By Teddy Wee
After reading the full judgment of the s377A constitutional challenge…I can only say 3 things.
I am disappointed the plaintiffs didn’t argue for the illegitimate purpose of s377A and the judge had to argue it for them (good job Justice Quentin Loh!). Ever since I studied Constitutional Law, I always thought the legitimacy of the statute was the only way to go when attacking s377A, given the formalistic and restrictive nature of the “rational relation” test for Art12 equality. The two-step test is way too easily fulfilled.
I am pretty sure Justice Quentin Loh contradicted himself at para 127 when he talked about his second reason why s377A is not illegitimate. He had earlier said the purpose of s377A was strictly to criminalize male homosexual activities at para 67, and that issues such as procreation and family unit are merely reasons to support retention and not purpose (see para 84). If so, he could not have used procreation and lineage as a grounds for justifying the legitimacy of the statute, since those concerns were only reasons to support retention.
Also it seems strange to talk about lineage and procreation to justify the legitimacy of s377A. It’s hard to see how decriminalizing s377A will somehow discourage procreation, or that criminalizing homosexual sex will raise fertility rates for that matter.
The legal reasoning by the judge is meticulous and over all sound, except the part on the legitimacy of s377A. The purpose of s377A has been framed by him in an extremely narrow and simplistic manner, “to criminalize male homosexual conduct”, and it is difficult to poke holes at what he has convincingly established as a matter of fact through his extensive legal research and reasoning.
However, it is still possible to launch an attack on the over all legitimacy of s377A. The first of the two reasons he gave hinged largely on English common law tradition and Christian religion (see para 121). It’s a pretty big clue to me that Justice Quentin Loh is either secretly supporting the repeal by giving the plaintiffs grounds to attack on appeal, or that he’s just subtly telling the Singapore Parliament to stop blindly following archaic English tradition and Christian religion.
Also there’s the whole possibility of s377A being under-inclusive (not penalizing females) under the 2-step test that was not really well tackled, but that’s another story for another day.