He was rebutting an opinion editorial penned by Lee Wei Ling on the prosecution of Tang Wee Sung [2]. Tang, a retail magnate who is suffering from terminal kidney failure, had just been fined S$7,000 for arranging to buy a kidney for himself (a violation of the Human Organs Transplant Act) and jailed for one day for making a false declaration (a violation of the Oaths and Declarations Act). The latter law mandates a prison sentence, so one day in jail is the absolute minimum.

Lee, who is the daughter of Singapore strongman Lee Kuan Yew, had argued that "Since Mr Tang's health might have been endangered by even 24 hours in jail, he should not have been sentenced to jail - period!

"While I am happy for Mr Tang that the judge was merciful, I wonder whether our society has become so 'politically correct' that 'token sentences' are needed just to prove that all, rich or poor, are treated equally before the law."

To that, Woon was emphatic: "Everyone, rich or poor, is obliged to comply with the law. It is not open to anyone to say, I disagree with the law enacted by Parliament, therefore I shall ignore it... The Rule of Law means that compliance with Acts of Parliament is not a matter of choice. No one is above the law."

What will Woon do with Section 377A then? By this reasoning, he must enforce it pro-actively.

 
Ho Kwon Ping steps up to the plate

Perhaps as a total coincidence, two days after Woon's rejoinder was published, an opinion editorial by Ho Kwon Ping, chair of the boards of Mediacorp and the Singapore Management University, appeared in 'Today' newspaper. [3]

Titled "Stop making a mockery of the law: Let's accept gays", he said,

The somewhat schizophrenic decision to not prosecute an illegal activity has ramifications beyond the gay community, and has disturbed some sections of the larger community, which is not particularly interested in gay issues.

To many thoughtful citizens, Singapore has always openly claimed that the Rule of Law, possibly even more than the formal mechanisms of democracy, is a vital component of good governance. Yet, to criminalise gay sex and, in the same breath, state that anyone breaching this law will not be prosecuted, makes a mockery of the Rule of Law.

Minor though this violation of the principle may be, the proponents of the concept that the Rule of Law is a sacrosanct pillar of the Singapore ethos lament that the Government did not take the bold step to simply decriminalise something which the rest of the developed world has long decriminalised; which most Singaporeans (except, perhaps, the most fervently fundamentalist Christians or Muslims) don’t care that much about one way or the other; which the police, courts, and legal community would welcome simply to remove an archaic, Victorian-era statute; and finally, which the gay community would embrace as an important signal that their right to privacy - a fundamental human right - is considered to be more important than the right of anti-gay groups to proselytise about morality.

In a nutshell, Ho was pointing out that the government's messy compromise is untenable. It will cause enormous damage to respect for the law. Either one goes cleanly in the direction of repeal, or one enforces the law.

Yet, at no time in the debate over Section 377A last year did anyone, even the most antediluvian Christians, argue for active enforcement. And only one or two nutcases argued for expanding Section 377A to cover lesbian sex. So clearly society has moved on, and now see it as morally unacceptable to enforce or expand such a law criminalising private behaviour and inborn identity.

That being the case, it was the height of cowardice for Lee Hsien Loong and his government to opt for the legally untenable position of keeping the law and not enforcing it.

Much as they liked to spin it as a "compromise", that was actually not even the middle ground in the debate. The "compromise" was actually the favoured position of the reactionary anti-gay faction, albeit not the extremist wing.

 
The case for 'judicial conservatism'

In a forum organised by the Catholic Church in May this year, lawyer Thomas Aqbal said in his speech that when it comes to changing laws, one should take a slow, conservative approach. Abrupt changes to laws can have large, unpredictable effects.

He cited the prohibition laws in the United States in the early part of the 20th century. It went so much against the grain of Western culture, it became unenforceable, and furthermore led to much corruption in the police forces. Likewise, he argued, repealing anti-gay laws would go so much against the grain of our society, it would not be wise to take such a risk.

I thought, listening to him, that the argument could just as well be the other way around: It depends on what we understand by "going against the grain". One can observe that Singapore society (other than the religious zealots) generally shrugs its shoulders with regard to gay people in our midst. To proscribe them in law (and by the principle of the Rule of Law, it should be enforced) is very much against the grain of our society.

Aqbal also cited another example of what he termed "judicial activism" – the Dred Scott case. [4] (I wasn't familiar with it then, but I have since searched the internet for it.) He said this was a classic example of how disturbing the legal status quo could lead to civil war.

Wow. That was indeed an apoplectic vision of what might happen to Singapore if we repealed Section 377A. But what was this Dred Scott case about, and what real lessons does it hold for us?

