Legal Elmina

The judgement by the Court of Appeal, affirming the constitutional validity of Section 377A of the Penal Code, is a landmark… in the way that Elmina Castle in Ghana is a landmark. Section 377A is the law that criminalises sex between men and is the fount for a cascade of discriminatory policies against LGBT persons in Singapore. The judgement was released on 30 October 2014 and has since received very dim reviews from many observers, organisations and publications abroad, including the United Nations’ Office of the High Commissioner for Human Rights.

Elmina Castle was a major slave buying and transshipment point for hundreds of years. From here, millions of Africans were transported to the United States, Cuba, Jamaica, Brazil and the region. It has recently been restored to remind future generations of the state-sanctioned abuses that people once thought perfectly ordinary.

The effect of the court’s decision over 377A gets more shocking the more closely one reads it. Shocking, because it will have sweeping reverberations. Effectively, the court has said that Article 12(1) — the constitutional guarantee of equality — has no practical value.

Going by the logic in the 101-page judgement, I can clearly see how it will be entirely possible for future courts, relying on this precedent, to find the following hypothetical laws entirely constitutional:

1. A law that bans all females from entering university;

2. A law that says any voter with annual income under $100,000 a year must pay a fee of $2,000 before being allowed to enter a polling station;

3. A law that says no physically disabled person (e.g. someone in a wheelchair) may own property.

Section 377A 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.

Below, I will quote some very chilling passages from the judgement to show you how this court decision has opened the floodgates to the above. But first, I wish to explain, to the best of my (non-lawyer) understanding, the logical structure that the court applied, and how it differs from sound reasoning.

The court said — and this is not in great dispute — that laws alleged to be discriminatory (which these conjoined cases, one by Tan Eng Hong, the other by Kenneth Chee and Gary Lim, claimed 377A to be) should be tested for “reasonable classification”. The problem with the entire judgement is the manner in which the court shrank and mummified the “reasonable classification test” till it was lifeless and dessicated.

Two or  three limbs?

The court said this test had two limbs. In paragraph 57, it said,

Strictly speaking, however, the “reasonable classification” test, in our view, comprises only two closely-related stages.

I disagree, and I think many, legal experts would disagree too. There should be three limbs. The ejection of the first limb effectively decided this case. This was evident by the sixth paragraph of the 101-page written decision.

In my view, and going by how (as I understand them) courts in other common law and Commonwealth jurisdictions have decided discrimination cases, the first of the three limbs would be to inquire whether the aim of a law was a legitimate one. In the United States, the test often applied is whether there was any compelling state interest in enacting such a law. I have not seen Canadian courts (a Commonwealth country) use the same term, but they do apply a similar kind of inquiry.

Perhaps readers may want some elaboration of what “compelling state interest” means. Let’s say a law is passed requiring quarantine for people with highly infectious diseases, but someone challenges it as contrary to a constitutional guarantee of freedom of movement. The court may say that the public health interest — a responsibility of the state to safeguard — is compelling. But if a law is passed that requires all citizens to take off their shoes before entering their homes, it is not compelling. What business is it of the state to regulate the footwear people use in their own homes?

This first limb is therefore an inquiry into the purpose of a law, and whether it represents a legitimate exercise of state power. Or whether it is arbitrary, capricious, ill-founded or needlessly intrusive.

It is nothing short of the very reason we have law, and the very dictum that even governments are subject to law. If the highest law court does not examine the lawfulness of legislation with respect to legitimate exercise of state power, how does it guard against abuse of power? What is going to stand between the people and a dictator who sets out to circumscribe human rights and dismantle democracy? Or for that matter, one who sets out to neuter the courts? Courts must not abandon the first limb.

The second and third limbs represent inquiry into the execution of the law. The second limb is an inquiry into whether as written it is intelligible. Is the language confusing? Are we able to discern from the text exactly which persons or which acts the law applies to? The term you will come across in the judgement is “intelligible differentia”. But as you can probably guess, this is actually a low bar. It would probably take embarrassingly garbled text to fail this test.

