Skeletons in the Closet: A Legal Response to s.377A

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NOTE: This is a strictly legal response to s.377A, transcending the pointless clutter of morality, religion, liberty, discrimination, etc, which so many have assumed to have a place in judicial reasoning. Briefly, arguments about equality and discrimination do not influence legality simply because: Who is anyone to say one person’s version of morality/discrimination/… supersedes another’s? Turning to the law…

The Singapore model has been widely, and sometimes gratuitously, cited as the pinnacle of efficient democracy; one that has allowed the practicalities of a young, ill-resourced nation’s survival to occasionally eclipse luxurious, and therefore secondary, indulgences of nebulous human rights and equality.

As a Singaporean presently studying in London, it is neither coincidence nor naiveté that has prompted many of my law course mates to ask about our perceived bans on chewing gum and pictures of shirtless male models. After the initial chuckle toward such creative inaccuracies, I have tried to defend our stance: while Singapore law enjoys an exaggeratedly harsh image to many in the international community, it is not enacted or applied without due consideration to Singapore’s constraints. The fact that the British model of democracy is in many respects incongruous with the American federal system of governance holds testimony to how democracy must be tailor-made and custom-fitted to the specific geographical, social and political milieu of each country.

However, the recent dismissal of the constitutional challenge that s.377A poses by the High Court (link) provides an extremely discomforting perspective on just how endemic the problems are in the relationship between Parliament and the judiciary. I shall systematically provide views on snippets from the aforementioned article by Channel News Asia (CNA).

1. In his 92-page judgment, Justice Quentin Loh said that in Singapore’s legal system, whether a social norm that has “yet to gain currency” should be discarded or retained is decided by Parliament. Parliament voted in 2007 to retain Section 377A.

Predictable move. While relentless ping pong between bodies reluctant to make decisions is not exclusive to Singapore, the fact that the constitutionality of a statutory provision which discriminates against homosexuals is defended by evoking “social norm(s)” shows the lack of a separation of powers between Parliament and the judiciary.

Whether s.377A is constitutional is strictly a matter of law; the courts should not base judgements on the preponderance of social attitudes. Furthermore, Parliament retains complete power over the decision to amend or repeal s.377A, even if the court has ruled against its constitutionality. One of the biggest responsibilities of the judiciary is to prevent the arbitrary exercise of parliamentary sovereignty,which has long been deemed a doctrine that does not hold much water (Jackson v AG, etc), by upholding the rule of law. Does this mean that murder will be constitutional if it becomes a norm that has gained currency? Is the majoritarian viewpoint the sole benchmark for law enforcement? Whatever happened to protection of minority interests? Let’s drink to elective dictatorship!

2. “In the case of Section 377A, the legislature has decided that retaining the Section without advocating the enforcement is enough to fulfil the purpose of Section377A.”

Because that’s what the law is all about—non-enforcement. When the very essence of what the law means, i.e. it need not be abided by or obeyed seemingly in some circumstances, has come under serious ambiguity, the common man not only needs to know what is legal or illegal conduct, but which are laws that will be enforced by the courts.

3. As for Article 12, Justice Loh noted that Parliament is entitled to pass laws that deal with “the myriad of problems that arise from the inherent inequality and differences pervading society”. In doing so, it is “inevitable that classification will produce inequality in varying degrees”.

Is the court alleging that the way Parliament rectifies inequality is to create inequality, or does this simply reveal a reluctance to correct inequality which is too ‘”inherent” and therefore inevitable? Maybe it’s just too literal an interpretation of the idiomatic “fighting fire with fire”…

4. The views aired during the parliamentary debate in 2007 “are without a doubt controversial and disparate among various segments of our society”, but what is clear is that “Parliament has decided that Section 377A should be retained”, said Justice Loh.

Again, the separation of powers between the legislature and the judiciary is being called into question. The constitutionality of s.377A and the repeal of s.377A are different issues altogether.

5. “Our courts cannot substitute their own views for that of Parliament,” he added.

See point (4). While the courts must interpret statutes according to parliamentary intention, there is little point in having two institutions echoing the same duplicitous mantra all the time. Duty to Parliament must be counteracted with duty to the people. When fundamental human rights have been infringed, the courts have a responsibility to uphold their validity. This is the only way of preventing despotism and tyranny, at least according to Montesquieu and “the father of the US Constitution” James Madison.

6. The judge has reserved judgment on the second challenge brought forward by Mr Tan Eng Hong.

We seem to still be operating under the assumption (or presumption, which then must be rebutted) that the judiciary inhabits a political dimension.

As much as the s.377A hearings symbolise the pioneering of a heretofore unseen, and therefore encouraging, sign of judicial willingness (not activism) to address issues that are traditionally off-limits, how well such issues have been addressed create undulant repercussions not only in legislative history but the personal lives of many, if not all, citizens. We are as defined by the challenges we choose to confront as the ones we refuse to conquer.