 
The Dred Scott case

Dred Scott was an African-American, born a slave around 1800, and first owned by Peter Blow, who took him to St Louis, Missouri in 1830 where they settled. Probably in 1832, just before his master died, Scott was sold to John Emerson, an army surgeon. Shortly after, Emerson was transferred to a military base in Illinois, and took Scott with him. They moved once more in 1836, this time to Fort Snelling on the West Bank of the Mississippi River in Wisconsin Territory, a spot within what used to be Louisiana Purchase Territory.

In 1837, Emerson was transferred by the Army to Louisiana state, but this time, instead of taking Scott with him, he left his slave in Wisconsin, hiring him out to other people. It wasn't until a year later that Emerson arranged for Scott to join him.

This moving around and being left behind would be a crucial part of Scott's case when later argued before the courts, for while Missouri state permitted slavery, it was prohibited in Illinois state and Wisconsin Territory.

There were three governing Acts in question:

• The Northwest Ordinance of 1787 which forbade slavery in the areas north of the Ohio river and east of the Mississippi, thus covering Illinois state, 
   
• The 1818 constitution of Illinois state itself, which outlawed slavery, and 
    
• The Missouri Compromise of 1820, which made clear that slavery could not be allowed in the newly-acquired Louisiana Territory north of latitude 36° 30' N (except in Missouri State). This covered Fort Snelling.

The first and third were messy compromises between slave-owners and abolitionists as the US settled more and more of the continent.

But what would happen when people moved about? Would a person be a slave one day and a freeman the next? And crossing back the border, become a slave again?

It had become established precedent in Missouri itself from cases in the 1820s and 1830s that when a slave was taken into a "free" state, he would become a free person, the legal principle being "once free, always free". Slavery would not reattach on return. However, one had to obtain one's freedom by suing for this right.

Dred Scott did not sue for his freedom until after Emerson died. It is not known why, but perhaps he was happy working for the army surgeon, or he didn't know his rights. However, in 1847, by which time he had passed to Irene Emerson, the widow, he launched his case.

At first, it was hardly noticed, for there had been many cases of similar nature before him. Prevailing legal opinion was that Scott had a good case based on extended residence in free areas. Little did anyone know how celebrated a case it would become.

It would take 10 years before reaching the US Supreme Court for a final decision. By then, slavery had become a highly controversial issue with pro-slavery advocates dominating the Supreme Court.

The 1857 Supreme Court's decision had two main parts, one highly logical, the other atrociously flawed.

The latter part ruled that Dred Scott, being black, could never be a citizen of the United States, and so had no right to sue. The court argued that it had never been the intention of the framers of the US constitution to include non-whites as citizens. This was an atrocious revision of history because of the original thirteen states that joined to form the United States in 1782, ten of them had enfranchised black voters even back then.

Not content merely to throw out Dred Scott's case, the court went on to deal with the Northwest Ordinance and the Missouri Compromise. It ruled both to be unconstitutional, in other words: Congress cannot make laws that would free slaves.

Why not?

And here the court was remarkably logical in its reasoning. Citing the constitutional provision that no man shall be deprived of his rightful property without due process, the Supreme Court said such laws that grant automatic freedom to slaves were an affront to property rights.

And so the messy compromise collapsed. Both pro-and anti-slavery sides came to feel that the issue had to be resolved once and for all.

 
Little to do with Section 377A

I still cannot quite see how the Dred Scott case speaks to the issue of Section 377A, as Aqbal claimed. Even if one must draw a (tenuous) linkage, it still won't come out as any salutory lesson for judicial conservatism. I think one can discern two possible lessons from this case:

Firstly, messy political compromises cannot withstand a reference to other judicial principles, in Dred Scott's case, property rights. Any judge having to adjudicate would have to say it is either a case of violation of property rights or not, and not accept a situation where it varies from one town to another.

With 377A, a judge would have to decide if someone is guilty or not, rather than something in between. A prosecutor would have to charge the perpetrator or be derelict in his duty. Didn't Walter Woon say "Compliance with Acts of Parliament is not a matter of choice" and "No one is above the law"?

The second lesson is that framing and interpreting laws must be done in cognisance of emerging moral values and social realities. The Supreme Court was highly logical in overturning the Northwest Ordinance and the Missouri Compromise when they saw a conflict between them and the constitutional safeguard for property rights. The problem, however, lay in what constituted property, with the court never seeming to sense any moral or legal difficulty with treating humans as property. In this reactionary stance, the decision became explosive.

In the same way, I will argue that it is now impossible for a Singapore court to find anyone involved in adult, consensual homosex to be guilty under Section 377A without seeming shockingly backward and morally obtuse, not to mention being completely at odds with an inescapable reality: the welcome mat laid out for all sorts of talent. This means the "conservative" side of clarity -- to keep and enforce the anti-gay law -- cannot any longer be reconstructed.

If messy compromises are no good and one side of clarity impossible, then there is only one side left: repeal.

Oh, as for Dred Scott, after losing his case, the sons and daughters of his original master, Peter Blow, bought him back from the Emerson family and freed him.

© Yawning Bread