So now, the constitution’s the problem?

pic_201410_16Bad news this morning. The Court of Appeal, Singapore’s highest court since we abolished appeals to Britain’s Privy Council, has ruled that Section 377A of the Penal Code is not unconstitutional. Section 377A criminalises sex between men, and is the key piece of legislation that justifies a plethora of other rules and regulations that discriminate against gay people.

I haven’t had time to read the 100-page judgement — thus a short post today — but snippets reported in the press this morning, such as this below, suggest that it is going to be a screamer, crying out for deconstruction.

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

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

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

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

Yup. Passing the buck.

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

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

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


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

What to do about it?

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

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

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



36 Responses to “So now, the constitution’s the problem?”

  1. 1 James 30 October 2014 at 13:04

    Dismantle the state? That’s not constructive criticism and you will provide more ammo for the porlumpars to shoot you down. A better suggestion is to remove PAP with our votes.

    Why it can’t be done? It can be done. Be the change you hope for by making a move, putting yourself up as a candidate in the next general election. But your obsession with 377A will be your achilles heel since the electorate on general, are not smart people who can see what you can bring to the table compared to those greedy PAP candidates whose only interest is to serve themselves.

    If I got a choice, I will choose a gay politician than a greedy politician. But I keep seeing people who declare that they will vote in a PAP candidate instead of a gay opposition candidate. It is these people who needs to be kicked in the butt for their stupidity and hypocrisy.

    To be clear, I am not a gay. But I support your talent and what you can bring to the table in this repressive political climate.

    • 2 ybin 30 October 2014 at 20:59

      Surely you know that voting the ruling party out is not the solution to all your/our problems (real or imagined), right? Tell me which opposition party is pro equal rights, i.e., will abolish 377A if voted into government?

      • 3 James 30 October 2014 at 22:28

        I don’t know and don’t care about 377A. There are other issues like cost of living, immigration, population and transport issues that requires voting out PAP. 377A is the last thing on my mind. Honestly, if Alex Au is to push for it, I will support him. But as I said, other Singaporeans are selfish people and you won’t get support to push hard for this. Most people are still at bottom of Maslow’s hierarchy. Their immediate priority is food and shelter, not gay rights.

      • 4 meifen 31 October 2014 at 11:25

        I agree with James. Alex need to see the big picture and focus on bread and butter issues first instead of focusing on gay rights. The electorate is still having a third-world mindset to know what is best for themselves. To effect a change in freedom of speech, gay rights, etc, you need to vote in a party that will listen to you first. PAP, being ultra-conservative Christian majority, is not, and will never move in this direction. Your 377A thing will not happen overnight. Bread and butter issues first, then 377A. Don’t waste your time casting pearls before swine.

    • 5 Glenn Clary 31 October 2014 at 09:47

      That LOON who claimed that he would rather vote in a PAP SCUM instead of a GAY Opposition candidate has some loose screws up there. Who can be more disgusting then those damned Whites? Greedy, selfish, self serving! You name it! Me? I would vote any GORILLAS over those BLOOD SUCKERS! Ya… Even GAY GORILLAS!

  2. 6 Tan Tai Wei 30 October 2014 at 13:38

    The “extra-legal aspects”, surely including, fundamentally, the moral aspects, we should suppose to be the basis on which “the legal aspects” are built upon. Our written laws, we should all hope, have been meant to materialize our values, and our moral values, such as equality and justice, are primary. So how can a supreme court judgment be made to rely on only the letter of the constitution, rather than its “getting back to basics”, interpreting the written laws in the spirit in which they have been made? How can it rationally evade those really fundamental issues, dismissing them as “extra-legal” and not within its supreme responsibility to adjudicate? And once this point is conceded, then wouldn’t it follow that since the Constitution guarantees equality before the law on “issues relating to religion, race, place of birth and descent”, then it also implies that this moral spirit should be extended to apply to other spheres, such as “gender, sex and sexual orientation”? How can it reasonably be judged that, equality and justice being so basic, our Constitution can tolerate inconsistencies in our written laws with regard to its practice?