“Less repugnant” Counsels for appellants argued that 377A’s differentia were under-inclusive (and therefore should fail the “rational relationship” test) because the law only targetted homosexual activity by males. Female homosexuality is legal. The court did not accept this argument. It said in paragraph 21 that “The non-inclusion of female homosexual conduct did not render s 377A under-inclusive because such conduct was either less prevalent or perceived to be less repugnant than male homosexual conduct.” This effectively condoned repugnance as sufficient ground for targetting any group of people without the need to examine the reasonableness of it. Nor did it carefully weigh claims of fact (“less prevalent”) which one would expect every respectable court to do.

The third limb is an inquiry into whether the differentia that the law applies fit the purported purpose of the law. Lawyers will argue about whether a law is “under-inclusive” or “over-inclusive”, and these arguments sometimes go back to the question of whether the law is arbitrary or capricious (first limb). For example, if there’s a law purported to safeguard public health, but the law requires inspection of only Indian and Middle-Eastern restaurants, such a law is likely to fail the third limb due to under-inclusiveness. Why exempt Malay, Chinese or Western restaurants? plenty of people will ask. Or if a law providing for quarantine of persons with highly infectious diseases also says that anyone who has ever had such a highly infectious disease (even if fully recovered) must stay in quarantine for years and years, then it can be argued that it is over-inclusive.

I have arranged the first to third limbs in the above order for a logical reason. If a law fails the first limb, in that no legitimate purpose can be shown, there is no need for a court to move on to the weigh it for the second and third limb. If it passes the first, but fails the second limb (i.e. found to be unintelligible)  then the question of ‘fit for purpose’ (third limb) cannot undergo examination.

Court threw first limb overboard

In this 377A case, the Court of Appeal said it would not enquire into whether the law was a legitimate exercise of state power. It skipped the first limb, insisting that the “reasonable classification test” only comprised two (i.e. my second and third) limbs. It quoted the Attorney-general’s Office in approving tones in paragraph 35:

Art 12(1) did not contemplate judicial scrutiny of the legislative purpose of an impugned statute.

Then, having shrunk “reasonable classification”, explained the throwing overboard of the first limb in paragraph 82:

To permit the court the power – over and above its power of scrutinising legislation pursuant to the “reasonable classification” test – to declare a statute inconsistent with Art 12(1)… because the object of that statute is illegitimate would precisely be to confer on the court a licence to usurp the legislative function in the course of becoming (or at least acting like) a “mini-legislature”.

You will have noticed therefore that the court is giving parliament carte-blanche to pass all manner of discriminatory laws. We are in no position, it said, to question why the legislature would want such laws, so long as execution-wise, their language makes them operational.

The court kept repeating itself. In paragraph 153, it said that with respect to 377A,

we hold… that there is, in fact, a complete coincidence in the relation between that differentia and that purpose and object.

and in 154:

there is no separate or independent test of illegitimacy (vis-à-vis the object of the impugned statute) for the purposes of ascertaining the constitutionality of that statute under Art 12. There is therefore no need for us to consider the issue of illegitimacy…

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?

‘Extra-legal arguments’ dismissed

Some may ask where in the term “reasonable classification” does it imply that courts have the power to examine for legitimacy? It’s right there: in the word “reasonable”. Did parliament act in a reasonable way when it passed such and such a law? Or was parliament seized of misinformation, alarmist fears, unfounded prejudice or fanciful forebodings of imaginary debauchery when it acted as it did?

To address these questions, counsel for the appellants raised issues such as immutability, absence of harm to society generally, tyranny of the majority, and the thorny issue of trying to legislate private morality. But the court dismissed all these as “extra-legal considerations”, which (in paragraph 155) were:

clearly neither relevant nor material in so far as the application of the “reasonable classification” test is concerned.

By this measure then, parliament can do whatever it likes, however misguided or partial to sectional interests (e.g. the rich). Even if laws appear to violate something fundamental (e.g. equal right to vote or right to own property), raising evidence of parliament’s unreasonableness before the courts would be dismissed as “extra-legal considerations”.

