In a letter published on the TODAY newspaper on 17 November, Ms Goh Li Sian echoed an article on The Online Citizen (TOC) on 15 November – that the recent decision by the Court of Appeal (CA) on the constitutionality of anti-gay sex law, section 377a, contradicts the government’s position on the issue.
In its decision a week ago, the CA ruled that section 377a of the Penal Code was constitutional, and that the law did not specifically provide for protection from discrimination on any other grounds – including sexual orientation – besides those mentioned in Article 12 (2) of the Constitution, namely on religion, race, descent or place of birth.
The article on TOC by Ariffin Sha pointed out that this judgement ran against what the government itself had said to the United Nations last year, at the meeting of the Committee on the Elimination of Discrimination against Women (CEDAW).
The government’s submission reiterated, in fact, that:
“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.”
“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,” Mr Sha said.
“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.”
In her letter to TODAY, Ms Goh, who is the Research and Advocacy Coordinator at AWARE, and writing on the organisation's behalf, also raised the issue.
“The Government maintained that this protection was present even though Article 12 of the Constitution, which gives a guarantee of equality, makes no explicit reference to these grounds,” she wrote.
Ms Goh then said the government’s position and the court’s decision brings into question the former’s compliance with its legal obligations.
She also called on the government to “explicitly amend Article 12” to reflect its (government’s) position on section 377a – that it in fact does grant protection to the lesbian, gay, bi-sexual and transgender (LGBT) community, as it claims in its submission to the United Nations.
The judgment by the Court of Appeal contradicts the Government’s position and makes clear that the Constitution, in its present form, forbids the state from engaging in discrimination only in relation to the specific grounds listed explicitly in Article 12(2) — that is, “religion, race, descent or place of birth”.
The Court emphasises that additional grounds can only be added by Parliament, not by statutory construction through the Courts. As such, it is a definitive statement that Article 12(2) does not currently prevent state discrimination on the grounds of sex or gender.
This invalidates the Government’s previous reliance on the Constitution in responding to the CEDAW Committee and raises serious doubt as to whether the state is in compliance with its legal obligations.
In order to maintain our standing as a nation that honours its international commitments, we call upon Parliament to explicitly amend Article 12 in order to afford equal protection before the law, regardless of gender, sexual orientation and gender identity.