  3. 7 yuen 30 October 2014 at 16:09

    “unless the state is dismantled.”— eh, what did you mean by “state”? the idea of “state” or “nation” in the abstract? the national state singapore as it currently exists? the current “situation” (of public attitude, judiciary posture, religious beliefs, etc)?

    the criminality of male homosexuality was established in british common law; 377A codifies it; the british have since modified their legal stance, but not due to a constitutional challenge, merely to accommodate current social practice

  4. 8 ;Annonymous 30 October 2014 at 17:49

    You raise a very serious point – what fundamental human rights are really protected in Singapore? Has any constitutional challenge been successful? Not even President Ong Teng Cheong’s challenge. So what is the problem? Those familiar with the American judicial system will readily recognise that US Presidents dearly wish to be able to ‘pack’ the Supreme Court during their term of office with judges labelled ‘liberal’ or ‘conservative’. The rulings of the current Roberts court follow the expected ‘conservative’ thinking, mainly Republican. The majority are not ‘political’ but follow their conservative outlook. Judges are only human. That is really the problem. Our judges are ‘conservative’, if one has to label them.

  5. 9 Sam 30 October 2014 at 20:18

    I’ve given up on the PAP after the GE in 2011. Before that, I was still defending their policies. The first step in the dismantling the ‘state’, which I take to mean the power structure set up by the PAP for the PAP is to deny them absolute majority in parliament. In addition, to at least have a more diverse representation of views in parliament, opposition MPs in parliament should come from two or preferably three opposition parties.

  6. 10 ybin 30 October 2014 at 21:13

    I understand your frustration and understand why, at the humanist society’s talk, you said you had practically given it up. Just like you, I was not surprised at all at the outcome of this constitutional challenge. But hopefully with each struggle for equal rights, a little bit of their conscience is awakened, and over time (who knows when) they will show themselves to be open-minded and compassionate towards an innocuous minority (I am leaving ‘they’ unspecified here, given how closely your website is being monitored and lawsuits flying around. It’s scary). Or, let’s hope that the pace of change for equal rights in the outside world is quickened, so that there will soon be a stage when it would be embarrassing for change not to happen here too…

    • 11 Saycheese 1 November 2014 at 07:16

      If they had any conscience, they would not have screwed us on CPF nor allowed the GINI to widened, all without any embarrassment as they were for our benefit, of course.

    • 12 fnhh 2 November 2014 at 05:41

      Re your comment above, given how far the developed nations have progressed on this issue, it’s already very embarrassing that Singapore is still criminalizing gay men. As a singaporean living overseas (I’m living in the uk currently), I feel deeply embarrassed to represent myself as part of Singapore, especially when talking to my European friends, that Singapore government continues to adopt such an unenlightened position on this issue.

  7. 13 D 31 October 2014 at 04:25

    not sure about the phrase dismantling the state, howver I think I do know exactly what you mean.

    case in point, voting out the PAP is designed to be difficult. Despite being a constitutional democracy, Singapore is not democratic and various institutions work against the democratic process, to fix the opposituon, as you know. So the state in Singapore in many respects is designed to cement the power of the ruling party rather than serve the people. I suppose many of these aspects need to be reformed, or have their current structures dismantled and replaced with real people serving institutions for Singapore.

    For me this is the key – “institutional reform” rather than “dismantling the state”. Start with the media and bring back privvy council appeals would be a good start. And vote for parties that would reform the system itself rather than parties that aspire to just be better administrators, locally or nationally, within the current flawed state apparatus.

    I would write more but on holiday now

  8. 14 GS 31 October 2014 at 06:45

    Let me see if I understand what the learned judges are saying. Criminalizing gay sex is not unconstitutional because it is not enforced (except when they want to). If the court was to deem 377A unconstitutional it would cause distress to many sections of the public and this would be against their constitutional right not to be discomfited. I believe oral sex is in the same category. My layman’s opinion is that the court should have just said that nothing can be done until parliament acts to remove this. It would be a great act of bravery on the part of parliament.

  9. 15 Tan Tai Wei 31 October 2014 at 08:02

    That Article in the Constitution which stipulates Equality also says it needn’t be made to apply where reasonable or “intelligible differentia” exist, where equal treatment may be accorded that is “in accordance with the objective of the Law”. Although it does not state so clearly in so many words, we should read that in the spirit of Justice, pursuing which surely has been “the objective of the Law”. And Justice says that only where those “differentia” fairly “justify” (ie. make it just or fair) to discriminate in treatment (not any so-claimed “intelligible differentia”) may equal treatment be withdrawn.

    That appeal before the “Apex Court” has been precisely that being male and all that go with this sex difference in themselves, although not insignificant “differentia”, cannot fairly constitute the ground for treating male homosexuals differently from female.

