Final class of the semester, intended to show links between macro and micro-economics.

Guest speaker, Joshua Greene from the IMF.

There's certain things you can't expect even a perfect market to provide in the right quantities. You need government.

Fiscal policy and macroeconomics. Stabalization, including inflation around 1 to 3 percent. Output near potential GDP. Sustainable balance of payments. Tools used to accomplish this: gov't spending, tax cuts [sic]. ... Shift taxation from income towards consumption to reduce double-taxation of savings. (Joel's note: some opinions against this idea: 1, 2.) Spend in a way that raises productivity: better courts to support business, more operations and maintenance, health and education, skilled staff.

Microeconomics. Addressing market failure. Natural monopoly. Externalities. Public goods. Imperfect and asymmetric information. Incomplete markets due to adverse selection.

Professor Toh Mun Heng

From the NUS business school.

Example one: peak-load problem for mass transit. Economic theory says you should change more at peak times.

A seminar from the Law Faculty. The last event I attended here had perhaps 20 attendees. This one, on the legality of homosexuality, is standing room only, with media (which triggered an announcement by the moderator that, as is normal for these seminars, people are free to speak without attribution by name. That's the first time I've heard anyone at any lecture or seminar speak directly about press rules).

Section 377, banning "carnal intercourse against the order of nature with any man, woman or animals", commonly understood to criminalize bestiality, anal sex, and oral sex. Up to a life sentence in prison. This was revoked last month and replaced by a new section 377 which criminalizes only necrophilia.

Section 377a bans "any act of gross indecency with another man". It's still in force and is understood to ban male homosexuality. Up to two years in prison.

Criminal law

Legal argument: The repeal of 377 may have, technically, unintentionally, legalized male homesexuality. Legal background; it's messy, having to do with 19th century British law cut and pasted into colonial laws. If 377 is removed, decriminalizing unnatural sex between men, women, and animals, and replace it with a law that bans only sex between humans and animals, should that be interpreted to mean that unnatural sex between men and women is legal?

Joel's note: While he dives into legal minutiae, let me give you some selections from a speech in Parliament by Nominated Member Thio Li-ann in defense of 377A

[R]epealing 377A is the first step of a radical, political agenda which will subvert social morality, the common good and undermine our liberties. ... If we seek to copy the sexual libertine ethos of the wild wild West, then repealing s377A is progressive. But that is not our final destination. The onus is on those seeking repeal to prove this will not harm society.

According to the prof, the Law Society of Singapore has formally opined that gay sex is not harmful. Back to the quote ...

... but "harm" can be both physical and intangible; victims include both the immediate parties and third parties. What is done in 'private' can have public repercussions.

The harm that Thio seems to have in mind here is the kind that, as Dan Savage argues, is caused by being closeted, not by being gay.

As law has a moral basis, we need to consider which morality to legislate. Neither the majority or minority is always right – but there are fundamental values beyond fashion and politics which serve the common good. Religious views are part of our common morality. We separate 'religion' from 'politics,' but not 'religion' from 'public policy'. That would be undemocratic. ... Human rights are universal, like prohibitions against genocide. Demands for 'homosexual rights' are the political claims of a narrow interest group masquerading as legal entitlements. ... You cannot make a human wrong a human right. ... Science has become so politicized that the issue of whether gays are 'born that way' depends on which scientist you ask. ... Homosexuality is a gender identity disorder. ... Singapore law only recognizes racial and religious minorities. Special protection is reserved for the poor and disadvantaged; the average homosexual person in Singapore is both well educated, with higher income – that’s why upscale condo developers target them! Homosexuals do not deserve special rights, just the rights we all have.

Her speech continues for pages in the same vein, getting more repugnant with every page. While I've been sharing this speech with you, the prof has reviewed the arguments that gay sex cause harm through HIV/AIDS and paedophilia and found them wanting. We rejoin the seminar talking about morals.

Problems with "enforcement of morals" theory. Singapore's law is arbitrary with respect to morals; abortion is legal, prostitution is legal, "enticement" is legal, casinos have recently been legalized. In Singapore, a man who is gender-reassigned to a woman can legal marry a man. Not many countries have done this. Singapore has announced that 377A will not be enforced. Unenforced laws can be worse than nothing. Parallels from the abortion debate in Singapore four decades ago.

Constitutional law

There is no explicit privacy clause in the Singapore constitution, so I'll focus on the equality issue. Discrimination is legal in Singapore when it is based on "intelligible differentia", the differentia has a "rational relation" to the purpose, and the purpose is legal. Now that 377 is struck and 377A retained, the equality argument falls apart because sex between women is not included, etc. There is no rational relation to the "objects of the Penal Code" since it doesn't prevent harm, protect public order, or preserve public health. Supporting details include condom provision, gay bashing, HIV screening, etc etc. The only object is moral/religious, which is not a legitimate object. South Africa struck down a similar law on equality grounds. In the US, Lawrence struck down a similar law on privacy grounds, but O'Connor argued on equality. Same in Fiji and Hong Kong, which decriminalized gay sex in about 1991.

