Saturday, July 25, 2009

Goodyear leaves: A bad year for PAP to call for elections?

Now that Chip Goodyear's tenure as CEO of Temasek is a non-starter, a great many questions would be flooding Singaporean minds about the non-answers provided in the official statements of Temasek.

Strategic differences? What were they? Why did they not surface earlier during the courting process? Why were they not noticed by the astute custodians of Temasek? Perhaps, the differences involved some corporate governance issues? Perhaps they involved issues of transparency? We will never know.

But, in politics, speculations are just as bad as damaging revelations. How would the average Singaporean voter react to Goodyear's departure and the return of Ho Ching? Given the losses churned out by Temasek and the complete silence on the accountability front, it is tempting to assume that the latest news of Goodyear's departure would broaden discontent amongst the electorate. I am not so sure.

One type of Singaporean is a hardcore oppositionist. Everything negative involving the powers that be is reflective of PAP's failure. Temasek, headed by the PM's wife, having its portfolio decimated by the meltdown in the financial system is just another ammunition to hurl at the PAP; just another issue to hate the PAP for.

Then there is the hardcore PAP supporter. This this type of voter the PAP can do no wrong. Official explanations are the gospel. There is nothing fishy about even the fishiest explanation provided by any person or body remotely associated with the state. The person inhabiting this fairy tale la la land is not going to be moved by the Temasek saga at all. To this person Temasek did not lose $58 billion but made a gain of $56 billion from 2003.

There are voters who would normally vote for the PAP who either don't like the PAP's style of government (but don't hate them) or are not too interested one way or another about politics. The question is whether this grouo of voters would be swayed by the Temasek winds. My guess is that they would not.

Temasek is investing peoples' money. The $58 billion can be seen as gambling away the electorate's fund. But, the hard fact is that the retrenched Singaporean worker or the recession hit small business ownwer or any other Singaporean making ends meet or failing to do so does not see the relationship between Temasek and the food at his own dinner table. If that link is not drawn, Temasek would not be an emotional spark. Temasek to many a voter would be a side show. A useful distraction. A piece of entertainment for us to mock the powers that be. Beyond that, Temasek's debacle would be of no significance.

There are some narratives firmly engraved onto the consciousness of the average Singaporean that it would take more than a shaky Temasek to cause the electoral winds to change course. As office talk and coffee shop talk would have it, Temasek is a joke. It is not yet a source of anger.

Is it a bad year for PAP to call for elections? No.

Wednesday, July 15, 2009

Pork Barrel Politics: Good or Bad?

In the run up to the 1996 General Elections, the then Prime Minister Goh Chok Tong warned voters:

"Your estate, through your own choice, will be left behind. They'll become slums. That's my message."

The PAP then issued an open letter stating: "Please remember that the PAP government cannot upgrade all estates at the same time..... Our resources are limited. Which ones to upgrade first will depend on you. If you give strong support, you will be first in line."

The US State Department had some unkind words for the PAP with regard to the latter's 'threat' to the voters.

BG George Yeo retorted by stating that pork barrel politics had a long tradition in the USA.

so, I take it that pork barrel politics is good.

In 2005, at a luncheon organised by the Foreign Correspondants' Association, PM Lee Hsien Loong said the following with reference to Japan:

“...they landed into problems because of corruption, money politics, pork barreling, and then necessary changes were not made and the country, instead of making adjustments and prospering like America, just flew straight on and went into a storm. So how do we maintain our system and not end up like that?”

so, I take it that pork barrel politics is bad.

Good or bad, pork barrel politics continues. Whereas upgrading was delayed/withheld in the past, now upgrading has been promised for Hougang and Potong Pasir residents. A little sweetener before the elections. If the stick didn't work, perhaps the carrot would?

Tuesday, July 14, 2009

Human Rights for Some Humans

I am mulling over this issue: Is it possible to advocate for human rights and yet qualify it by asserting that not all humans are entitled to rights?

The easiest answer to give to that is to say that if you do not advocate rights for all humans, then you do not in fact stand for human rights. What you stand for is rights for a group of humans or a majority of humans. So, how could you be classified as a human rights advocate.

This issue has now been articulated through NYU’s invitation extended to Pro Thio Li-Ann.

Let us consider the following hypothetical situations:

a) Can I be considered an advocate for human rights if, despite other strong views supportive of human rights, I believe that the worship of idols either in public or private should be criminalised?

b) Can I be considered an advocate for human rights if, despite other strong views supportive of human rights, I believe that the law should state that women must be homemakers so long as there is a child in the family that is below 10 years of age (failing which a criminal penalty ought to be imposed)?

