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A difference of opinion between the Gov’t and the Court of Appeal?

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By Ariffin Sha

Does Article 12 of our Constitution guarantee equality before the law for the LGBT Community? The answer to that might seem like a straightforward and unequivocal no. Even more in the light of the Court of Appeals’ decision to uphold Section 377Aa of the Penal Code in a Constitutional Challenge.

Section 377A of the Penal Code is a law which criminalizes sex between mutually consensual men. It states - “Any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to 2 years.”

Two separate Constitutional Challenges to strike down Section 377A were heard in the Court of Appeal in July. Both the cases contended that the provision is discriminatory and should be declared void by the court, as it infringes their right to equal protection under the law, as guaranteed by Article 12 of the Constitution.

For those of us who aren’t familiar with Article 12 our Constitution, here is an excerpt.

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…

In the Court of Appeal’s 101-page written judgment delivered on 29 October, it rejected their arguments and ruled that Section 377A is indeed constitutional.

As for Article 12, the court held that Section 377A passed a classification test used by the courts in determining whether a law complies with the constitutional right of equality.

The court also ruled that Section 377A fell outside the scope of Article 12, which forbids discrimination of citizens on grounds including religion, race and place of birth.

The court observed that Article 12 did not contain the words "gender", "sex" and "sexual orientation", which related to Section 377A.

Prima Facie, the way Article 12 and Section 377A are worded does seem to support the Court of Appeal’s ruling. Section 377A does not discriminate citizens on the grounds of religion, race and place of birth.

Although it does discriminate against gender, sex and sexual orientation, the right not to be discriminated on these 3 grounds is not specifically enshrined in Article 12.

However, in July 2011, a statement which apparently  contradicts the Court of Appeal’s ruling was made by a team of Government delegates led by Speaker of Parliament, Mdm Halimah Yaacob, during the CEDAW (Committee on the Elimination of Discrimination against Women) Convention in New York.

Here’s what the Singapore Government stated in paragraph 113 of Singapore’s Fourth Periodic State Report for CEDAW [emphasis added]:

  1. The principle of equality of all persons before the law is enshrined in the Constitution of the Republic of Singapore, regardless of gender, sexual orientation and gender identity. All persons in Singapore are entitled to the equal protection of the law, and have equal access to basic resources such as education, housing and health care. Like heterosexuals, homosexuals are free to lead their lives and pursue their social activities.

Nowhere in our Constitution is there any reference made to “gender, sexual orientation and gender identity” although the Government’s report affirms that the principle of equality of all persons before the law is enshrined in the Constitution regardless of those three grounds.

There seems to be a clear contradiction in the interpretation of our Constitution here as there are two seemingly contradictory statements – one by the Court of Appeal in their recent judgement and one by the Singapore Government in their report to CEDAW.

However, in a parliamentary debate on section 377a in Parliament in 2007, PAP MP Indranee Rajah explained what she thought the law meant vis-a-vis Article 12(1) of the Constitution which provides that all persons are equal before the law and are entitled to the equal protection of the law.

“What Article 12(1) really means, by way of an illustration, would be this.  If somebody is charged with theft, for example, you cannot say that, "I will prosecute you if you are a homosexual, but I would not prosecute you if you are a heterosexual."  That would be an unequal and discriminatory application of the law. So that is what it means when you say that all persons are equal before the law.  We do not look at your sexual orientation in determining whether or not you should be prosecuted or you should be charged.”

Ms Indranee is now the Senior Minister of State, Ministry of Law and Ministry of Education.

It is unclear if her views in 2007 reflect that of the present Government.

Activist Alex Au, however, took a wider view of Article 12(1), when he wrote of the Court of Appeal’s judgment. [See here.]

“Any intuitive reading would arrive at the conclusion that it was meant as a general overarching principle — and general principles are executable; they’re not just declaratory and aspirational — with Article 12(2) clarifying and strengthening it when it comes to specific borderline instances.”

In other words, it cannot be that the Court of Appeal is saying that state discrimination of any kind is acceptable, except those enshrined specifically in the Constitution, such as “religion, race, descent or place of birth”, as indicated in Article 12(2).

Yet, that seems to be exactly what the Court of Appeal is sayingthat it is not its business to decide if any discrimination is unconstitutional (except those mentioned in Article 12(2) specifically) and that it can only limit itself to deciding if the discrimination is provided for under the law.

As Mr Au said:

“Here’s the irony: Since the court intends only to assess the executional aspects (intelligible differentia and rational relationship) of discriminatory laws, it is largely saying that it will strike down laws as unconstitutional only if they fail to do their discriminatory job efficaciously.

“What’s the use of having a court and having a constitution then?”

So, there seems to be serious contradictions from the views of several parties – the Government, its CEDAW submissions to the UN, and the judgment of the Court of Appeal.

Can Article 12 be interpreted to guarantee the equality of all persons before the law regardless of gender, sexual orientation and gender identity?

Some clarification from the relevant authorities would certainly be of great help.