Retired Australian High Court judge Michael Kirby, and Foreign Minster Kevin Rudd will call for an end to laws criminalising homosexuality at the Commonwealth Heads of Government Meeting (CHOGM) in Perth from 28 to 30 October 2011.
More than 2 billion people - over half of them under 30 years old - living in the Commonwealth, representing around 30 percent of the world's population and over a quarter of the world's countries.
More than 2 billion people - over half of them under 30 years old - living in the Commonwealth, representing around 30 percent of the world's population and over a quarter of the world's countries.
Forty-one of the 54 Commonwealth countries including Malaysia, Singapore, Bangladesh, Brunei, Pakistan, Maldives, 17 of the 19 African Commonwealth nations except South Africa and Rwanda and all Commonwealth Caribbean countries except The Bahamas still have anti-gay laws on their statute books, often as a legacy of British colonial rule. In Sri Lanka, section 377 was changed in 1995 to extend the offence from not just men but also to women.
"It's just a dear little legacy of the British Empire," Kirby, an openly gay retired High Court judge and Australia's representative on the 11-member Eminent Persons Group (EPG), said ahead of the meeting. The Chairperson of the group is former Prime Minister of Malaysia Tun Abdullah Ahmad Badawi.
"It's a very special British problem.
"And the problem is it makes it very difficult to get messages about HIV out," he said in comments broadcast on the ABC.
It reported that while about 2.7 million new people become infected with HIV every year, the virus claiming a further two million lives annually. Commonwealth countries are disproportionately burdened with the disease, accounting for some 30% of the global population, but 60% of the world's HIV/AIDS cases.
Kirby noted that reforms would face cultural and religious obstacles among members of the Commonwealth.
"But you need to remove the criminal laws, and that is what the Eminent Persons Group is suggesting for the CHOGM meeting," he said.
When contacted by Fridae, Kirby confirmed that the report from the EPG has been presented to the Secretary General of the Commonwealth of Nations (Mr Kamalesh Sharma) and is part of the formal CHOGM agenda. However, the report will not be released until it has been seen and considered by the current Commonwealth leaders in Perth.
A number of media reports in Canada and the UK suggest that several Commonwealth member nations have acted to delay its release. The report is said to contain some 106 recommendations aimed at giving the group a more active role in monitoring human rights in member countries. The UK Telegraph warns that the recommendation calling for the repeal of laws prohibiting homosexuality could trigger a high-level row.
During the 16th Commonwealth Law Conference in Hong Kong in 2009, Justice Kirby made a strong plea that homosexual law reform be addressed within the Commonwealth: “Whilst issues of principle and the fundamental policy of the criminal law are at stake, and these must not be confused with utilitarian reasons concerning national responses to AIDS, the fact remains that the current approaches, particularly in Commonwealth countries in Africa, Asia and the Caribbean, place an impediment in the way of effectively tackling this major epidemic. Criminalise people and you cannot reach out to their minds and effectively influence their conduct. (…) that message is now one of great importance for the Commonwealth of Nations where AIDS is definitely a priority issue.”
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May I take this opportunity to suggest to Dr Kirby that, instead of narrowly recommending that the 41 member-states REPEAL anti-gay laws (e.g. s377 & s377A), why not recommend that they (ELECTED governments) ALLOW Constitutional Challenges to these laws as a stepping stone to REPEAL. By so doing, the ELECTED parliamentarians do not have to worry about losing votes, because the abolishment of such laws via this route is not initiated by them; hence they can't be, and wouldn't be, blamed by the voters.
After the laws have been STRUCK DOWN by their courts (as s377 in India was), the government can then move on to gradually reduce social homophobia by, for example, including homosexuality in sexuality education programmes in schools, encouraging safer gay sex, reaching out to MSM directly, and reversing media regulations that discriminate against LGBT. As social homophobia decreases, it will then be easier to table Bills to REPEAL these laws. Instead of expecting them to remove this thorn swiftly in one big step, empathize with their difficulties, and recommend this alternative.
Although REPEALs should be our objective, allowing the courts to strike down these laws first would achieve the virtually equal desirable legal effects. It's an easier, faster means to achieve the desirable legal effects. Let's recommend them to take this smaller step first.
By "ALLOWing" I mean the governments of these 41 member-states should:
1) advise (privately) the pro-LGBT NGOs that they are free to challenge the constitutionality of anti-gay laws and let the courts decide;
2) advise the government-controlled public prosecutors (e.g. Attorney-General's Chambers) not to push too hard to defend these anti-gay laws;
3) not appeal to the courts if the latter strike down these laws;
4) do not initiate Bills in Parliament or national referendums to overturn the courts' decisions if the latter strike down these laws;
5) advise the government-controlled public health departments to cooperate fully with the NGOs seeking the constitutional challenges if required (e.g. testify in courts regarding the obstacles they face in reaching out to high-risk groups such as MSM due to these anti-gay laws.)