Many of us would instinctively jump at the 1st example as a case of religious intolerance and an infringement of the freedom of each individual to continue as a practitioner of a particular faith. Similarly, many would jump at the 2nd example as a case of gender discrimination if the law mandates that a woman should stay at home.

We have, in our minds, classified gender, race, religion, nationality and language (amongst others) as distinguishing characteristics within the human race and that any discriminatory application of the law in relation to persons on account of those differences as an infringement of their human rights.

So, the next question is: Can a person advocate equal rights for persons regardless of gender, race, religion, nationality, language, etc., but believe in the criminalisation of homosexual conduct and still be considered a human rights advocate?

Some of us would readily assert that discrimination against a person on account of their sexual orientation is an unacceptable form of discrimination. There are others that may construct an argument that a provision like s.377A is not discriminatory towards homosexuals and that it only criminalises the ‘act’. The opponent of homosexuality does not discriminate against the individual but only the act that the individual engages in.

I came across some interesting comments at the following site:

There is an individual posting the following comment anonymously:

“jailing someone for a particular act is different from jailing someone for who he is.
an example of jailing someone for who he is would be, say, putting a jew in jail simply because he was born to a jewish parent (and not because he engaged in any particular practice).
another would be putting japanese-americans in concentration camps simply because they were born to japanese parents - not because of any particular acts they committed.
the professor's argument, as i understand it, is that certain homosexual ACTS should be made criminal - NOT that homosexuals should simply be jailed regardless whether they commit any acts.”

In response to that comment another anonymous commentator posted the following:

“Targeting a behavior that only one group; a) engages in, and b) is defined by, is fairly clearly also targeting that group.
If you make "cheering for the Yankees" illegal, even if you allow people to "be Yankee fans," then you're seeking to jail Yankee fans. It's the same reason a Florida judge found Miami's Anti-Baggy-Pants law to be unconstitutional last year, because it unfairly targeted minorities.”

The 1st commentator then posted a response, part of which is as follows:

“don't many (most?) laws target particular groups? Laws against yelling drunkenly at 2 a.m. target people who like to yell drunkenly at 2 a.m. (an activity which is not without its merits). Laws against exposing yourself in public target nudists (among others).”

In relation to homosexuals the problem that is highlighted here is that the sexual act is targeted and not the group. The 2nd commentator is of the view that where an act is done by a group and that group is defined by the commission of the act, criminalising the act is equivalent to discriminating against that group. Homosexuals fall into such a category. But, what are we to make of the rejoinder about the people who yell drunkenly at 2 a.m.

If every human activity that can be identified as being performed by a group is to be protected on account of it being discriminatory if one were to criminalise the conduct, wouldn’t all criminal activity have to be de-criminalised? To criminalise murder is to discriminate against murderers. To criminalise theft is to discriminate against claptomaniacs… etc.

But, I believe that this conduct-group association misses the point. Criminalisation of a particular conduct by the state should be undertaken on the basis of the harm that the conduct causes to others. Murder, theft, assault, etc, are examples of harmful activities that the state proscribes. Where no harm is done to another, the state ought to refrain from proscribing that activity. It is for this reason that I believe that consensual sexual activity between two adults should not be criminalised.

Let me come back to this point about discrimination against homosexuals. A law such as s.377A criminalises the conduct engaged in by homosexuals and it is a conduct by which that group is defined/classified. The conduct itself causes no harm to others. Therefore, it is not conduct that can be classified alongside theft, assault, murder, etc. Prima facie, it is not conduct that the state has an interest in criminalising.

Next: Criminalisation of a conduct by which a group is defined where such conduct does not cause harm to others would amount to discrimination against the group.
Consider the idol worship example. A law criminalising idol worship would discriminate against Hindus, Buddhists and Taoists primarily and possibly Catholics and certain denominations of Christians.
Similarly, criminalising conduct by which a homosexual is defined where this conduct does not harm anyone is discriminatory.

This then gives rise to the next question. We readily accept that discrimination on account of race, religion, language and nationality is impermissible and we see it as a human rights issue. However, there appears to be a debate over whether discrimination on account of sexual orientation raises a human rights issue. I do believe that depravation of any individual’s ability to peacefully carry out activities that cause no harm to others is an infringement of a human right. So, how does one get to be called a human rights advocate whilst not advocating for the rights of some.

I am quite curious as to how an argument might be advanced to suggest that s.377A does not raise a human rights issue. Anyone willing to venture an argument along those lines?

ON ANOTHER NOTE, Prof Thio has struck a rather conciliatory tone after the furor over her invitation by NYU. There was a law student from NYU, Jim McCurly, who posted an open letter to Prof Thio and she responded to it. The following is a small part of her response:

I was sorry to read that you were beaten up - that is never justified; and being called "faggot" is as ugly as being called "homophobe" so perhaps we will leave the name-callers to their own devices and treat each other first and foremost as human beings with intrinsic dignity. (Is that a howl of protests I hear across the cyber-waves by the usual band of demonisers? C'est la vie.)

