By Melissa Low
So a gay couple, Kenneth Chee and Lim Meng Suan challenged S377A. They’ve been together 15 years and though they haven’t been caught in a homosexual act, they are fed up with the injustice of the law existing in the first place.
Their challenge was dismissed, and the judge gave the following reasons:
1) It is a societal norm that has yet to “gain currency”.
So his argument is that society doesn’t accept homosexuality, therefore the law cannot change to reflect that. But it’s a chicken and egg situation. The law is not only informed by people’s views, but people’s views are also informed by the law. How are we meant to accept something if the law says it is illegal to do so? Has a nationwide survey or referendum on this topic been taken? No. When explaining why S377A could not be repealed in 2007, the Parliament used a few shady indicators to show negative attitudes of majority of Singaporeans.
Even IF homosexuality is not accepted by majority of Singaporeans, it still does not mean it should be criminalized. There are many things that conservative Singaporeans would frown upon, like people with many tattoos or people with promiscuous lifestyles – but these things are not illegal are they? There is a chasm of difference between societal stigma and actually being imprisoned for doing something. You can’t help the fact there will always be ignorant people in society. But our sex lives are our private lives and the state has no business interfering with what people choose to do. Criminal laws are meant to protect society from harm and danger, and gay men bumming in toilets certainly don’t harm anyone.
2) It is up to Parliament not courts to decide on these moral issues.
Okay. For those who don’t understand the structure of our state, here it is.
There are 3 parts to the ruling powers of the state:
1. The legislature (Parliament) makes laws.
2. The government carries them out.
3a. The criminal and civil courts deal with disputes and apply the laws according to the legislation. When there is a grey area, they apply the laws to their best interpretation and subsequent cases use the previous case precendents as support.
3b. The constitutional courts deal with laws that are unfair, unjust or unlawful and challenge the validity of these laws. In successful cases, the law is declared invalid for the case and not applied to the case. It then sends like, a notice to Parliament who then reviews the law and sees if it should be changed.NOTE: IT DOES NOT CHANGE THE LAW, ALL IT DOES IS INVALIDATE THE LAW FOR ONE SPECIFIC CASE AND DRAW PARLIAMENT’S ATTENTION TO IT.
What Justice Loh said in his judgment about it being Parliament’s not the court’s prerogative was absolute nonsense. In a 3-pronged state with separate powers, all of them have a responsibility in decision making. If citizens of any country have a problem with unfair laws, they have 3 methods of redress:
A. Voting on the specific issue
C. Challenging them in court.
The government has taken away 2 out of 3 of our methods of redress by not facilitating a vote on this important issue and criminalising protests. And now, we don’t even have the courts if all the courts do is to defer everything to Parliament like Justice Loh did.
3) Criminal laws may not need to be enforced to be useful.
Yes, we get that many laws work through their deterrent not punitive impact. We’d all rather people be deterred by the law and not murder someone, rather than murder someone and go to jail / be hanged. However, the law still exists, and that stands as a risk to those who it labels as criminals. All homosexuals are now criminals in the eyes of our law. That the government picks and chooses when to apply the law does not make it better, it makes it arbitrary and even more unfair.
4) Art 12 does not mean all people are equal, it means all people in similar situations are treated equally. Straight and gay people are classified in different situations. So they are not equal.
Don’t you get it? The classification itself of people into different sexual orientations IS the source of the inequality. So by arguing that we can’t treat people equally because we classify them is an entirely circular argument.
This judgment is a reflection of the appalling lack of democracy. Democracy isn’t just about voting for President, it’s about the state listening to us as individuals speak out about important issues. Loh’s judgment dismissed the arguments of Chee and Lim (and their lawyers) as without merit, without himself giving a single logical reason.
Justice Loh either isn’t capable of exercising the high intellectual standards expected of a High Court judge or simply doesn’t feel the need to be accountable to the people in his judgments. This is apparent in his circular logic and ultimately pushing the question away from the courts towards Parliament. And this exact circular logic was also employed by Lee Hsien Loong when explaining why S377A was not repealed in 2007.
Being homosexual is a basic human right which exists in first world countries. The state listening acutely to its people is what democracy is about. It is bad enough that Singapore is on the United Nations watchlist for human rights infringements. Worse, our courts rule against a basic human right with logic so shabby it can only be construed as patronizing.
If the leaders of Singapore are going to carry on with being lazy in intellectual reasoning, we will never progress in thought as a society. If the leaders of Singapore are going to keep appeasing the conservative sector of society by imprisoning the minorities, the social deviants and the revolutionaries, we are never going to progress further than our clean streets.[divide]
This article first appeared in Melissa’s blog post, “Singapore, the proud land of anti-gay law”