Constitutional right against discrimination is a challenge for all of us

Article 155 of the Constitution of the Republic of Singapore (Image - Loy Zihao 2010, Wikimedia)
Article 155 of the Constitution of the Republic of Singapore (Image – Loy Zihao 2010, Wikimedia)
By Howard Lee
It was a verdict that most people might have expected, and even lawyer M Ravi, with the best commendations to his effort, might have anticipated the final outcome.
Yesterday, the Court of Appeal ruled against the two Constitutional challenges mounted by Tan Eng Hong, Gary Lim and Kenneth Chee, who have sought to remove Section 377A of the Penal Code – the law left over from our Colonial days that criminalises sex between gay men – on grounds that it infringes on their right to equal protection under the law and violates their right to life and liberty.
But what might have surprised some is the way the three judges sitting the two cases ruled in favour of Section 377A, in particular how it relates to Article 12 of Singapore’s Constitution.
As reported in The Straits Times:

“While Article 12 guarantees equal protection, the courts have long held that lawmakers are allowed to pass laws that treat people differently – if it is based on a reasonable classification.
…Under this (reasonable classification) test, a statute that differentiates is constitutional if the classification is based on an “intelligible differentia”, meaning a distinguishing feature that is discernible, and if the differentia bears a rational relation to the objective of the law.
… The court went on to note that Article 12 does not address the issues involved in Section 377A. While the provision specifically prohibits discrimination based on religion, race, descent or place of birth, the words “gender”, “sex” and “sexual orientation” are noticeably absent.”

Not very meaningful for the layperson, unless we also take a look at what Article 12 of our Constitution says:

Equal protection
12.—(1) All persons are equal before the law and entitled to the equal protection of the law.
(2) Except as expressly authorised by this Constitution, there shall be no discrimination against citizens of Singapore on the ground only of religion, race, descent or place of birth in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.
(3) This Article does not invalidate or prohibit —
(a) any provision regulating personal law; or
(b) any provision or practice restricting office or employment connected with the affairs of any religion, or of an institution managed by a group professing any religion, to persons professing that religion.

Taking the court’s ruling and Article 12 together, the same layperson might find it slightly puzzling. Article 12 basically grants the right against discrimination to all Singaporeans, specifically in how they will be treated in a court of law. Is the court then saying, but ruling against the appeal, that lawmakers can ignore the mandate of Article 12 in preference for other laws, so long as there is grounds for a “discernibly distinguishing feature” in the person involved?
Granted, a gay person is “discernibly distinguishable”, particularly if he flouts Section 337A in public. But what then of other equally distinguishable traits?
For instance, a pregnant woman who gets fired from her job seeks redress on the basis of discrimination. Can the court rule in favour of her employer given that she is “discernibly pregnant”? Of course, I forget – our Employment Act might hopefully offer some protection.
How about those with other traits, traits that often belong to you and me? Single-parent family. Been to jail. Graduated from a specific school. Short in built. Has brown eyes. Has yellow teeth. Has a big nose. Father of three. Father of none. The quiet sort. The noisy sort. Uses mobile phone frequently. Doesn’t use mobile phone frequently enough. Likes to wear pink. Hates pink…
The permutations are endless, and at some point would become ridiculous.
If a particular group is distinguishable for any reason, does it also then mean discrimination against them, if not in contravention to any law, is perfectly reasonable under our Constitution?
Even more oddly, is the court also saying that so long as the discrimination is not “specifically prohibited” under Article 12 – that is, not based on “religion, race, descent or place of birth” – it is either not discrimination, not in contravention to the constitution, or doesn’t really matter?
If so, this is extremely odd indeed. The basis of Article should be inclusive rather than exclusive, and in fact, its words does not seem to give the impression that only discrimination based on religion, race, descent or place of birth is prohibited.
Or is the courts reading – and a very close reading, at that – only the letter, rather than the spirit of our Constitution?
We are fed on a staple of “race and religion are sensitive issues”. As our society matures and become more complicated, we find this might not hold true. Issues of class, wealth, family structure, political beliefs and even personal beliefs have become potential spark points. Why would we want our Constitution to reflect our concerns of the past, when nothing in it prohibits us from taking it into the future?
I believe that every citizen now has a right to be concerned by this ruling. Judgements in court are regularly passed based on precedence of past cases. If this is the benchmark for how we approach our Constitution, everyone who has a “distinguishing feature that is discernible” is at risk of unfettered discrimination without any protection.
Sadly, some of us might already have lost faith in the ability of the Constitution to protect us. Blogger Alex Au reflected this sentiment well:

“If you sit back and take in the bigger picture, you’ll see that basically our constitution, as long interpreted, offers no protection for civil liberties or human rights: not freedom of speech, not freedom of assembly, not a right to transparent and accountable government, nor even a fair electoral process. The questions rush in. Is there something wrong with the Constitution, the interpretation, or both? What is the overarching social and political context that makes this the reality?”

Is this what we want as a society? If not, then we must necessarily see that the discrimination that plagues any citizen – be it on account of their sexual orientation, skin colour, the causes they champion or something as basic as the families they are born into – is an issue of concern for all citizens. The Constitution binds us all as Singaporeans, and to it we must respond.

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