Let me get this straight. In ‘Thiology’, it is wrong for a person to be beaten up because he is gay; it is wrong for a person to be called a ‘faggot’. However, it is perfectly right, moral and justifiable that the state criminalise consensual adult male sexual conduct carried out in private. Apparantly 2 years behind bars is far more justifiable than being called a ‘faggot’.

Thursday, July 09, 2009

I can see where you are coming from Mr Shanmugam

My suspicion is that there is a general consensus or at least a majority view in the Cabinet that homosexuality is a non-issue. Clearly, as a matter of policy they keep asserting that s.377A would not be enforced. This indicates, probably, a Cabinet view that what happens in private between consenting adults is of no concern for the state. If, indeed, this was the predominant perspective of the Cabinet, then why did they still insist in Parliament that the law should be retained?

I have a rough idea as to what might have motivated the current posture. Like many average heterosexual individuals in Singapore, I expect that Parliamentarians as well as the Cabinet members by a majority are neither here nor there on homosexuality. Many are not homophobes. Many would have no difficulty communicating or mingling with a homosexual colleague, friend or relative. But, being heterosexual, they don’t understand the marginalisation of a segment of the population on account of sexual orientation. That s.377A stands as law and that it would not be enforced appears to many to be a sufficiently pragmatic approach to deal with the situation.

The argument is: Don’t worry la. We are not homophobes. We won’t persecute you. We won’t enforce the law. Since you have that assurance from us, you need not worry about the presence of s.377A.

So, why is it that Parliament would not repeal this law? Why is it that the Cabinet would not persuade Parliament to effect a repeal? I can only imagine that in the overall interest of maintaining societal harmony and in the face of vocal positions adopted by anti-gay, pro-‘family’ interest groups, the government has erred on the side of caution by retaining s.377A on the statute books. However, since they are not too impressed with the rationale behind the criminalisation of such conduct, they have repeatedly given assurances that the law would not be enforced.

Mr Shanmugam, I understand where you are coming from. You do not think it is right to punish consenting adults for their private sexual activities. However, you think that there is a conservative segment of the population that has a sense of moral outrage vis a vis homosexual tendencies. So, the solution is: Leave the law as it is. We did not make that law anyway. We will just refrain from using it.

After the recent Delhi High Court decision on s.377 of the Indian Penal Code, Mr Shanmugam has been quoted in the Straits Times:

“We won't change the law, but how that is interpreted is up to the courts, It is not our position to tell the courts what to do."

Now, that is a useful way to attempt a rethink on s.377A. Perhaps a ‘reading down’ of s.377A is in order. Our courts could interpret s.377A in a way that would not render it unconstitutional. Note that s.377A only makes the commission (etc) of an act of gross indecency an offence. The ordinary sexual activity involving two males could be interpreted by the courts as not being acts of gross indecency.

The Penal Code:
s.377A. 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.

The Constitution:
Article 12. —(1) All persons are equal before the law and entitled to the equal protection of the law.

On that note of judicial interpretation as the way to go, I feel it would be appropriate for me to quote from the judgment in the case of Naz Foundation v Government of NCT of Delhi and others (2009):

‘The judiciary is constituted as the ultimate interpreter of the Constitution and to it is assigned the delicate task of determining what is the extent and scope of the power conferred on each branch of government, what are the limits on the exercise of such power under the Constitution and whether any action of any branch transgresses such limits. The role of the judiciary is to protect the fundamental rights. A modern democracy while based on the principle of majority rule implicitly recognises the need to protect the fundamental rights of those who may dissent or deviate from the majoritarian view. It is the job of the judiciary to balance the principles ensuring that the government on the basis of number does not override fundamental rights. After the enunciation of the basic structure doctrine, full judicial review is an integral part of the constitutional scheme. To quote the words of Krishna Iyer, J: “The compulsion of constitutional humanism and the assumption of full faith in life and liberty cannot be so futile or fragmentary that any transient legislative majority in tantrums against any minority by three quick readings of a Bill with the requisite quorum, can prescribe any unreasonable modality and thereby sterilise the grandiloquent mandate.”

Tuesday, July 07, 2009

Section 377A is a law, a decorative piece or a potential political tool?

The High Court in Delhi has interpreted s.377 of the Indian Penal Code as not criminalising consensual homosexual relations between adults for to criminalise such conduct would be unconstitutional. To put things in perspective, Singapore had already repealed s.377 in 2007. However, we do have s.377A:

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.

What is our government's response to the Indian Court's decision?

