In our circus, few understand what ‘equal protection of the law’ means

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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:

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 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.”

* * * * *

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.

Article 12(1)’s two limbs

Look carefully at Article 12(1). It says: “All persons are equal before the law and entitled to the equal protection of the law”. Why does it have two limbs?

I’d argue that the only sensible way to parse it, is to understand that “equal before the law” has a different meaning from “equal protection of the law”. The first says that all persons are equally subject to the law, i.e. the control measures. The second says all persons shall equally enjoy protection from control measures unlawfully attempted by others.

This reinforces my point: the moral purpose of law is protection.

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.

and

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.

* * * * *

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?

13 Responses to “In our circus, few understand what ‘equal protection of the law’ means”


  1. 1 patriot 19 November 2014 at 17:27

    Reading This Article makes me recalls comments I made at Thrasymachus Blogspot years back about some facts about historical Singapore.

    It is not my comments there that matters, it is the almost ancient expostulations by Thrasymachus and Socrates that got me linking that to This Article.

    In Plato’s Republic, there was attempt by Thrasymachus and Socrates to seek Ultimate Justice.
    Law was mooted but JUSTICE to justify the Law was elusive or rather, hard to define objectively.
    Thousand years later today, it remains as elusive. Laws are made by those in power, meaning Law can be written by those in power at will. It is so, more or less throughout history.

    Sin, a country with Rule Of Law, is now perceived and said to be Rule By Law by most of its’ inhabitants.
    Why is it so? Your Article here does show that there is reason to the Perception.

    patriot

  2. 2 Hon Ling 19 November 2014 at 21:19

    LKY is a lawyer. He make the law work for him and that’s why it doesn’t work for us. You want the law to work for you, vote out the PAP first.

  3. 3 yuen 19 November 2014 at 22:35

    if “equality” means the same law applies to everyone, then it is true whether you are homosexual or heterosexual, you are subject to the same penalty for performing the same act; the higher probability for certain types of people to perform a particular act is not really relevant to the equal applicability issue

    taking an extreme example, one can argue that maternity leave is equally entitled to everyone; it is just that men do not get pregnant so never enjoy the benefit; arguing whether “equal entitlement” is logically faulty or just pragmatically so would be a waste of time

  4. 4 Squirrel 20 November 2014 at 02:28

    The day PAP declared Potong Pasir and Hougang estates will not be upgraded if they voted otherwise, set the beginning stage of mocking our courts and its meaning of “equal protection”. The rest became history and the ruling party became even more encouraged to behave above the law, using the same tactic to threaten voters (taxpayers) in every election.

    As if the above is not aggressive enough, we need to recall this incident –
    Read here
    http://www.theonlinecitizen.com/2014/02/inside-outside-upside-down/

    If the courts is to set rediculous precedent as such, how can they guarantee justice and equal protection for the people? What will the AG say if a group of other political party stand inside the polling station, will they be charged? May be, we should test it out by having a group of opposition member standing inside the polling station to tease those clowns in the circus?

  5. 5 Tan Tai Wei 20 November 2014 at 13:20

    There might have been a basic confusion in the judgment that the Court has no jurisdiction over legislation by Parliament.

    Now, this judgment is right only regarding the less basic issue how best fundamental goods and truths, which all of us, including Courts and Parliament, agree to pursue, may be realized in practice as governed by law and constitution. So, given that we all do or should uphold and practise Justice and Equality, Parliament is indeed supreme on deciding, say, how best to prioritise by legislation the practice of the values in the actual circumstances of our way of life, where they might clash, say with other values and goods like Liberty or survival. That is part of governance, for which it has been given the mandate to execute (of course, after due scrutiny and listening, say to public criticism, etc.)

    But where the issue concerns whether those fundamental values and needs themselves are being upheld or flouted, Parliament is longer supreme. MPs are elected into Parliament, not to do as they please, but to govern for the people’s good, including basically their moral good. That is why it was so silly of LKY, many years ago, to answer a moral argument against legalizing abortion by just saying “Take me on at the next election”. Elections don’t settle moral issues, for MPs are elected on the presupposition that they would promote the people’s good.

  6. 6 Tan Tai Wei 20 November 2014 at 15:08

    By the distinction I tried to bring out above, how would the Apex Court decide? Well, it might try to see if the Clause or Article at issue could be credibly defensible as Parliament’s attempting to resolve a moral dilemma, say between respecting human rights to justice and equality and some pragmatic, prudential acceding to tradition deemed to be so crucial for survival, etc. If the issue were indeed seeable in that light, and better still, if actual Parliamentary debates were quotable to support such a conclusion, then Parliament should be granted supremacy, after all opinions had been duly studied. However, if such a defence of the Article or Clause weren’t judged to be available after due considering by the courts, even if Parliament were to claim its availability, then the case should be classified as one about whether fundamental values and the people’s good are being flouted. And then, since Parliament cannot be left to remain supreme about it here, we should suppose a “supreme court” of the people should undertake the supremacy. If not, who?

