anotherlongshot (anotherlongshot) wrote,

The challenge of proper reasoning.

I totally loved my Comparative Constitonal Law: Rights (hereinafter and in subsequent entries, "Comparative Constitutional Rights") class, taught by Dr K, today. Before I fully delve into why, my anal retentiveness needs to mention the fact that I signed up for this class as a back-up course when I dropped International Law of Self-Determination in order to do a dissertation (some writing limit thing, the details of which are utterly boring and which I bitched about at length during the relevant time, and I'm not interested in rehashing it). I didn't want to take any comparative constitutional law classes at first because I took the one taught by Mark Tushnet in NUS, so it didn't seem to make sense to take it again; but this course was the only interesting course left on the list of available courses, so I signed up for it.

Fortunately, good fortune smiled upon me and I was lucky enough to get in to this over-subscribed class. I say that I am 'lucky' in this regard, not simply because Dr K is my favourite professor by a mile so far (though I haven't had the Conor Gearty experience yet - that will take place tomorrow at 2 p.m.), but also because of the utterly novel experience of listening to someone who did not bother to be politically correct about his utterly biased, purely Western (I think I can safely make this claim) view on the superiority of liberal democracies to everything else that the world has to offer. As if calling comparative constitutional practices between Europe, the US, Canada and South Africa a "global" dialogue between constitutional courts wasn't arrogant enough; he went on to say - or at least agree with someone's suggestion - that these liberal democracies are in a good position to "teach" the rest of the world and enlighten them. He was also completely candid in saying that, as a prima facie issue, he would have little interest in reading case law from a country like Saudi Arabia on gender equality.

A student from somewhere in Central Asia (I didn't quite catch the country) understandably called him out on what the student termed Dr K's ethnocentrism, and this was when he said that he thinks that a liberal democracy is - I paraphrase but the gist is there - the best form of governance.

Obviously, the knee-jerk reaction is to do what the student did and accuse him of ethnocentrism. Even I was a bit uncomfortable at one point and I didn't disagree with him about anything that he was saying in principle, and I was uncomfortable enough to actually put up my hand to say something (he went to someone at the back and then I forgot what I wanted to say and thankfully he didn't get back to me). But here's the thing: his views may be politically incorrect, but they are not wrong; they may be arrogant or ethnocentric, but they are extremely valid. When one defends one's system that's under attack from someone from the West who seems to be advancing some neo-imperialism point of view, does one stop to think about what one is defending? Case in point: Dr K told me to look for a theoretical angle for the essay that I initially wanted to do about the section 377A constitutional challenge, an example of which would be to see whether the approach taken by the Singapore courts would demonstrate some defect in, for instance, the proportionality test. However, I couldn't think of anything because I know that the Singapore courts do not engage in a good faith reasoning of rights in the rare instances when these issues come up for judicial review.

I'm going to limit this purely to Singapore because it's what I know. What are we defending when we defend Singapore against opinions like Dr K's which basically assert that our illiberal democratic norms and therefore case law on constitutional rights have little to add to the "global" (I object to this term but whatever) debate taking place in the liberal democratic world? What do we mean when we say that we have to retain some form of Asianness or even "Asian values", a phrase that I hate with all my heart, when it comes to issues relating to rights? The politicians and judges like to say that we can't look at case law from other countries to decide rights-related issues because Singapore's circumstances and context are different; but what makes us so different? There is nothing unique about Singapore that justifies this claim - and this is exactly the problem that I have with people that try to defend this perspective. If we want to talk about size, Singapore isn't the only small country in the world, and in any event, it is unclear how the issue of size is relevant to the issue of rights. If we want to talk about racial make-up which is marginally more credible, it's even more obvious that Singapore isn't the only country in the world to be comprised of a multi-racial populace.

Here's the larger problem: when we defend Singapore against ethnocentric claims, we are defending a body of case law on constitutional issues that contain little actual reasoning about why some rights should be curtailed or should not be protected. It seems to me that the starting point for the courts is that the rights restriction or curtailment validly serves a legitimate public interest...actually, that might be the end of the discussion. Put in another way, the theoretical approach to rights adjudication (limited as they are) in Singapre is that the individual's interest is subjugated to that of the safety of the people and the safety of the state.

It may not be immediately clear why this is objectionable and why, on a more personal note, it pisses me off so much. Let me try to explain it. When we talk about interests that are constitutionally protected as fundamental liberties, we are talking about something that is more important and which carries greater normative value than interests that are not so protected. There has been numerous theories put forward by philosophers, mostly from the Western liberal democratic tradition, on the theoretical foundations of human rights and what it is exactly about the individual that ought to be protected by rights; for the sake of this entry, I will say that rights demarcate that part of a person's autonomy that he must have control over without external intereference to be able to meaningfully say that he is a human being imbued with dignity and who possesses the freedom to lead his own life autonomously. In this regard, the function of freedom of religion is to, first, disable the state from dictating to the individual what his religion ought to be, because it violates his autonomy; and second, enable the individual to exercise his autonomy decide for himself what religion he believes in, if any at all. This is the most basic function of human rights and I would go as far as to say that it is indisputable. It is not even theoretically up for debate from a non-liberal democratic point of view, whatever that even means.