We must remember 3 things:
1) These states inherit the English Common Law system, which means that they share very similar Constitutions and legal procedures. Hence, if a law is deemed unconstitutional in a few of the member-states' courts, we have a very strong argument that the other member-states' courts should also arrive at the same conclusion. There are precedents, so as to say.
2) The governments of these member-states are typically ELECTED, which means they are answerable to the voters. IF the majority of their electorates are strongly opposed to the REPEAL, then, as in all DEMOCRACIES, the MAJORITY should be respected. What incentives are there for the ELECTED parliamentarians to risk losing votes? Are REPEALS of anti-gay laws both important and urgent enough for them to take the political risk of tabling them? Many of these states (including Singapore) have taken the "Don't Repeal, Don't Enforce" approach that is very similar to the "Don't Ask, Don't Tell" one used in the U.S. army. Sitting on the fence is preferable to taking the plunge because there is no urgency at all if their police departments do not enforce such laws proactively.
3) To eat an elephant, we can cut it up and eat it piece by piece. We may choke by attempting to swallow it all at once.
Hence, I think that selling, to these ELECTED political leaders, the less politically intimidating approach of ALLOWING (or facilitating discreetly) constitutional challenges should be much easier for Dr Kirby.
But selling to them the ALLOWANCE APPROACH (AA) is just the first step. Ideally, it should be coordinated with another two: support Commonwealth-wide Constitutional challenges; influence the legal profession. Thus, I recommend three steps, namely:
1) Sell ALLOWANCE APPROACH (AA) to the 41 member-states' governments (abbreviated AA);
2) support Commonwealth-wide Constitutional challenges (abbreviated CC);
3) influence the legal profession (abbreviated IL).
Earlier, you had informed us about the British Prime Minister-backed charity, Kaleidoscope ( website: http://www.kaleidoscopetrust.com/contact.php ). After some/all of the 41 governments are sold AA, we should seek this charity's or another NGO's leadership to assist the LGBT communities in these 41 jurisdictions file for CCs individually. A team of legal experts-- consisting of Queen's Counsels, Senior Counsels and other distinguished figures in the legal profession like Kirby-- should be formed to direct this project.
Meanwhile, influential experts like Kirby should seek to influence the legal profession through:
1) research and publishing papers on constitutionality of anti-gay laws in major journals (read by judges, lawyers and law students & scholars);
2) speaking in universities and legal societies on this topic;
3) organizing summits to discuss human rights laws and constitutional law about anti-gay laws and gay rights.
If we take this 3-step approach, then we can achieve the goal of giving more space for both the LGBT communities and the public health departments in these 41 member-states more quickly. Attempting to push these ELECTED political leaders to take political risks which they don't see as a priority or urgency would only result in a gridlock, which doesn't help the LGBT communities in these member-states.
Most of these countries, that have inherited the English constitutional model, haven't empowered their courts to strike down legislation as unconstitutional and therefore they are unlikely to get progress through the courts. Most legislatures have jealously guarded their power to be the highest law makers.
I believe mounting increased international pressure increases the likelihood that elected representatives will repeal discriminatory laws. They may have voters that want the laws to stay but they also don't want to be embarrassed on the global stage.
- you realise a thing is just wrong.
- and you stop finding excuses for the incompetent morons at the top of whatever political hierarchy you have (most of whom throughout southeast asia are hardly the product of fair and free elections anyway)
- and you fight.
i'd suggest it is time to do that.
But don't forget the West is Very powerful and they will go through any lengths to impose their views and ways ( well disguised as " universal" values" - as if the Asia don't have any values ) and thereafter they leave behind mayhem.
Then they come in as saviours and tell you ....this is how you should live and behave...
Think the Americas , Australia and the pacific for starters ...and now Iraq and Afghanistan and look at Libya and gunning for Syria ...and then they just say...ooops I am sorry as in the case for Australia ....after virtually exterminating the various aboriginal races there and in the case of Tasmania ,Australia they did exterminate the entire aboriginal race on that island ...they say sorry....yea ...sorry for killing you all off and now I give you welfare and arid land for you to live and get intoxicated and then slowly let your race slowly die off......Or intermarry and dilute the Race....just look closely at Australia and you can see the white man at work in practicing and promoting their "civilization" and universal values.
