Romance v. Reality

On the 19th of November, lawyer M Ravi released this press release announcing his attempt to mount a constitutional challenge against Section 377A of the Penal Code. This law criminalises ‘gross indecency’ between men, effectively outlawing male homosexuality in Singapore. In response, Alex Au published this post detailing what he thought of Ravi’s proposal. On Saturday, Ravi held a forum to explain his position on 377A, and invited several speakers to talk about the effects of sexual discrimination in their lives. Having read Au’s article and attended Ravi’s forum, I find myself able to compare both men’s approach to the issue.

Both men agree that Section 377A has to go. Both men make the case that this law leads to insitutionalised discrimination and societal prejudice, even if not actively enforced. This case is two-fold. Firstly, this law allows the State, or prejudiced agents of the State, to lay down and enforce policies that discriminate against citizens on the basis of sexual orientation. Secondly, by keeping the law, the Government is creating and continues to create the impression that there is something deplorable about homosexuality; people who base their morality on existing laws are then led to believe that there must be something wrong with homosexuality. Both men can make this argument far more eloquently than I can; going into this is not the scope of this article.

Where both men diverge is their approach. Au gives the impression that he is approaching the issue from a strategic perspective. He is concerned with what works and what doesn’t work, and will concentrate his energies on what he believes will work. I don’t think he lets his emotions get in the way of his analysis much, if at all, when he sets his mind to it. Ravi, however, seems to be a man of conviction and emotion. When he finds a cause that fires him up, he would pick the most dramatic and high-profile way to fight it – everything else seems secondary. It’s like he’s picking ways and means that make him feel good, and make others feel like something is worth fighting for.

Both men have different ideas about a constitutional challenge. In Au’s post, he covers the strategy behind a constitutional challenge. He writes about the standards of proof required by the courts, how the judges’ attitudes influence such a challenge, and the strategy applied by activists in India and the United States to strike down discriminatory laws through constitutional challenges.

On the other hand, Ravi’s forum concentrated on the lives of people affected by sexual discrimination – on the human element, so to speak. The first speaker, Vincent Wijeysingha, spoke about the history of Section 377A, how it affects people, and why it must be abolished. Amy Tachiana, Sabrina, Hedrick Kwan and Mathia Lee spoke about the discrimination they faced from the government and society. Ravi’s concluding speech was about why he is mounting the challenge, questioning why Singapore’s male gay community does not appear to be standing up for men charged under Section 377A, highlighting his perception that women and transgendered people are stepping forward to help these men, and why it is absurd to discriminate against people on the grounds of sexual orientation. Ravi’s client, Tan Eng Hong, made a speech of his own, largely about how he felt about being charged under Section 377A, how he felt after the charges were reduced, and how he intends to move on.

Au focuses on the hows of a constitutional challenge. Ravi emphasises the whys behind his constitutional challenge. In an ideal world, there shouldn’t be any conflict between the hows and the whys. But in this case, there is.

As Au said, the courts demand a high standard of evidence and verification. The judiciary wants to see links between the Constitution, Section 377A, the policies that this section enable, and the discrimination faced by people on the ground. Ravi needs to be able to draw these links and prove why Section 377A is unconstitutional before the judges will decide whether to strike it down. In a constitutional challenge, the courts are more interested in the hows than the whys – you may have plenty of reasons to strike down a law, but if you cannot prove that it is unconstitutional, the challenge will fail.

In the forum, Ravi claimed that he has a strong legal case, backed by his team of researchers. This may even be true. The impression he gave me, however, painted a different story.

In his press release, Ravi said that the “forum will try to disentangle the issues surrounding this contentious question [presumably about section 377A and a constitutional challenge mounted against it], and examine what can and need to be done if the ongoing discrimination against gay and bisexual men is not to continue so late into the modern age.” I did not feel that had happened.

It seemed that most of the forum was simply about the discrimination people face under the law – indeed, most of the speakers gave testimonials about their lives and the prejudice they faced, and little more. Just two out of the seven speakers would be directly affected by Section 377A – that is, the discrimination they faced or may face can be linked directly to that law. The other speakers, despite having faced discrimination of one kind of another, have not drawn any direct links between what they have faced to Section 377A. By legal standards, it is difficult to accept the latter as evidence that Section 377A must go.

