Asia

Blogger risks jail for comments on Singapore anti-gay law

Alex Au (Photo courtesy of Yawning Bread)

Alex Au (Photo courtesy of Yawning Bread)

A blogger in Singapore has been found in contempt of court — a finding that puts him at risk of a jail sentence — for his coverage of legal proceedings that dismissed lawsuits seeking to overturn Singapore’s anti-gay law, Section 377A.

The blogger, Alex Au Wai Pang, 61, suggested that Chief Justice Sundaresh Menon acted improperly and with bias, a suggestion that risked undermining public confidence in the administration of justice in Singapore, High Court judge Belinda Ang ruled on Jan. 22.

Strait Times explained:

“Prosecutors had taken Au to court for two articles published on his blog Yawning Bread, a week apart from each other in 2013.

“The first article, published on Oct 5 [of 2013], referred to two separate constitutional challenges against S377A, which criminalises sex between men. The first challenge was by Mr Tan Eng Hong in 2010 after he was caught with another man in a toilet. The other, by gay couple Gary Lim and Kenneth Chee, was filed three months after Mr Tan was allowed to proceed in 2012.

“In his article, Au wrote that ‘strange calendaring’ allowed the couple’s case to be heard first – and reach the Court of Appeal earlier – even though Mr Tan’s challenge was launched first. Au claimed that Chief Justice Sundaresh Menon wanted to be on the three-judge Court of Appeal panel to hear the constitutional challenge against S377A.

“However, he could not do this in the earlier case owing to a conflict of interest, Au wrote, as Mr Menon was the AG when Mr Tan’s criminal case was before the courts.

“The relevant statements in the first article ‘crossed the legal boundary and constitute scandalising contempt’, said Justice Ang.”

The judge called for further submissions from prosecutors and defense lawyers before deciding on the appropriate penalty for Au.

Below is the text of the offending blog post from Oct. 5, 2013, as it appeared on Au’s Yawning Bread blog on Oct. 8, 2013. It has since been deleted on the Yawning Bread site, but earlier it was archived by the Internet Archive Wayback Machine.

377 wheels come off Supreme Court’s best-laid plans

The release of Justice Quentin Loh’s judgement in the Tan Eng Hong case on 2 October 2013 came as a surprise, timing-wise. Represented by lawyer M Ravi, Tan Eng Hong’s challenge to the constitutional validity of Section 377A of the Penal Code was heard in the High Court more than six months ago, on 6 March 2013. After the hearing, the judge reserved his decision and nothing more was heard about it for months and months.

Section 377A criminalises homosex between men, but its continued presence on the statute books casts a wide shadow over many other LGBT rights. Censorship, homophobic sexuality education, and non-existent partner rights in medical situations are some of the areas induced and sustained by this law.

A parallel case, also a challenge to the constitutional validity of 377A, by plaintiffs Kenneth Chee and Gary Lim, and represented by Peter Low, had been heard before the same judge three weeks earlier than Tan Eng Hong’s High Court hearing, on 14 February 2013. The judgement — rejecting the challenge, affirming the constitutional validity of 377A — was delivered on 10 April 2013. Kenneth and Gary promptly filed an appeal, and a hearing before the Court of Appeal has been scheduled for 14 October 2013.

At first, many thought that the judgement in the Tan Eng Hong case would follow soon after Kenneth and Gary’s, but as weeks turned into months, the general consensus in LGBT and legal circles was that the delay was deliberate.

The common view was that Chief Justice Sundaresh Menon wanted to be part of the three-judge bench that hears this constitutional challenge. He could do so in the Kenneth and Gary case, but he would have to recuse himself in the Tan Eng Hong case, since he was the Attorney-General at the time the case was going through the lower courts (2010 – 2012). This neat theory would account for the fact that although the Tan Eng Hong case was launched earlier, in September 2010, it was given later hearing dates than the Kenneth and Gary case. This strange calendaring thus allowed the couple’s case to proceed ahead, reaching the Court of Appeal first.

The complication was that since the two cases were so similar, it would be more efficient to consolidate the two cases at the appeal stage. But consolidation would also mean that Sundaresh Menon would be obliged to recuse himself. The view from the ground therefore, was that the Tan Eng Hong case was red-lighted by a delay in delivering the judgement so that an appeal could not be filed until the Kenneth and Gary case had been heard.

M Ravi no doubt can see the whole plan as well as anyone else, and in August 2013, acting for his client Tan Eng Hong, made an application to the High Court to be recognised as an interested party in the Court of Appeal hearing on the Kenneth and Gary case. The argument is that since the outcome of Kenneth and Gary’s appeal will affect Tan’s case (for which High Court judgement was still pending at the time) Tan should be permitted to intervene.

This move must have upset the best-laid of plans. From a legal point of view, it would be very difficult to deny such an application. The fact of the matter is that the two cases are very similar. Whatever ruling comes out of the Court of Appeal in Gary and Kenneth’s case, it would clearly impact Tan Eng Hong’s case.

I have been given to understand that phone calls were exchanged between the High Court and M Ravi’s office in which the lawyer was persuaded to withdraw his application on the understanding that the judgement for Tan Eng Hong would be released shortly. And that’s why the judgement was released on 2 October, when few others were expecting it.

Just like in the other case, Justice Quentin Loh dismissed Tan Eng Hong’s challenge. The reasoning used was similar in many respects.

But what happens next?

* * * * *

We can only speculate, but if M Ravi moves as deftly as he has shown himself capable of, the Supreme Court will have to dance to his tune.

I expect him to file an appeal immediately. At the same time, I expect him to apply for a consolidation of the two cases at the appeal stage. Proper procedure then would be to ask the Attorney-General’s Chambers as well as the legal team for Kenneth and Gary (now led by Deborah Barker) whether they would object, and then to schedule hearings on the question of consolidation.

Once this process is started, it would seem unavoidable that the appeal hearing for the Kenneth and Gary case should be suspended until the question of consolidation is sorted out. Thus, I don’t see the hearing on 14 October going ahead — for Kenneth and Gary’s appeal alone.

Moreover, since I can’t see any good legal grounds for rejecting an application to consolidate the two cases, I think there is a good likelihood that this will come to pass. Then again, Singapore courts are known to fly off into logic of their own.

Assuming that the two cases are consolidated, it will mean that Sundaresh Menon will have to recuse himself. The other two judges of appeal already named for the 14 October bench (V K Rajah and Andrew Phang)  would not be affected. Which other judge will be chosen to replace Menon? What impact will that have on the chances of success of the constitutional challenge?  All that is very hard to see.

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