For Asia ..we need to look at our own solutions and be very wary of these "do good" outsiders who . Homosexuality has a place within Asian society it is only when the colonizers and missionaries ( read do gooders ) came and imposed their ways that homosexuality became a bad thing....see thailand and their health attitude towards gays !!
I am especially amazed by the teachers of English language or whatever else they do ..when they came to work in china eg hubei , Liaoning etc....many are probably teaching and spreading amongst other things, chirstianity at the same time....
I am not ungracious ....but I am telling them to just go and solve the problems in your own country first (look at some of the knee jerk and ignorant comments here ) ....and indulge in your democracy first and when you have perfected t it in your own country then Asia will be willing to listen, even hear you out...till then...please take the first plane or sampan out.
Are the laws in the commonwealth Countries in your article ....anti gays or were they anti sodomy laws ?....which is not solely aimed at gays....
If I recall correctly the same anti sodomy law existed when the British were in hong kong and was only taken off 10 years prior to the handover ...in 1997.
i also don't really get the self blame about the british empire, at least in SE asia. it was hardly enlightened when it was established - what empire is ? -but surely it is time to give it a rest? in SE asia in particular it probably left a better legacy than other european powers, or the so called 'anti-imperialist' americans and their colony, i might add.
it is historical fact that when invited by the japanese to make 'common cause' with 'fellow asians' as part of the 'greater east asia co-prosperity sphere', as the japanese bizzarely wanted to name their empire, people in malaya took to the jungle and fought alongside the british, indians and australians. i do not think anyone was fooled.
the decolonisation of the peninsula is dealt with in the reid report and i suggest people read that as it is very interesting, in light of the current apartheid that cripples malaysia. was britain's blueprint better than what prevailed in the end? a good question, i think.
back on topic. the softly-softly approach to gay reform has led to very little politically that i can see.
if you want it, you are going to have to fight for it, as was done in NYC, as was done in sydney. no one will give anything to you.
I juxtapose both lists and derive the following list of jurisdictions which are under the jurisdiction of the Committee and which have anti-gay laws:
1) Antigua and Barbuda Antigua and Barbuda -- Illegal (Penalty: 15 year prison sentence)
2) Grenada -- Male illegal (Penalty: 10 year prison sentence)
3) Jamaica--Illegal (Penalty: 10 years hard labor)
4) Saint Kitts and Nevis--Male illegal (Penalty: 10 years)
5) Saint Lucia Saint Lucia --Male illegal (Penalty: fine and/or 10 year prison
6) Saint Vincent and the Grenadines -Illegal (Penalty: fine and/or 10 year prison sentence)
7) Tuvalu (Polynesia)- Male illegal
8) Cook Islands (part of the realm of New Zealand) --Male illegal
9) Dominica- Illegal (Penalty: 10 year prison sentence)
10) Mauritius --Male illegal
11) Trinidad and Tobago --Illegal (Penalty: 25 year prison sentence)
I wonder whether it's possible for the LGBT communities in these 11 jurisdictions to file for constitutional challenge and, should they fail in their at home, appeal to the Committee in London.
Well, I don't know whether or not screaming and demonstrating against government policies as they do in the West is the way to go for Singapore but the s377A challenge that's now before the High Court and pending its decision is indeed a milestone for Singapore and its LGBT community. Mounting this sort of challenge in court in Singapore is a rarity because only the very bravest of lawyers have the gall and the gumption to undertake such a feat in light of the personal risks involved. Which, therefore, makes it akin to a mini Stonewall of sorts for us, the LGBT folks in Singapore.
Scaro, you're certainly entitled to your views about the ways of the West being more effective, etc., but Singapore's situation is not as it is in the West which necessitates that Singapore's approach to discriminatory laws be handled differently as well.
You suggested "and you FIGHT" and "if you want it, you are going to have to FIGHT for it". May I know HOW you think we should "FIGHT"?
I suggested both persuading political leaders to REPEAL anti-gay laws AND the 3-step approach described. What concrete actions do you suggest we take to "FIGHT"?
You commented, "back on topic. THE softly-softly APPROACH to gay reform has led to very little politically that i can see."
May I know which APPROACH you were referring to? Were you referring to either Kirby's APPROACH of urging the political leaders to repeal as reported in this article or the 3-step APPROACH that I suggested above, both, or neither?
there is a kind of circular and slightly tedious dialogue contrasting the reprehensible treatment of gays in malaysia and singapore with western countries, when at the same time, no one i've met wants to stick his neck out to achieve similar reforms.
the bitter truth is that in many cases, the rights gays have won in western countries were first achieved by violent protest, by chucking rocks at policemen and burning down buildings.