“We have the law. We say it won’t be enforced. Is it totally clear? We, sometimes in these things, have to accept a bit of messiness.” - Mr K. Shanmugam, Minister of Law, 2nd Minister of Home Affairs.

Boy do I have a problem with that statement! The Law Minister is making a case for messiness in the law. Is it acceptable to have some messiness in the law?

The hallmark of the rule of law is the control of wide or discretionary power. Whenever the state is given power over citizens, that power must be regulated by law. Where the state has discretion in the use of power, that discretion must be regulated by law. Thus, in many areas of the exercise of authority, the Executive is required to operate within the boundaries prescribed by the Constitution and by Acts of Parliament. Where the Executive is permitted discretion in the application of particular policies, our system allows for judicial review of such discretion. In this way, we seek to control abuse of power by subjecting all power to law.

We have a slightly different problem when there is a law that criminalises a certain conduct. The state is now authorised to prosecute an individual for the commission of an offence as deemed by that law. Where such authority exists, the expectation of the citizenry is that the law be applied consistently and efficiently. With regard to much of our criminal laws we have earned the reputation of consistent and efficient application. What then becomes of a law that is not enforced? Does it cease to be law by its disuse? Does it gradually fail to have any legal status by the very fact of its long term non-application? The answer is an emphatic No! A law is a law so long as it fulfils the criteria of validity within a legal system. If it is found in a statute, by the requirements of legal validity in Singapore, we would regard it as a law. This is without regard to whether it has become comatose.

So, what is the problem if there is a law that criminalises a certain conduct and that law has gone into a state of disuse but is nevertheless considered to be a law? It is possible for someone to assert from a practical standpoint: ‘Look. That is the law. We haven’t been enforcing it right? We won’t enforce it in the future. So, there is nothing to worry about. The law is a bit untidy. But, that is just going to be an abstract issue of academic importance. You won’t get charged for this offence. We are sincere about it.’ It is easy to be enticed by this supposed distinction between the practical and the theoretical.

I firmly believe that there is a practical reason for removing a law that the Executive and the Legislature regard as one that should not be enforced. If a law that the state has chosen not to enforce is retained, it becomes a tool in the hands of a future Executive that seeks to abuse power. In relation to s.377A of the Penal Code this is the problem. It is clear from statements made by some of our ministers as well as some Parliamentarians that there is no collective interest on the part of our State to enforce s.377A. They have made repeated assurances that they would not enforce the provision. This includes the latest assurance by the Law Minister: “We have the law. We say it will not be enforced. Is it totally clear?” To be fair, I have no reason to doubt Mr K Shanmugam’s sincerity when he asserted that. In fact, there appears to be a certain impatience in the phraseology revealing the sincerity that the Minister has with regard to the non-enforcement of s.377A. I do not take issue with the sincerity of our government on this issue. I do believe that they would not enforce s.377A against consenting adults carrying out the act in private. Whilst I do not believe s.377A would be enforced, I do believe that it exists as a powerful tool if the state is minded to abuse power. We are all familiar with Anwar Ibrahim’s predicament in Malaysia. We should be aware of the fact that abuse of power through the use of archaic law is not merely a theoretical possibility but has in many jurisdictions been a painful reality.

We cannot pretend that we would be immune to such potential abuse of power. Imagine a scenario where a vocal critic is silenced through the application of s.377A. For example, the author of the Yawning Bread blog is, on an objective assessment, a vocal critic of the government. However, his criticisms are neither seditious nor defamatory. They are within the ambit of lawfully permitted speech. Nevertheless, if the state so desires, it could deploy s.377A against the author. Such potential for arbitrary use of power through the deployment of a law in a state of disuse is not just a theoretical possibility but also a practical problem when it materialises.

If the state sees justification in the criminalisation of a conduct, then that law must be enforced. If the state sees no justification for the enforcement of that particular law, then the state obviously does not believe in any justification for the criminalisation of that conduct proscribed by that law. In such a situation, when the law is in fact eventually enforced on an ad-hoc basis, it becomes a discretionary application of the law. The exercise of discretion by the Execeutive is always a worry when that discretion is unregulated. If the state is going to enforce s.377A on the basis of pure discretion, the law is susceptible to political abuse.

My view is that since the state appears not to believe in the need to enforce s.377A, that provision ought to be removed in order to prevent any future abuse of power. (For apologists of the status quo, imagine this: Dr Chee Soon Juan becomes the Prime Minister in 2030 and decides to have Mr K Shanmugam charged under s.377A using false allegations of engaging in homosexual acts with a former member of his staff. – I don’t intend to cast aspersions on the character of either Dr Chee or Mr Shanmugam by using this example. I have chosen to use this example so that the danger of leaving an unused law on the statute book can be driven home)