My problem with the theory of rights seemingly adopted by the Singapore courts is that this theory of "rights" is philosophically incoherent and it is not actually a theory of rights. It's a theory of something, but it cannot be seriously said to be a theory of "rights". You cannot have a theory of rights - a genuine, good faith theory of rights - that asserts that the safety of the people and of the state are the supreme law (too lazy to type out long Latin maxims) to which individual interests must yield because this is exactly what rights are not about. Of course, the point would undoubtedly be raised that the basic theory of rights which I sketched earlier is espoused by Western philosophers and thus we should be slow to adopt it to suit our Asian context (whatever that even means). To this, I have two things to say: 1) why have rights at all if their Western origins are so objectionable?; and 2) give me an alternative, a real alternative, to this "Western" perspective of rights and I will see if it's valid or palatable.

What's the alternative that we've been offered by the courts? Community > individual; individual loses. Too bad.

I was a bit unfair when I said that there's no reasoning in the cases; there is obviously reasoning. It's just really, really bad reasoning. It's the kind of reasoning that distorts the nature of rights until they are unrecognisable; it's the kind of reasoning that does not engage at all with the philosophical underpinnings of rights that are so important in explaining why rights themselves are important. The most that the courts deign to do is to sweep them aside and say that they are Western, we are Asian, this is Singapore and our context is unique, and therefore cases from other jurisdictions are not relevant. Have they adequately or sufficiently articulated what is so unique about Singapore? Have they reasoned at all, in a logical and coherent manner, why the individual must modify his rights to suit the needs of the community? Have they articulated at all a theory of rights that is actually about rights and not about anti-rights?

This is why Singapore's constitutional case law is utterly indefensible against ethnocentric claims. I am self-aware enough to know that I am biased towards the liberal democratic tradition because that's how I've been taught in law school by professors that actually taught me something useful and interesting; but the alternatives are simply not attractive to me. To me, appeals to culture, history, context, regional particularities, by authoritarian figures that seek to repress or curtail or restrict fundamental rights (I'm not talking about frivolous things like the right to sleep well at night and other assorted prima facie rights that the Europeans engage) are disingenuous because they are not well-articulated, let alone well-reasoned. If you want me to believe that I am different from a European by virtue of the fact that I am Asian, I would demand to hear some solidly-reasoned arguments about what it is about my Asianness that makes me particularly vulnerable to rights curtailment, or makes me less worthy of being protected by fundamental rights. That's essentially what's happening, is it not? Why are gays in Singapore less worthy of the equal protection of the law than gays in Europe? If it's a public morality issue, or if it's simply because the majority of Singaporeans find homosexuality disgusting, then it's simply bad reasoning.

In a way, I feel kind of sad that I don't have anything to contribute from my home jurisdiction. It's also for this reason that I really, really hope that the Court of Appeal reverses the trend of shitty constitutional law cases and does something right with the section 377A thing. Even if it did what is to me the unthinkable and upheld the constitutionality of the law, I would definitely hope that it did so with principled reasoning, taking fully into account what rights are actually about.

On another note, I must say that I'm really loving what my classes - the interesting ones - are doing for my thinking skills. It's forcing me to be consistent in my opinions and it helps me recognise the instances when I'm not consistent, or when my reasoning is unsound. For instance, I discussed my essay topic with Dr K after class and I said that I wanted to do something on whether there exists a right to simulated child pornography or necrophilia, and he said that Germany recently made beastiality a crime; and since I seem so inclined towards these shady things, maybe I could consider writing about that. I said flatly that I could never, because I like animals too much; he replied equally flatly that it's bad reasoning. And it is.

Just to be clear, I have no personal interest in whether someone should be allowed to watch simulated child porn or fuck a dead body. I'm actually more personally invested in whether someone should have the right to kill himself in whatever circumstances. Unfortunately, I fear that I may not find something original enough to say on suicide or euthanasia to help me write the best essay of my life; and more importantly, I am interested in these shady topics precisely because they are disgusting and unsavoury and popularly considered to be morally wrong, and thinking about whether there is a sound basis for their criminalisation helps me test the limits of my liberal point of view. I think it's more fun than taking on something that isn't as controversial.

Okay, I'm just weird.

Anyway, I had more to say but I'm really really really tired as I'm still somewhat jetlagged, and the fact that it's 1.37 a.m. means that I've just stayed up all night Singapore time, and I want to wake up at 8 am to watch Roger against Davydenko, so I really have to go to bed now.

Lastly, I'm really into Coldplay these days. I bought X & Y and Mylo Xyloto from iTunes and I really like them. For some reason, I really LOVE Every Teardrop is a Waterfall. I slept on the plane to their live performance somewhere and woke up to this song and it gives me a good feeling when I listen to it. It's great.
Tags: coldplay, human rights, law, llm, singapore

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