  10. 16 yuen 31 October 2014 at 09:20

    so tim book (apple CEO) came out of the closet; since yesterday afternoon I keep hearing about him in news programmes, business programmes and technology programmes, and found it irritating; after reading a more detailed report in ST, I realized how artificially crafed, and how dated, it is; first, he thinks he makes a big sacrifice telling people what they already know, as if being gay is still a big deal; second, “this is my brick: actually predates even martin luther king and bobby kennedy, but goes back to “ask not what your country can do for you; ask what you can do for your country” of ted sorensen, john kennedy’s speech writer; maybe tim would like to tell Goldman Sachs that next time he goes to wall street

  11. 17 Kai 31 October 2014 at 12:31

    This is a very well-written piece of analysis, so very much after my heart. The first thought that came to mind when I read the same news snippet quoted in your article is that 377A itself is an example of “a particular group or individual [the religious, traditional moralists] imposing its/his [unscientific and irrational] values on other groups or other individuals [the LGBTs].” Such IRONY. A very CHARITABLE interpretation of this paragraph in the actual judgment is that the judge is referring to a particular example of religious groups by specifically quoting “Art 15 of the Singapore Constitution and the Maintenance of Religious Harmony Act (Cap 167A, 2001 Rev Ed)”. This “freedom” offered to religious groups to practice its narrow ideologies “within the boundaries of the law”, therefore, cannot be extended by an insistence of a particular group to impose its values on other groups. Please tell me if this reading is too generous? You can find the original judgment here:;src=judgments

    Here is an article explaining the downward trajectory and demise of the Religious Right in the US, the source of lifeblood feeding most of the mumbo jumbos, superstitions and delusions espoused by their evangelical (‘baptist’) followers here who have copied their ‘religious’ business/entertainment models and imported their culture wars to Singapore:

    I have been occupied lately and have yet to read in detail your write-ups of your court proceedings, but I applaud your courage in standing up to defend yourself. Should you be martyred, know that you will at least not lose your life and it will be for a good cause, and that it will amplify the effect of the causes you have been championing.

    PS. Can’t help but notice the guy with backpack in the same-sex kissing in Guangzhou photo is cute leh! (I am male.)

    • 18 Erica 12 November 2014 at 21:48

      When I read that paragraph of the judgement I also understood it, in the context of the paragraph, to be primarily talking about religious groups imposing on others, so was surprised as the Today article appeared to have reversed the context to make it look as though it was referring primarily to gay people.

  12. 19 Ivan Tan 31 October 2014 at 14:44

    With gratitude and thanks for your contribution always

  13. 20 Jake 31 October 2014 at 20:06

    See the following section of extracted from the constitution to know what “rights” are protected:

    14.—(1) Subject to clauses (2) and (3) —
    every citizen of Singapore has the right to freedom of speech and expression;
    all citizens of Singapore have the right to assemble peaceably and without arms; and
    all citizens of Singapore have the right to form associations.
    (2) Parliament may by law impose —
    on the rights conferred by clause (1)(a), such restrictions as it considers necessary or expedient in the interest of the security of Singapore or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or to provide against contempt of court, defamation or incitement to any offence;
    on the right conferred by clause (1)(b), such restrictions as it considers necessary or expedient in the interest of the security of Singapore or any part thereof or public order; and
    on the right conferred by clause (1)(c), such restrictions as it considers necessary or expedient in the interest of the security of Singapore or any part thereof, public order or morality.
    (3) Restrictions on the right to form associations conferred by clause (1) (c) may also be imposed by any law relating to labour or education.

  14. 21 Skye 1 November 2014 at 16:27

    I personally do not believe in the idea of ‘dismantling the state’ or pushing the current political party out of power. Neither do I believe our disappointment over 377A should be directed at the judiciary.

    I believe that change has to start from the local population actually wanting change. If the majority of Singaporeans are in favour of gay rights, or at the very least decriminalizing it (or insert in other issues such as immigration, cost living etc.), I do not see how any political party would choose to reject adopting such a policy. Political parties need all the votes they can get to be elected, rejecting what the majority wants is a sure-fire way of ensuring the party will never get enough seats to govern/legislate.

    So while I might be in favour of decriminalizing homosexual practices, I also note that a significant portion of Singaporeans may still be deeply uncomfortable with such a notion. If the majority chooses not to urge the legislature to remove such a provision or even urge the legislature to retain and enforce such provisions, how can I insist that this is not democratic? It would be highly arrogant of me to dismiss every other Singaporean who does not share my views as ‘brainwashed’ or ‘too selfish/stupid’. In the end, each Singaporean is allowed to vote for what we want. If we want change, social change should perhaps be the spark.