Apart from a general agreement that Section 377A needed to be abolished, there was very little spoken about the hows beyond possibly forming a group to decide what to do next. Of the technicalities behind a constitutional challenge, just about nothing of note was said – nothing about strategy, points to consider, the legal environment, the attitudes of the judges who may be called upon to consider the case. Of his own case, Ravi said nearly nothing beyond the whys and a few lines about his research team. As Au implies in his post, a constitutional challenge needs more than this to succeed.

What I have seen does not inspire confidence. I don’t sense that Ravi is in fact concerned about the strategy behind a constitutional challenge. Instead of talking strategy, his forum is almost entirely dedicated to talking about people and their issues. This is not unimportant, but in strategy, it is only relevant as a component of arguments and only effective if backed by proof. Ravi’s case, what he does say about it, seems focused on effects on people, and relies on the courts to draw all the links he is required to make in a constitutional challenge. I don’t think the courts are going to do that; he’ll have to figure out how to do it when the time comes.

I believe Ravi’s heart is in the right place. But without demonstrating a grasp of strategy, I highly doubt his chances of winning the challenge. So, good luck to you, Ravi – you’ll need as much of it as you can get.

Presumption of Innocence

Today I saw my aunt and cousin again, for the first time in a half-dozen years. But not in person. They were framed for public consumption in yesterday’s issue of The New Paper. They were in the news because TNP interviewed them after he was picked up by the police during a sweep at Downtown East.

Looking at his tattoo, I wondered what had become of him. What he had gone through in the years before. What the man he is growing into will become. My mother pointed the tattoo out to me, saying that she had never expected him to turn out this way.

The underlying subtext was that Chia Feng Ji had run afoul of the law. Repeatedly.

There are a lot of things I don’t know about him. I don’t know if he had a criminal record. I don’t know why he wears a tattoo of a crucifix. I don’t know why he is seventeen but in Secondary Three, when the median age of students in that grade is fifteen. I don’t know the company he keeps, I don’t know how he was raised, I don’t know anything of any import about him. All I do know is that he has a tattoo and was detained and questioned during the sweep. And that Downtown East was the scene of two vicious gang attacks in recent memory.

This isn’t enough for a presumption of guilt. This isn’t enough to assume that he had broken the law.

Feng Ji was picked up during the sweep. But it doesn’t mean he was guilty of something. When conducting a sweep, the police look for people who fit specific profiles. This includes race, age, tattoos, behaviour, clothing, known criminal records, behaviour, and other factors. Feng Ji was approached by the police because he happened to fit the profile the police were looking for. That is all I know. It doesn’t necessarily mean he’s a criminal.

He said, “All they told me was that it was a screening, but I was not worried as I didn’t do anything wrong”. (TNP, pg 6, 10 November 2010) My mother apparently took offence at that statement, saying ‘he never learn his lesson’. It’s possible my mother knows something I don’t. It’s possible that he was lying. But it’s also possible that he has not done anything wrong – and I have no evidence to the contrary. I cannot say he has turned bad.

Feng Ji has a tattoo. I think my mother was shocked by it – and the underlying subtext was that he must have done something illegal, and might have associated with criminals. Maybe she’s right. But I don’t know. Having a tattoo that is not a gang symbol doesn’t make you a miscreant. Sure, he is 17 years old – but Singapore has no minimum age on tattoos. He might have gotten into trouble with his school for having one – or not. I don’t know. And even if he did, it doesn’t mean that he has since embarked on a career in crime, or that he hasn’t repented. I don’t know enough to point any fingers at him.

According to TNP Feng Ji was asked four questions: if he had broken the law before, if he were living with his parents, if he were a gang member, and if he were still schooling. I only have answers to two of those questions: he lives with his parents, and he is still schooling. I know this by inferring from the report. His responses to the other two were not published. I don’t know anything about his legal standing.

There is a lot I don’t know about him. I don’t know anything about him that points to a past or present criminal record. I cannot and will not judge him, nor condemn him, on the basis of what little I know. I can’t say that he is guilty of any wrongdoing – so I will continue to treat him like everybody else. Maybe he has a history of crime, maybe he had committed crimes yet unpunished, but it is not fair to let this possibility colour my judgment. Even if he has a criminal record, I will not let his past misdeeds stain my perceptions if he has redeemed himself. All I can do is extend to him a presumption of innocence, at least until more verifiable facts come to light.

And ask that you do the same.