It's a bit confusing, so I asked. You said, "if you want it, you are going to have to fight for it, AS WAS DONE IN NYC, AS WAS DONE in sydney."
But now, you say, "in the end you've got to work it out for yourself."
I think your latter suggestion makes more sense, and I am glad I clarified with you your former ones.
you surely know that gentle chiding and continued 'engagement' is not going to get these governments to shift their views.
they are your enemies. that much is clear.
the thing you need to work out is how in particular you want to attack and beat your enemy.
Perhaps you could let us know how and why you think it's workable to "attack and beat your enemy" ("these governments") in Asian countries like Singapore.
if you don't know why you want to do it, then perhaps there is no issue for you in having these laws in place.
1) repeal;
2) demonstrations;
3) rebellion.
In more recent LGBT history, Indian, Tasmanian and Hong Konger LGBT communities didn't have to push their luck, like many of their counterparts in the West had earlier, to achieve their common objective. This proves that human beings, including LGBT people, do learn to be smarter over time. I don't see why we need to use condoms made of animal intestines when there are latex condoms, as much as I don't see why we should pursue the more resisted path if there is a proven path of LESS resistance available.
You might have missed my posting mentioning that I met him before. He was with Ivan Tan. I know Ravi is straight, where his office is and what his contacts are. There is no need for anyone to repeatedly advertise here. It's neither an appropriate space nor an effective way to advertise here. This space is for us to discuss and comment on the articles, not post commercial advertisements.
But I think it's a good idea if Fridae could offer to advertise his legal services on a pro bono basis in an appropriate advertising space (e.g. under classified section or on banners) if Ravi is agreeable. Many gay members and readers of Fridae may wish to give business to a gay-friendly lawyer. In the interests of its readers and members, I think Fridae should consider to offer free advertising space to Ravi.
However, please note that during this period, we hope that Ravi can FOCUS on the landmark s377a case. I understand that there is an anonymous sponsor for Ivan Tan's s377a case, so Ravi should still be having business revenue while providing services to Ivan Tan.
And, anyway, this case is not Ravi's most risky one. He had represented Chee Soon Juan who was often at loggerhead with the most powerful persons on this land. So Ravi is not new to accepting risky cases.
Lastly, if you think that talk has little value, you might want to write to Fridae ask them remove the comments section.
i was involved in the tasmanian reform and it was very different, and a lot easier for us than the situation that confronts you.
it was easier because tasmania is a state and the federal government of australia, which in the end has massive powers of intervention, was breathing down the state's neck and pushing them to change the law. in addition, every other state had changed their law, so the tasmanian government was ostracised from all sides within australia.
the law itself had not been used for fifteen years. that it was there at all was probably an oversight.
activists went to the main police station in the capital to 'confess' their sex crimes and the police laughed and told them 'it's not our business, go home, we don't want any part of it.'
the general culture of the state was post-religious and secular. most people regarded the law as a joke.
this is not the south-east asian situation. i think i can safely guess that you are going to have to fight a bit harder than we did.
Well well ...that would sum things up very precisely .
"..Don't talk about us and tell us what we do, how we do , feel , think or behave ...cos we know how we feel , think , behave ....or more concisely ..F**K OFF ! .."
That's the western way for you.
Like I have said ...you do your own thing and we do our own ?...when you have solved yours ....we will show you ours ...how's that ?
Don't preach.
As always, she wears the gold and pearl pendant he gave her the day her divorce decree was final. They’re laughing over their menus because they know he always ends up diving into a giant plate of ribs but she won’t be talked into anything more fattening than shrimp.
So why are they having such a good time? Probably because they wouldn’t think of worrying about rules that seem absurd, anachronistic or – at best – unrealistic. Yet this same modern-day couple could easily be among the millions of people who never hesitate to lean on the Bible to justify their own anti-gay attitudes.
Quiz: How many biblical prohibitions are they violating?
Well, wives are supposed to be ’submissive’ to their husbands (I Peter 3:1). And all women are forbidden to teach men (I Timothy 2:12), wear gold or pearls (I Timothy 2:9) or dress in clothing that ‘pertains to a man’ (Deuteronomy 22:5). Shellfish and pork are definitely out (Leviticus 11:7, 10) as are usury (Deuteronomy 23:19), shaving (Leviticus 19:27) and clothes of more than one fabric (Leviticus 19:19). And since the Bible rarely recognizes divorce, they’re committing adultery, which carries the rather harsh penalty of death by stoning (Deuteronomy 22:22).
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