(Shruti Choudhary is a Fourth year student at Dr. Ram Manohar Lohiya National Law University, Lucknow)
Featured Illustration – “The Happy Couple” by Pietro Longhi
After becoming an independent sovereign state in 1965, Singapore adopted the British Westminster Parliamentary System of Government. However, it took an unconventional move and instead of following the British model of legislative authority, Singapore adopted a written Constitution and implemented the concept of judicial supremacy, acknowledging the Constitution as the supreme law of the nation. The above-mentioned concept confers upon the judiciary the right to revoke legislative enactments which are legally infirm.
Nevertheless, a careful examination of the jurisprudential development of Singapore’s constitutional law shows that the doctrine of constitutional supremacy enshrined in Article 4 of the Constitution of the Republic of Singapore (‘Constitution’) is evanescing. The primary reason behind this unhealthy evolution is the judiciary’s reluctance to subject the majority’s will to constitutional scrutiny.
Where, on one hand, the constitutional courts around the world welcomed a transition from the traditional form of judicial review to the modern form of judicial review, on the other hand, the judiciary in Singapore has not yet moved past the traditional form of judicial review leading to various cases of violations of human rights in the country.
This blog analyses the pitfalls of the approach taken by the Singapore Courts in the light of the recent judgment given by the High Court of the Republic of Singapore in the case of Ong Ming Johnson & Choong Chee Hong v. Attorney General. In this case, the Court dismissed three petitions questioning the constitutional validity of Section 377A of the Penal Code, 1938, which criminalized either public or private “gross indecency acts” between “males.” Since Section 377A had already been challenged before the Court of Appeal in Lim Meng Suang & Anr v. Attorney General & Anr., the High Court in the present case noted that it would be bound by the principle of stare decisis, except for the newly raised arguments. Even as Section 377, which criminalized “carnal intercourse against the order of nature” between any “man,” “woman” or “animal” was repealed in 2007, Section 377A retention continues to torment homosexuals residing in Singapore and even the global community as a whole.
This blog consists of three sections, providing critical review of the High Court’s judgment regarding the right to freedom of speech and expression, the right to equality and the right to life and personal liberty, respectively. The blog provides a conclusion by proposing three legal standards, namely the test of proportionality, the test of direct and imminent effect, and the common reading of fundamental freedoms enshrined in Section IV, to be followed by the Singapore Courts in order to ensure constitutional supremacy.
Right to Freedom of Expression
The Court relied on the Tan Cheng Bock system for deciding the meaning of the word “expression” pursuant to Article 14 of the Constitution, taking into account the language, context and the purpose of the Article. Highlighting that the term “expression” has different meanings depending on the context in which it is used, the Court relied on the Marginal Note to Article 14 (“Marginal Note”) as an interpretative aid. The language of this note is “freedom of speech, assembly and association.” The Court reasoned that there is no independent right to freedom of expression due to the absence of the term ‘expression’ in the Marginal Note, that is, expression can only be viewed as something “related to or falling within” the right to freedom of speech. Based on the ejusdem generis principle, the Court held that such equality would not extend beyond the “verbal communication” of the opinion/idea/belief.
This unreasonable approach of the Court is problematic on different levels. First, it is problematic to deny the independent existence of a right simply by relying on that right on the Marginal Note. If this reasoning is to be extended for the interpretation of Article 9, the Marginal Note of which “the person’s freedom” is mentioned, then there is no room under the Constitution for an individual ‘right of life,’ as the word ‘life’ is contained only under Article 9 sub-clause (1). It would mean that there would be no right to life beyond the right to personal liberty and that the security of Article 9 would be restricted only to laws against wrongful confinement, wrongful restraint, abduction, kidnapping, criminal trespass, slavery and forced labour.
Secondly, Article 14 should be read in the light of the title of Part IV of the Constitution on ‘fundamental freedoms.’ Freedom of expression is a negative liberty and Article 14 should be understood as an enabling clause in view of the concept of Part IV. Even if the word ‘expression’ (or life as in the above-mentioned scenario) has several potential meanings depending on the sense in which it is used, the Court will validate each of those meanings subject to the restrictions ‘explicitly’ referred to in Article 2.