    • 22 yawningbread 2 November 2014 at 15:42

      You seem to be saying that no one ought to be exercising leadership. We should all wait until the ‘majority’ of its own accord (how?) comes around to the view that is hoped for.

      • 23 nom2305 2 November 2014 at 19:08

        Problem with our politics is the lack of leadership (authoritative studies) to ascertain the people’s thoughts – what affirmative actions the majority would accept and what they wouldn’t actually, then apply solutions to correct availability heuristics – that being the “legislative sphere” to lead the reforms. As for the contention on the judiciary “passing the buck”, IMHO yes, said judges are culpable of non-assertion on the “legislative sphere” to step up on understanding what’s really fair and relevant to our society today. If the Judiciary interprets the Constitution in such manner that would unilaterally deprive individuals of self-worth without being critical that the “legislative sphere” has indeed consulted the public, then it’s an instrumentation failure of the Judiciary in checking the “legislative sphere”.

      • 24 Skye 4 November 2014 at 12:48

        I don’t mean to say that no one should be exercising leadership. What I think is that the executive is perhaps just reflecting the ‘play safe’ stance on homosexuality, because there are certain religious groups who are very vocal about their anti-gay stance (the pro-gay movement perhaps has not gained as much airtime or traction, although looking at Facebook it is getting more support from the younger generations). For example, Law Professor Thio Li-Ann has written many articles published about her stand on it – albeit not specifying her Christian faith – but I suspect many will start to realize that as you read her articles. She was/is an NMP too. I also attended a lecture regarding this issue and what I got from it was that in actuality neither the ruling party nor opposition parties are particularly for/against homosexuality. But there needs to be some sort of significant stimulus socially for them to be politically motivated to do anything specifically. The older generation and perhaps the more religious in general may not be as keen, and I cannot say that just because they do not belong to my generation and have not experienced/read about the things I have, their views/votes do not count. Just my two cents worth.

  15. 25 Daniel 2 November 2014 at 04:23

    I would have liked to see the Court of Appeal take the bold step of striking 377A down, and I think this represents a missed opportunity which sets this issue back maybe a decade or two. I was disappointed that 377A is going to stay.

    That said, I’m not so certain that would have set the right precedent either. Would it have been desirable if the judiciary had struck down this law, paving the way towards, possibly, the state of affairs in the US, where activist judges appointed by powerful patrons then go about legislating from the judiciary?

    • 26 James Wright-Brown 3 November 2014 at 18:59

      I truly enjoyed your page, it is frank and sincere.
      Whenever anyone complain about some rulings, the government always put forward that that was put in in the old colononial days, but so much have changed in Singapore post colonial,we have the highest homeownership anywhere and Singapore have joined the first world. In a matured government coming to its 60th year next, it should act like adult and and not pander to ‘Mob Rules’ as its not democracy
      With respect,I don’t think dismantling the state will be helpful as it would create turmoil and hardships for all.
      I think our hope lies with the big banks and conglomerates that invest in Singapore.
      Most of them already have equalities and diversity in their companies mission statement and if they were to abandon them because they happen to be in Singapore their integrity will be challenged. Singapore cannot do without them.
      In Europe all companies have to complied with the equalities law and in America most of the states have signed same sex marriages act. Beore long we will have senior managements rom aoard who wished to bring their marriage partners here.Who is Singapore going to trade with if they pulled out.
      The falling of the apartheid system in South Africa was brought down by Multinational Banks and conglomerates. It is something that Singapore must be aware of.

  16. 27 Mok Wen Jun 2 November 2014 at 16:37

    I am shocked that even gender is not even in our constitution. This means that the government can impose laws such as women being not allowed to vote, can get discriminated in the workplace without a valid reason, get fired just because she is a female or not even allowed to drive and such laws will be valid because they do not contravene the constitution. I think that singapore’s constitution should follow the United states

  17. 28 Knn 2 November 2014 at 18:16

    I normally agreed with the writer on his excellent thought on many issues except this gay issue. I really don’t think we should encourage things that are against nature and a threat to humanity survival.

    For those who already engaged themselves in this anti nature practice, I urge you to seek treatment. For those not willing, at least just practice quietly but not to convert more people in this. God bless.

