Because, I said in reply, there are some aspects of life that inevitably come up against some government policy or other, and nothing except a change in policy can solve it. I gave the example of a married lesbian couple from abroad, with one partner able to get a job in Singapore. Is the other partner entitled to come with her? Immigration rules are very much the purview of government; one cannot privately circumvent it.

That was last week. I was speaking to a lecture hall of students at Nanyang Junior College. The topic of my talk was Mass Media and Civil Rights.

This week, we have this news story from Hong Kong:

18 February 2009
AFP

Gay couple jailed in Hong Kong for visa fraud

A homosexual couple have been jailed over a wedding scam set up to allow a Malaysian man to live permanently in Hong Kong, the city's immigration department said.

Malaysian Derek Chong, aged 29, and Hong Kong resident Andrew Lam, 51, organised for Chong to marry a Hong Kong woman so he could settle in the southern Chinese city, the department said in a statement.

The couple paid the woman 25,000 Hong Kong dollars (3,200 US) to agree to the marriage in 2006, before Lam and Chong moved in together.

Chong then successfully applied for a dependent visa. A year later he contacted his "wife" to help extend his stay and he was granted a further three-year visa in November 2007.

Lam and Chong were on Tuesday both jailed by city magistrates for eight months on a joint conspiracy charge, according to the statement.

Lam's friend Edward Lai, 43, was also jailed for five months for helping the couple find an unnamed middleman, who then provided the woman.

"The department has been very concerned with non-Hong Kong residents obtaining the right to stay in Hong Kong by means of marriage of convenience," a department spokesman said in the statement released late Tuesday.

An immigration spokesman told AFP Wednesday that the woman involved in the scam had also been prosecuted, but no verdict had been reached.

What the gay couple faced was an injustice in the way marriage and immigration policy had been framed. They couldn't get married even though they loved each other, and because they couldn't be married, they couldn't get a legal way to live together. So they chose to devise such a scheme.

From this perspective, one could argue that the injustice therefore does not lie in any act committed by the people involved, not like the injustice of somebody cheating you by selling you defective goods, or the injustice of your neighbour setting off fireworks from his garden, resulting in your house being torched. In such cases, the courts are there to correct the injustice.

In the Hong Kong case, one could argue that the courts were there to reinforce the injustice of discriminatory laws and policies. While indeed, countries ought to have laws controlling immigration, there are such things as fair laws and unfair laws too.

Governments should be made to realise that some of their laws and policies are faulty, and these should be corrected. As I said to the Nanyang Junior College students, this is one of the chief motivations for civil society activism.

But even in the absence of government and legislative action, a robust, independent and critical-minded justice system should be able to right its own wrongs by reinterpreting law. Here is another news story that illustrates this:

18 February 2009
AFP

SKorea court convicts man for transsexual rape

A South Korean court Wednesday handed down a landmark verdict, convicting a man of raping a transsexual woman.

The court in the southern port of Busan sentenced the 28-year-old to three years in prison but suspended the sentence for four years. It also ordered him to do 120 hours of community service.

The man was found guilty of raping the 58-year-old transsexual after breaking into her home in Busan last August.

In its ruling quoted by Yonhap news agency, the court said the victim should be considered a woman because she had maintained normal sexual relations with her partner since her sex-change operation in 1974.

The criminal code does not recognise the concept of homosexual rape.

The Supreme Court in 1996 rejected a similar case involving the rape of a transsexual.

But in 2006 it affirmed the right of people who undergo sex changes to adopt their new gender for official records.

A rights group estimates more than 70,000 people have undergone sex-change therapy or surgery.

 
It appears that South Korean law is similar to Singapore law in the way rape is defined with reference to gender. Only a man can rape a woman. Only a woman can be raped. Prior to 2006, a male-to-female transsexual would still be considered a man, and if another man raped her, it would not be considered rape at all.

Here again, one cannot just carry on with one's private life, not worrying about what government policy or laws say. When out of the blue, one is assaulted through no fault of one's own, law and policy become critically important to whether one gets justice.

It took the Supreme Court to rule in 2006 that those who have undergone a sex change should be treated according to their new gender, before a 2009 lower court could interpret the notion of "female" to include transsexuals who have lived a long time as women. Only then could it apply the rape law to such a case.

But even so, one has to wonder why the lower court suspended the assailant's sentence. It sounds ridiculously lenient; was the court swayed by anti-transsexual bias? We'll need to know more facts of the case to make a better determination.

© Yawning Bread