Third, such a restriction makes homosexual people unable to exercise their other freedoms conferred under Part IV. Homosexual activist groups are considered to be “unlawful, harmful to public peace and contrary to national interest.” They are prohibited by the fear of prosecution from establishing alliances to support their cause, expressing their gender by voice, behaviour, mannerism, dress, sexual partner choice, etc. Calling this basic right “surplusage” or “redundant” is a disregard not just for the constitutions of many democracies but also for international law instruments that are widely recognized, such as the Universal Declaration of Human Rights (“UDHR”).
Fourthly, the Court observed that if a wider notion of ‘speech’ is followed in keeping with the judgment of the Supreme Court of India in Navtej Singh Johar v. Union of India (‘Navtej Singh Johar’), then Article 14 will undoubtedly provide constitutional safeguards for sexual offences such as incest, paedophilia, necrophilia and bestiality. Nevertheless, the Court’s reasoning is highly flawed because infants, bodies and animals are constitutionally unable to agree, suggesting that paedophilia, necrophilia and bestiality will not fall into the definition of consenting adults indulging in private sexual activity. There is no scientific data supporting “incestuous sexual orientation” as regards the question of incest. Nevertheless, unlike homosexuality, incest has the likelihood of a deformed child, which may in effect influence society as a whole. Within a certain degree, personal laws or religious customs which have force of law also prohibit sexual relations. Furthermore, the limitation on homosexuals is comparatively much higher as the laws criminalizing incest prohibit sexual intercourse with only ‘few’ persons, while the laws criminalizing sexual intercourse between males prohibit sexual intercourse between ‘every’ member of the gay community.
Right to Equality
By ignoring the fact that Section 377 was “equally” abolished in 2007 for all people, including homosexual people, and by disregarding Section 377A’s Explanatory Note, the courts deviated not just from the basic and golden rule of interpretation, but also from the Interpretation Act, 1999. This interpretation of the Court, which has the effect of reviving Section 377, is clearly at odds with the concept of “quando aliquid prohibetur ex directo, prohibetur et per obliquum” according to which what cannot be done explicitly cannot be done indirectly. Using the mischief rule of interpretation, it can be analysed that Section 377A of the mischief was attempting to correct non-penetrative acts that were not criminalized under Section 377. The same can be deduced from the difference in the maximum possible punishment for these offences. The varying severity in both penetrative and non-penetrative acts inevitably prompted various punishments.
The Court adopted the test of fair and reasonable classification to scrutinize Section 377A on the anvil of Article 12 which guarantees equality before law and equal treatment of law. The Government of Singapore has recognized that, even in the absence of the word “gender” under Article 12(2), there is an intrinsic right to gender equality within the Constitution. Section 377A criminalizes male sexual acts as opposed to female sexual acts, or a man and a female. In order to validate this manifest gender discrimination, the Court relied on two provisions of a similar nature, previously challenged and subsequently ruled constitutional, namely the exclusion of women from canning punishment pursuant to Section 325(1)(a) of the Code of Criminal Procedure, and Section 69(1) of the Women’s Charter, which provides that spousal support can only be claimed by a wife. It is argued that such relevance is incorrect as the instances given can be differentiated from Section 377 on the ground that such clauses guarantee protection whereas Section 377 sanctions a violation. The former protects women from harsh punishment and neglect by their spouses while the later infringes the rights of a community of disadvantaged and minorities. The intention and effect of these provisions is different, and therefore the ratio set for one cannot be applied to the other.
Right to Life and Personal Liberty
The Court has adopted a ‘one-dimensional facet’ of freedom with regard to Article 9 which guarantees the right to life and personal liberty. This form of freedom exists in the constitutional text but is not enforceable in the real world. The above opinion is in response to the Court’s claim that a homosexual person is not being punished for his sexuality, but rather for the ‘things’ he is carrying out in favour of that sexuality which are widely interpreted as gross indecency. Highlighting that it is the ‘act’ that is illegal, the Court noted that even a heterosexual individual who performs such a crime may be punished under Section 377A. The Court’s understanding here is absurd and leads to arbitrary implications as it prejudices a whole community of people. Sexual identity is ‘personal’ to an individual and it falls well within the scope of Article 9 to express such identity through behaviour, sexual actions or life partner choice. The Court ultimately prosecutes homosexual people for their sexuality by penalizing conduct that does not fall into the binary.