For good measure…

As if locking the doors were not good enough, the court bricked up the entire doorway. In paragraph 102(b), it characterised Article 12(1) as “declaratory and aspirational in nature” in effect saying that no reference should be made to it in enforcement of rights. In paragraph 90, the judges said they took this view because Article 12(1)

does not furnish the specific legal criteria which can guide the courts in determining, in specific fact situations…

It’s quite amazing, really.  Surely apex courts have the competence to set out specific legal criteria for all sorts of situations; that’s what apex courts are for. It then went on to whimper that the only constitutional protections available (with respect to equality) were found in Article 12(2). In paragraph 102(d) of the written judgement, it said,

Article 12(2) prohibits specific grounds of discrimination, which are the only grounds of discrimination that are proscribed under the Singapore Constitution.

I totally disagree with this reading of the constitution.

Let me cite Articles 12(1) and 12(2) for your scrutiny:

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.

If Article 12(1) serves no meaningful purpose, why is it even there? 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.

Record depths The quality of the judgement plumbed record depths when it dismissed consideration of the risk of tyranny of the majority. The judges wrote “Indeed, the majority could turn the argument just mentioned on its head and contend that likewise, they ought not to be subject to the ‘tyranny of the minority’.” This is reinforced a little further on when they characterised counsels’ arguments as “claiming that their rights [LGBT’s rights to equality] should trump those of the majority.” First of all, this is completely unbecoming of a court sitting in consideration of a constitutional challenge over discriminatory legislation. The whole point of having courts review legislation is to guard against abuse of power and any intelligent enquiry should start with the reality that an electoral majority, ipso facto, has power. To try to draw equivalence through rhetorical flourish, and then fling counsels’ arguments out of the window is to take leave of reality. Secondly, what rights of the majority are being trumped by extending equality to gay persons? The only thing taken away from the majority is the freedom to stigmatise and oppress — is this supposed to be a constitutionally protected right? Thirdly, we’ve all heard these before, haven’t we? These so-called counter-arguments originally emanated from the fundamentalist-Christian Religious Right of the United States.

If Article 12(2)’s race, religion, descent or place of birth were the only forms of discrimination prohibited by the constitution and for that reason could stand alone, Article 12(1) shouldn’t be there at all. When this Court of Appeal said that it could not act as a mini-legislature, this was precisely what it did when it swept away Article 12(1).

The difficulty may lie in the word “only” in Article 12(2), shown in italics above. The court in effect said that the presence of this word reduces the areas of equality and non-discrimination to precisely those areas enumerated there (“religion, race, descent or place of birth”) and no other. But as I mentioned, if that’s what the constitution intends, why have Article 12(1)?

A more commonsensical reading, and certainly more fitting with how most intelligent people would think constitutions are structured, is that the word “only” operates to clarify situations where the race (or religion, etc) of a person may be a consideration, but there exist other legitimate reasons as well.

Let me give you some examples:

Say the police are seeking someone to act as their liaison officer to build communication channels with Chinese triad gangs — sometimes it is more effective for law and order to have these channels rather than have no means to communicate — and in selecting the person for this job (“employment under a public authority”) there is a strong bias towards hiring someone who is also Chinese and can speak the language, and who is credibly acceptable to the gangs as an interlocutor. The police could be accused of hiring by race, but in their defence, they do have another legitimate reason: that of efficacy. They are not hiring only on the ground of race.

Or say we have a practice where we always reserve one seat in the Presidential Council for Minority Rights for a Muslim person. On the face of it, reserving any “appointment to any office” to members of a particular religion might be unconstitutional because it then deprives others of a chance to fill that seat. But most of us would grasp that there is a legitimate and compelling state interest (i.e. legitimate purpose) in having a Council that is representative. In this case then, a Muslim member is appointed not only because we want a Muslim, but also because we want representativeness. So, the religion ground is not the only ground for his appointment. There is the desire for representativeness as another ground.

Contrast this with, hypothetically, a policy where the Speaker of Parliament or chief of police must always be Muslim (or Chinese). If one cannot demonstrate any other legitimate purpose for such a policy, then religion (or race) would be found to be the only ground in the appointment to the office, and Article 12(2) clearly says this won’t do.

Unfortunately, the court took a very different reading of the word “only”. It then went on to say that since neither the word “gender” nor “sexual orientation” appear in Article 12(2), government and legislature are free to discriminate along these lines. Read together with all the foregoing, it is immaterial if such discriminatory legislation is motivated by animus; it is not the business of the courts to examine acts of parliament for illegitimacy.