Conclusion: 377A is not justified in law, is not constitutional, goes against public health etc, contributes to hate crimes, puts Singapore out of step with the rest of the world.

Comment: The problem with your argument is that Singapore has adopted a (unclear) definition of rights. The law does pass muster on "rational relation"; you can define the group of "men who have anal sex with men" quite clearly. Once Singapore finishes shifting its definition of equality, then you can make that argument, but not with the law as it stands.

Comment: a concurrence that an intelligible differential can be found in "men who have anal sex with men". But that leaves out "men who have anal sex with women". ... By rejecting morality as a basis, you can then make your differential argument (since, if I follow, without a moral argument there's nothing special about men having anal sex with men versus various other combinations). But I need to be persuaded that morality is not a legitimate purpose for Parliament. If it's declared an avowed purpose, why is that not a legitimate purpose? Non-enforcement is another issue, because the person who decides whether to enforce is the public prosecutor, who is insulated from Parliament. How does that affect your arguments?

A: ... There's a difference of opinion on morals.

Comment: States in the US have submitted to a higher federal law that makes state morals subordinate to federal law, and US courts are right to reject morality. But Singapore's a unitary state. That strikes me as slight of hand; doesn't that just shift the issue to the morality of federal law?

Comment: What about animal welfare and morality? Whose morality are we enforcing? Sometimes the law should enforce morality. But I agree with the MP who said he's uncomfortable with Victorian-style moral laws.

Q and A about what offensive is.

The penal code shouldn't deal with some of this: for example, if necrophilia is banned, and bestiality isn't, what about sex with dead animals? The penal code shouldn't need to address this.

A symbolic law that isn't harmful may be okay, but this symbolic law clearly causes harm.

Q: Singapore is the only first-world country (out of 31 under IMF criteria) which bans homosexual sex. Why are we still in this position? There was no AIDS in the 1880s when the law was written; it's just a smokescreen. What is an act against nature? What about in-vitro fertilization? They said the anus is for the excretion of waste - so they won't get colonoscopies? (I trimmed a very long-winded non-question.)

A: ... I take offense to your attack on my colleague (says the prof who argues 377A is unconstitutional to the rambling commenter)

Q: this curious animal, the unenforced law. I suppose there's an analogy to jurisdictions which have a moratorium on the death penalty but still have the law on their books. Perhaps that's the closest parallel. (The tone in the room got a bit awkward as the moderator tried to bring the previous rambling commenter to a point)

Q: It's a Christian morality, which we've seen defended by a Christian minority. It worries me, when it came to abortion and to casinos, Christian concerns were rejected by the government, but on this issue, it was different. Why does this Christian morality win the day when Christians are only 15% of Singapore? A: that's a difficult question, I'm just a humble lawyer. ... This is not just a Christian; may not be in Hinduism, Taoism. But it seems to me this could end up a turning point in Singapore politics. MM Lee and his legacy have been pragmatism. Here was a narrow and open debate on ideology. I think pragmatic reasons point clearly to legalization but the government didn't go that way.

Q: I want to go back to your first point. I can see the headlines tomorrow: NUS law prof says homosexuality now legal. (A: I was just being provocative.) You are arguing that 377 was the law that banned male anal sex all along and everybody was arguing the wrong section. A: not exactly. Why are there two different sections with vastly different penalties? Historical formation of the law.

Q: India is going through a similar issue (Because of the common colonial origin, the Indian law is also section 377.

Q: you spent a lot of time talking about equality, but the constitutional issues in Lawrence are concerned with liberty.

Joel's note: As a post-script, here's Thio Li-ann's article in the Straits Times defending her speech:

"Can we disagree without being disagreeable?", Thio Li-ann, The Straits Times (Singapore), 26 Oct 2007.

Why, in the interests of objectivity, had the 'ex-gay' phenomenon not been investigated?

[...]

I hope Singapore will not end up with an uncivil civil society by allowing public debate to degenerate into fruitless name-calling and distorting issues by speaking misleading half-truths.

[...]

Furthermore, specific issues should be debated, rather than making emotional and vague appeals to 'fairness', 'equality', 'inclusivity' and 'tolerance'. The concrete issue is: What should we exclude or include?

[...]

To approach morally controversial debate with maturity, the solution is not more government, but self-government.

To recap: Why can't I deny you your rights without you getting upset about it? We should discuss the misleading, mostly untrue 'ex-gay' phenomenon but not speak misleading half-truths. Please make your argument against banning male homosexual sex without using fairness or equality. We can use self-government while we debate the government prohibition against you. You can dig up the whole thing in your local library but it's not any more coherent that my excerpts.