The Court referred to different scientific evidence and expert testimony to conclude that a person’s sexual orientation may vary over time and is therefore not “immutable.” This deduction can be disproved from two distinct angles. On one hand, reliance can be placed on the judgment rendered in Navtej Singh Johar to argue that a person’s sexual orientation is innate, ingrained and inherent. On the other hand, it can be argued that with more and more people defining themselves as LGBTQIA+, people across the globe are discovering their own immutable or unchanging selves. Therefore, their sexual orientation does not change, but rather their self-understanding does. The argument is based on the fact that in essence, sexuality is fluid. Even if the Court’s reasoning is accepted, it does not in any way justify that heterosexuality is the only ‘normal’ and just because a person’s orientation can vary, penal measures should force them to resort to heterosexual forms of sexual expression. Such a mindset leads to exposure of homosexuals to instances of police abuse, extortion, harassment, forced sex, hush money payments, etc.
Because of the lack of representation in the so-called democratic structure that purports to heteronormative norms, the LGBT community stands minimal chance against the pretended “morality” of a majority. Ignoring the fact that the rule of law favours individual freedom to the judgment of a majority, the guardian of rights has become an accomplice of the violators. Therefore, the act of the State to compel persons engaging in private, consensual sexual activities to testify against each other or against themselves for the prosecution of Section 377A would be incompatible with the principle of protection against self-incrimination.
The Move Ahead
The Courts of Singapore must deviate from the conventional approach and embrace a more progressive approach to constitutionalism and morality. First, to scrutinize a law on the anvil of Article 12, the courts should adopt the ‘doctrine of proportionality.‘ This doctrine is premised on the principle that it is necessary to maintain a balance between the adverse effects of a law on an individual’s fundamental rights and freedoms, and the purpose or object sought by that law. Application of this theory will ensure that an individual’s basic rights and freedoms would always prevail in matters of disagreement over conceptions of morality propagated by the majority.
Second, the courts will follow the ‘test of direct and inevitable consequence’ for scrutinizing the limits on freedom of speech, expression, assembly and association imposed by legislation in furtherance of Article 14(2). This doctrine indicates the Court must recognize the immediate and foreseeable effect of the State action in order to determine whether a constitutional right is violated. This doctrine urges the Courts to examine, along with its theoretical framework, the practical impact of a law. In the present case, applying this doctrine will lead to a finding contrary to that taken by the Court since, while Section 377A technically only criminalizes sexual ‘acts’ between males, it also criminalizes homosexuals for their ‘identity.’ Analysing Section 377A’s practical consequences will also illustrate the adverse incidents of police brutality, assault, coercion and coerced sex that homosexuals are subjected to on an everyday basis.
Third, Part IV should not be perceived by the courts to consist of independent liberties. Under this Section, the liberties recognized are so fundamental and interlinked that one cannot be exercised without another. To substantiate this line of reasoning, presume that the Parliament passes a law specifying that capital punishment should be extended to all mentally disabled individuals on the grounds that they are a liability to the country. Hypothetically, such a situation may arise because the government is not accountable to such people in a representative manner because they are unable to vote. Such law must stand the test of Article 12 because the class of citizens can be identified intelligently and the penalty forms a nexus with the intent of eliminating liabilities. Furthermore, the deprivation is in compliance with the law and in the interest of the country, making the legislation consistent with Articles 9 and 14, respectively. However, if the limitations imposed pursuant to Article 14(2) or the test of fair classification as enshrined in Article 12 are followed at the same time by the review of the subject-matter of the challenged legislation on the anvil of Article 9, the consequence will be otherwise. Thus, only by a joint reading of Articles 9, 12 and 14 can the purpose and nature of the laws be fully checked on the principles of constitution.
This Singapore High Court decision offers us just a glimpse into how institutionalized patriarchy and racism purport homophobia and misogyny to such a degree that even the nation’s legal minds are not safe from their impact.
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