April is the beginning of spring. And spring, is the beginning of hope. Each time I think of April, I think of the Bandung Conference. Held between 18 and 24 April 1955, it marked the beginning of the non-aligned movement, a new world order in international relations. 

Two actions from the government of Singapore give me hope we will usher in a new era in equal rights, that section 377A will be repealed after this election (It has just been declared that Singapore will hold its general election on 7 May 2011.). The first is the Attorney General’s decision to strike out the judicial review of s377A in a case filed by Tan Eng Hong, who was last year charged under s377A after he was caught in a shopping centre toilet with another man but was later amended to section 294 (obscene act in public). The second is the total silence on s377A and the discrimination against LGBTQ in Singapore in her national report to the United Nations Human Rights Council for its Universal Periodic Review (“UPR”).

The fact that the Attorney General’s Chamber does not want the court to decide on the constitutionality of s377A shows clearly that it admits s377A is unconstitutional. As for the silence in its national report for the UPR, Singapore knows that it has no defence or reasonable excuse for s377A to remain in the Penal Code. 

What is the Universal Periodic Review? The Universal Periodic Review "has great potential to promote and protect human rights in the darkest corners of the world.” – Ban Ki-moon, UN Secretary-General The Universal Periodic Review (UPR) is a unique process which involves a review of the human rights records of all 192 UN Member States once every four years. The UPR is a State-driven process, under the auspices of the Human Rights Council, which provides the opportunity for each State to declare what actions they have taken to improve the human rights situations in their countries and to fulfil their human rights obligations. As one of the main features of the Council, the UPR is designed to ensure equal treatment for every country when their human rights situations are assessed. The UPR was created through the UN General Assembly on 15 March 2006 by resolution 60/251, which established the Human Rights Council itself. It is a cooperative process which, by 2011, will have reviewed the human rights records of every country. Currently, no other universal mechanism of this kind exists. The UPR is one of the key elements of the new Council which reminds States of their responsibility to fully respect and implement all human rights and fundamental freedoms. The ultimate aim of this new mechanism is to improve the human rights situation in all countries and address human rights violations wherever they occur.

As the first hearing for the UPR will take place on Friday, 6 May 2011, between 9 am and 12 noon (Geneva time), I shall write on this. Interested readers can watch the proceedings on the UN website.

The Minister for Home Affairs and Minister for Law, Mr K. Shanmugan will be leading an inter-agency delegation to Geneva. No doubt, being an achieved lawyer, he will be speaking on Singapore’s behalf.

UPR Hearings 

Singapore will face a total of two hearings at the UPR. The first on 6 May 2011 and the second in September 2011.

After the first hearing, an outcome document summarising the proceedings will be adopted. This document will form the basis for the second hearing.

The three members (troika) assisting the working group in drafting the report are Spain, Bahrain and Djibouti. Spain is a Roman Catholic country, Bahrain is Islamic and Djibouti is a French speaking African state with a population made up of more than 90% Muslims.

It is at the second hearing that civil societies will be allotted time to express their views. This is the right to object. Only civil societies or NGOs with observer status at the UN can do so.

At the first hearing, only states have a right to question Singapore. Civil societies cannot do so.

Though written questions can be submitted in advance, Singapore can choose not to answer.

Therefore, it is imperative that Singapore’s discriminatory record against LGBTQ be tabled orally by states at first hearing. This leaves no room for this issue to be “forgotten” in the myriad of others.

History of UPR

The UPR is a creature of the Human Rights Council. This is a unique mechanism. The first review took place in 2008.

The Human Rights Council itself was formed in 2006, to take over the role of the controversial United Nations Commission on Human Rights. The Council is not a treaty-based body e.g. Committee on the Elimination on the Discrimination against Women (“CEDAW”). It was formed under the UN Charter by a General Assembly resolution. 

The UPR is one of the things introduced by the Council in 2007.  

Written Submissions

Written submissions by civil societies and non-governmental organisations for Singapore’s hearing had to be made by 1 November 2010. There were a total of 19 submissions, five of these were joint submissions. The number of parties which submitted numbered 27. Of these, 17 were by Singaporean organisations and 11 by international NGOs, like Amnesty International. 

Of the submissions by Singaporean civil societies, only PLU and COSINGO referred to s377A and discrimination of LGBTQ rights. COSINGO is the acronym for Coalition of Singapore NGOs, spearheaded by MARUAH. 

From the international human rights groups, ARC International, ILGA (International, Lesbian, Gay, Bisexual. Trans and Intersex Association) and ILGA Europe, made a joint a submission. As ARC International is supposed to have observer status at the UN, LGBTQ’s interest can be represented. The right to object at the second hearing is available through ARC International. None of Singapore’s civil societies have any status at the UN. 

By way of comparison, for Malaysia’s UPR review, of the 11 written submissions, three referred to s377A or its equivalent. They were made by Amnesty International, ILGA and COMANGO (Coalition of Malaysia NGOs in the UPR Process). 

Unlike for Singapore, Amnesty International’s submissions for Malaysia cited s377A as an infringement of human rights. This no doubt has to do with the view that the provision is used as a political tool in that country. The prosecutions of Anwar Ibrahim, an opposition leader, was specifically mentioned. I think normal citizens’ rights are equally important.

Singapore’s Law Society drafted a report for submission for the UPR. The committee formed to draft it was chaired by Thio Su-Mien, the Feminist Mentor in the AWARE takeover fame. She is the chair for Public and International Law Committee at the Law Society. She was responsible for writing the part on equal rights and freedom of religion. 

Even though the report was completed and submitted by the committee to the Law Society’s Council for approval, before 1 Nov 2010, it is understood that the Law Society wrote to the UN Human Rights Council requesting for an extension of time. The Council of the Law Society after much delay decided against submitting its report in December 2010.

Benchmarks

At the UPR, Singapore’s human rights record will be measured against international human rights law. It is not constitutional law, which is the domestic law. Therefore, s377A will hardly stand any chance given the strength of two cases: Dudgeon v UK and Toonen v Australia.

Dudgeon v UK was decided in 1981. Though it interprets the European Convention on Human Rights 1950, the decision of the European Court of Human Rights is highly influential.

10 years after Dudgeon v UK, the United Nations Human Rights Committee decided against Australia in a case brought by Nicholas Toonen. The Committee found that such laws invade an individual’s privacy and contrary to equal rights provisions of the International Covenant on Civil and Political Rights.

Given Dudgeon and Toonen, as well as later cases which applied them, the government of Singapore has wisely kept its silence. It is now left to the countries to pose the right questions at the first hearing and the NGOs to make the right objections at the second hearing. 

“Moral-suasion” 

Singapore is founded on equal rights. It is a country which prides itself for its “rule of law”. Like many small countries of the non-aligned movement, its international relations is premised on the appeal of such principles. Even if we are living the days of yore, of gunboat diplomacy, we do not have the resources to send in the tankers whenever something is not to our liking. Therefore, it cannot afford any moral misalignment in its policies. The hypocrisy in its equal rights policy cannot last for long. 

To hasten the repeal of s377A in Parliament, I dare you all to tell someone that you are not a criminal on 6 May 2011. I dare you all to live a life of honesty.

Until the next time, be brave! 

George Hwang

The Lawyer Is In is a monthly column. In the columns, George Hwang will answer questions posed by readers on subjects such as personal and civil rights, workplace issues, discrimination, immigration, sexuality, lasting power of attorney and estate planning. To submit a question, email editor@fridae.com. Responses will be made by placing your question (without identifying you) in an upcoming column, and answering it there. We regret that questions cannot be answered privately.