significance of these highly technical words would escape all but lawyers. These words pointed out that at the first (unsuccessful) attempt to cite the second article, in November 2013, the AGC had not urged a collective reading. It was only in the second (successful) attempt, in July 2014, that the AGC added this angle. Peter said to Belinda Ang that “I suspect it is an afterthought.”
But on the specific point of whether the court should read collectively, he argued: “One has to look at the words of each article. If one article lacks potency, if it is not offensive enough, one should not bolster [it] in light of what was said in [another] article.”
To be continued in Part 4.
(Since judgement has been reserved and the case is not totally over, please understand I will not publish readers’ comments.)