Andrew Loh posted a ‘scratch head’ article recently about the contradiction between what then-Minister of State Halimah Yaacob said in 2011 at a CEDAW conference in New York and the Court of Appeal affirming Section 377A to be constitutional. In A difference of opinion between the gov’t and the Court of Appeal?, he quoted Halimah as telling delegates at that UN conference 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. 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.
But just a month ago, the Court of Appeal ruled differently. It said that the constitution gave no such entitlement to equality. I have analysed its reasoning in a recent article Legal Elmina. In that article, I pointed out that what the Court of Appeal essentially did was to deny any substance to sub-article (1) of Article 12 of the constitution. Article 12 says:
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 effect, the court said it can only be guided by 12(2) in arriving at a decision since 12(1) is merely aspirational. And since 12(2) makes no mention of gender or sexual orientation as disallowed criteria for discrimination, therefore discriminatory laws along gender and sexual orientation lines cannot be struck down.
Andrew’s article focussed on the contradiction between what Halimah so blithely told the UN and what the court said. This contradiction remains to be explained (if that is at all possible beyond it being a heap of muddle, ignorance and insincere attempts at deflection of international criticism).
A letter published 17 November 2014 in Today newspaper 377A ruling contradicts govt position on equality, points out the same tension. Letter writer Goh Li Sian calls on the government to rectify the anomaly by amending Article 12(2) “to afford equal protection before the law, regardless of gender, sexual orientation and gender identity.”
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What I am reminded of, on reading Andrew’s article and this letter is that the court’s dismissal of Article 12(1) is still not addressed. I suspect it is because no one in this circus that is the Singapore establishment seems to understand the meaning of “equal protection”. It is fundamental. Article 12 itself has those two words in its header. If one does not understand what “equal protection” means, then one will not be able to fathom meaning from the constitution. No surprise if these dour grandees of the Singapore state look like clowns.
But it’s not a problem confined to grandees. Singaporeans in general have been depoliticised and stayed uninquisitive for so long that we too find it hard to understand what “equal protection” means. Perhaps decades of authoritarian rule have left a legacy of stunted knowledge: we may simply conceive of law as mechanisms for control. This conception is wrong. Control is the secondary purpose of law. The primary purpose of law is protection. Its moral goal is justice and equity. Fairness. However, in order to achieve justice and equity, it needs to control the actions of some people (“group A”) doing certain things which may cause injury to the interests of others (“group B” — which could be everybody, including A). In so doing, it offers protection to B from harm — i.e. law’s primary purpose.
Thus we have laws that control speeding on roads, selling unapproved ‘medicines’, forgery, or having sex with minors too young to give informed consent.
This hierarchy of purpose — protection as purpose, control as means to an end — must be kept in mind. It is what gives legitimacy to law. But once we are alive to this hierarchy of purpose we can easily see that measures of control are only lawful if they can be shown to advance the cause of protection (justice, equity, freedom from harm, etc). Control for the sake of control, for the sake of furthering one group’s interests — and along the way causing hurt to others — cannot be lawful. When we add the word “equal” to “protection”, it becomes even clearer. The law must not only protect, but protect in equal measure.
In more formal language, the Legal Information Institute of Cornell University (source) explains,
Generally, the question of whether the equal protection clause has been violated arises when a state grants a particular class of individuals the right to engage in an activity yet denies other individuals the same right.
The Supreme Court, however, has applied more stringent analysis in certain cases. It will “strictly scrutinize” a distinction when it embodies a “suspect classification.” In order for a classification to be subject to strict scrutiny, it must be shown that the state law or its administration is meant to discriminate. Usually, if a purpose to discriminate is found the classification will be strictly scrutinized if it is based on race, national origin, or, in some situations, non U.S. citizenship (the suspect classes). In order for a classification to be found permissible under this test it must be proven, by the state, that there is a compelling interest to the law and that the classification is necessary to further that interest. The Court will also apply a strict scrutiny test if the classification interferes with fundamental rights such as first amendment rights, the right to privacy, or the right to travel.
The above makes another important point: a court cannot do its job properly unless it discharges its duty to scrutinise legislation for intent. Which only makes sense, for how else does one decide whether the control that any piece of legislation authorises is justifiable (lawful) unless it first weighs whether there is a compelling need to protect people against something. Remember: liberty has moral value. Control is a subtraction from that value, and it had better be justified through a clear demonstration of need.
In contrast, our Court of Appeal (in its 377A decision) declared that it had no authority to scrutinise legislation for compelling state interest. It abandoned its job. How astounding is that!
To summarise: Our knickers are in a twist because too many Singaporeans have lost sight of the hierarchy of purpose. We think that law’s primary purpose is to govern, when it is supposed to protect us from abuse by others, especially the powerful. We only see law as measures of control. We confuse legitimacy with mere punctiliousness of parliamentary process. We’ve now degraded ourselves to the point where even our courts are confused.
If it were so that law is constitutional and legitimate as long as parliament has voted according to proper procedure, then if tomorrow, Parliament passes legislation that exempts all its members, their spouses and children from paying income tax for the rest of their lives, we would have no intellectual tools to declare such legislation unlawful. And it is precisely because we’ve mislaid these intellectual tools that the Court of Appeal was unable to find any operational guidance from Article 12(1). It could only declare it “aspirational”, since it had no clue how to translate it into law.
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I have no doubt that some practising lawyers too might disagree with me, casting my views as way too broad and ahistorical. That’s not how law works in Singapore, they will say. In a parliamentary system, courts must bow to the sovereign parliament.
That’s exactly what’s wrong with Singapore, and why sometimes, lawyers are part of the problem.
Firstly, we tend to confuse “how it’s been done” with how things ought to be. In the process, we ignore the fact that any “how it’s been done” argument is often confected with a bias towards current practice, taking little account of accumulated deviations and corruptions over the centuries that have departed from commonsensical beginnings. A compendium of habits is no defence against a summons to moral purpose.
Secondly, such an argument can also be seen as an attempt by insiders to close the window to scrutiny by outsiders. It’s not different from the way the ruling party used to cut off anyone offering political criticism by telling him or her to go contest an election. Politics is for politicians, they imply; ordinary people have no right to form opinions on how political decisions are made.
And law is for lawyers? In the same vein, I have no patience with anyone who says “but that’s how law works, ” or “that’s not how law works”. That’s too self-referential, forgetting that I am interested in how law ought to work. I am asking: What are the intellectual foundations for good law? Why and where do we fall short? How does our stunted, in-grown system answer in the court of public opinion to a higher moral calling?