    • 29 The 5 November 2014 at 11:30

      If you are against things that are against nature, start by getting rid of all the cars in the world – they are gas guzzlers and petroleum extraction is against nature. So are all the pollutive and extractive industries which deplete natural resources.

      This so-called anti nature is actually quite prevalent in nature. Google what animals do in their natural habitat and you will be surprise to see same-sex copulation among many species.

      The biggest threat to humanity survival is more people on this limited earth, not less people. Pro-creating more people beyond earth’s sustainability is the dire threat.

      And why are you worried about gay people? By the very nature, they won’t reproduce the next generation.

      And they are God’s creation. God bless them.

      • 30 Knn 6 November 2014 at 11:52

        I think you are comparing apples with oranges. Just think if everyone is gay then what happen? A small number like what I wrote is acceptable but don’t actively go convert more people. It’s against nature. The law is there to discourage the unnatural behavior. I know I will never be able to convince the gay people and if u do not want to seek treatment, at least do not drag more people into it.

      • 31 yawningbread 9 November 2014 at 16:49

        Your “just think if everyone is gay then what happen” is the kind of absurd, fly-in-the-face-of-facts argument that cannot possibly be persuasive. It’s just noise in an empty chamber. The fact is well-known: not veryone is gay, no society has ever had everyone gay. You might as well argue for a law criminalising the sun on the basis of “just think if the sun rose in the west then what happen”.

    • 32 Rabbit 8 November 2014 at 17:06

      To Knn

      Gay is not a religion, we cannot be converted nor will we be able to convert others. We are not an addiction, a lifestyle, a brand nor a trend thing. We were created by nature as much as nature has created Straight people. There is no single book in this world that teach people to become gay, and I have not seen anyone that preached “10 steps of becoming gay” or “an idiot guide of being Gay” books on any shelves.

      Gay people are as human as anyone if not by the color of religions (mostly christianity) that painted us as demon. The point is clear that even people of different religion may claimed to be more “normal” than other faith. Thus the sedition acts came into scene to protect one from discriminative the other. Unfortunately, Gay was out of the radar from such protection.

      The word “normal” “morality” and other strongly worded religious adjectives, which ironically most straight people could not themselves keep, are nothing more than self righteous, selfish excuse, by certain religious people to claim exclusive right to this living earth. As a result, the world cannot live without bloody war and the govt has approved it.

    • 33 Russel Tan 9 November 2014 at 07:24

      There are homosexual behaviour in nature. So homsexuality is not against nature but part of the diversity of nature.
      Then, the survival of the humanity is not going to be affected by the existence of a sexual minority. Heterosexuals are still going to have sex, even if you tell them not to.

  18. 34 kala 9 November 2014 at 20:13

    I just hoped that China realised how harmful it will be if the christians succeeded in christianizing this country with a great culture. As we already learned in the old testament, christianity is by nature an extremely discriminating religion. Everywhere the religion spreads to, indigenous cultures are bound to be destroyed. The same will happened to chinese culture and China really need to take great care not to allow this to happen. And China is particularly in a fragile state since much of its own culture has already been weakened due to cultural revolution and the rule of a official atheistic regime.

    From my research, the chinese authority seems to realise this and has been keeping a keen eyes on unscrupulous evangelical works in the country. The western media likes to exaggerate the extend of chinese conversion to the religion but in reality, though it is hard to estimate the number, the percentage of christians in china is still very small. More reliable estimates point to the percentage to 3-4%. Moreover, many were already aged folks who were converted eons ago.

    It looks like christianity has no chance in china, likes it has achieved in S. korea and Singapore. Although they have claimed success, churches are still packed with old folks. The chinese has rejected this discriminating religion. It don’t have a bright future in China and will never be a country with 300 millions christians like what desperate western missionaries claimed.

  19. 35 The 11 November 2014 at 14:31

    /// Knn
    6 November 2014 at 11:52
    Just think if everyone is gay then what happen? ///

    What kind of non-starter is this?

    Just think if everyone is a reckless driver like that Ferrari driver who killed himself – then what happens?

    Just think if everyone is like Hitler, then what happens?

    Just think if everyone thinks like you, then what happens?

  20. 36 kala 12 November 2014 at 20:33

    Just think if everyone is medical doctor then what happen?

    There will be no food- because noone will be farmer
    There will be iphone, iphone because no one will be engineers …etc…

    Therefore we should ban everyone from becoming doctor.

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