I weighed in the 377A debate and all I got was this lousy T-shirt

Part I of 2

I hope you're happy... I hope you're happy now! I hope you're happy how you've hurt your cause forever, I hope you think you're clever...

Fellow conservatives, Professor Thio Li-ann has failed us all. I speak of course about her contributions in the 377A debate, of her fiery speech in Parliament and her defence of how fundamental religious viewpoints must be allowed expression in public policy making in the context of a secular society.

But wait, you say. Did the eminent Professor Thio, in her impassioned speech, not scuttle the gay agenda to repeal 377A, and halt our nation's slippery slide into the endorsement of homosexuality as an acceptable lifestyle, gay marriages, and weekly gay pride beach parties at Sentosa? What can possibly be lacking in how Thio has served the conservative cause, you ask.

We must go back to the first principles: What is an NMP supposed to do? Who is Thio Li-ann, and why has she been appointed to serve as an NMP? Is she serving her role as an NMP, in a manner that adheres to constitutional and historical expectations of NMPs?

As the constitution states, the list of candidates are proposed by the public to the Special Select Committee, who eventually appoint the Non-Elected Member of Parliament.

The criteria for selection?

The persons to be nominated shall be persons who have rendered distinguished public service, or who have brought honour to the Republic, or who have distinguished themselves in the field of arts and letters, culture, the sciences, business, industry, the professions, social or community service or the labour movement; and in making any nomination, the Special Select Committee shall have regard to the need for nominated Members to reflect as wide a range of independent and non-partisan views as possible.

In practice, all NMPs have been chosen for their expertise in their respective fields, or for their leadership roles in civil society groups, special interest groups, or minority groups. Hence, the list of NMPs include Malay businessmen, law professors, the heads of aging associations, AWARE, environmentalists, and so on. These NMPs have steered Parliament through difficult issues, providing their professional views and unique viewpoints. This is a system that, despite serving to co-opt dissent and opposition into a "non-elected" representation scheme, works.

And then, we have Thio Li-ann. She's a law professor, an expert in constitutional law and human rights law. She's not uncritical of the NMP scheme, and very critical of the changes Parliament has made to the Elected Presidency since its creation. By all accounts, Prof Thio understands the role she is expected to play.

Back in her appointment to the non-elected seat, she proposes several areas of jurisdiction that she expects to advise Parliament on. They are all constitutional issues - "She wants to scrutinise legislation on the Elected Presidency, for example, and probe further into the mechanics and powers of the presidency." (Lynn Lee and Sue-ann Chia, "Looking forward to advance the debate", in ST Review, 9 Feb 2007)

Note there is no mention of her staking out the repeal of 377A as a platform she is interested in. Nor does 377A fit coherently in the bag of issues that her expertise should touch on. Yet for all this, Professor Thio's maiden speech in Parliament is a pungent, stinging attack on homosexuality. Yet for all this, her entire attack on homosexuality was based on the morality and moral repugnance argument. Her subsequent articles in the Straits Times defends her attacks as a legitimate expression of religious convictions in a secular state.

In the midst of all this, it is easy to forget that Thio Li-ann is an NMP selected for her expertise in the law. One would have expected, if Thio were indeed fulfilling her role as prescribed in articles 39.1.c and 44.1 of the Fourth Schedule of the Constitution of Singapore and as established in the practice of her predecessors, that Thio would have at least provided the one viewpoint and area of expertise that her colleagues in the entire Parliament could not.

But we haven't heard her speak from a legal or constitutional basis on the 377A debate. Astonishingly for a legal expert charged with educating the nation's future lawyers, there is not a bit of legal theory in it. Where, when we need her expertise most, is the legal reasoning whether to keep or repeal 377A? Where, when the debate is clouded with categorical morality arguments from the right and unbending liberal rhetoric from the left, is the voice of reason, the clear-headed and non-partisan voice of a law professor?

Instead, we find that we might as well have elected Pastor Kong Hee as the NMP, who could have given the same speech Thio gave in Parliament.

If there is a constitutional argument for not repealing 377A (note that I do have one for repealing 377A!), Thio Li-ann has not made it known. Shocking! She could well be batting for the gays, since her utter reliance on the moral repugnance argument suggests that there isn't a constitutional argument for keeping 377A.

The pro-377A faction doesn't need an Alex Au, a gay agenda, or a well-organised campaign as their enemies. They have Thio Li-ann, and that is sufficient.