  7. 7 Hawking Eye 21 November 2014 at 00:21

    It is not that the judges do not have the intellectual tools. They should, of all people, have them more as a group, than any others. And yet in some select cases they seem to flounder to the disappointment of ordinary people by failing to utilise the right tool to arrive at a just and morally acceptable judgment. But law is a legal issue and not a moral one. It is on this premise, that most of the high-flier lawyers and surgeons are hard-wired to detach themselves emotionally. They don’t want to hear sad stories and sob stories. Their message is clear: If you can’t afford it don’t come to me.

    It is true that our judges are legally and intellectually bright. Hence they can use suitable tools to justify and rationalise their judgments. In another word there are loopholes and gaps in law which they can exploit and interpret to arrive at an outcome they want. That the law is an ass is said not without reasons by the clever.

    In the above case the judges seem to suggest unequivocally that equal rights as enshrined the constitution does not allow discrimination against Singaporeans on the ground only of religion, race, descent or place of birth in any law. Since it does not explicitly include those with different sexual orientation and gender identity, the latter group can be discriminated against. They just go by the book. They may be technically right.

  8. 8 Hawking Eye 21 November 2014 at 12:02

    Few years back the then Attorney General (AG) conveyed his opinion to the Law Minister along this line of legal reasoning. Any person, other than a legitimate voter or a registered agent of the contesting candidate, found within the limit of 200(?) meters from the voting centre commits an offence under the Election Laws. Since the VVIPs (a DPM and accompanying Minister/s)were inside the voting centre and not along the 200 meter restricted pathway they had not committed any offence. By the way, how did they get in without breaching the 200 meter restriction – by helicopter-drop into the school’s (voting centre) compound? In common sense context, some may regard this as nothing short of blasphemy. But the AG interprets the law strictly according to what the Statues say. He may well be right absolutely. That he was elevated as a judge later and made the Chief Justice eventually may just be a coincidence as he is considered well qualified and highly regarded internationally.

    In presidential systems like in the US and countless number of countries where military regimes take control of power (two extremes funnily) the Chief Justice and the Intelligence Chief are usually replaced with men of their own choice. The reason for this must be obvious.

  9. 9 Nick lim 21 November 2014 at 16:04

    Brilliant article. A pleasure to read.

  10. 10 Kai 21 November 2014 at 17:32

    I have been following your blog for a few years now, and I think you have reached a peak in your writing and analysis in both this present article on “equal protection of the law” and the precious one, “Legal Elmina”. Not being from a legal background, I have been enlightened and have gained much new understanding from fresh perspectives in reading these two articles, and I feel I have little to add in substance to them.

    A minor point: The first article you quote here has been posted by Andrew Loh on TOC but is written by author Ariffin Sha. This was also referenced by Andrew Loh in regard to Goh Li Sian’s letter on TODAY in his own article here:

    http://www.theonlinecitizen.com/2014/11/serious-doubts-about-govts-compliance-with-legal-obligations/

    In the quoted Ariffin Sha’s article, you will find toward the end a reference to Indranee Rajah’s speech in parliament (2007) of what Article 12(1) of the Constitution meant to her. You can clearly see in her ‘explanation’ that she only zeroed in on the “equal before the law” limb but completely (and conveniently) skirted the “equal PROTECTION of the law” limb.

    As you explain in “Legal Elmina”, the crux of the interpretation of Article 12(2) of the Constitution hinges on the meaning of the word “only”. An intelligent, educated person will likely reasonably interpret the word “only” in this context to mean “merely” and that it does NOT connote an exclusive list of criteria barring discrimination. This means that it is indeed lawful to discriminate on the basis of “religion, race, descent or place of birth” so long as they are not the “only” criteria being applied and there are other legitimate and compelling reasons for the discrimination. You have given many examples in “Legal Elmina” of when religious or racial discrimination is sensible — and lawful — and is indeed called for by legitimate considerations that compel such discrimination.

    If the criteria listed in Article 12(2) were meant to be exclusive, then laws that discriminate against women would be perfectly constitutional as long as they are written intelligibly (“intelligible differentia”) and target their victims of discrimination accurately and precisely (“rational relationship”), since “sex” or “gender” is not explicitly stated as is “sexual orientation”. In addition to your example of,

    1. A law that bans all females from entering university; there are many others such as,

    2. No woman shall be a lawyer (which would discriminate against Indranee Rajah herself and would be held constitutional if challenged in court by Ms Rajah); women are banned from being a Member of Parliament and from politics; and all manner of similar absurdities would follow.

    Following calls for the parliament to amend the Constitution to explicitly include gender and sexual orientation for equal protection by letter writers on TODAY such as Goh Li Sian [1] and Sam Ho Chi [2], I’ve seen a conservative claim that sexual orientation (unlike race) is conceptually “subjective and unclear”. Although gender identity is to some extent subjective and based on self-perception, sexual orientation definitely is NOT subjective because it is a trait that can be externally and independently observed just as a person’s sex and race characteristics, and is indeed empirically verifiable. For males, there is a scientific test (phallometry) that uses a penile plethysmograph attached to a man’s private part to measure his sexual response to sexual images that can distinguish gay (and bisexual) men from straight men, giving results that are testable, measurable and repeatable. [3] Most sensible people, however, do not need to resort to such drastic measures for confirmation, even if available. External behavioral patterns like being physically, emotionally and sexually attracted to the same gender and expressions of falling in love with someone of the same sex can be observed objectively to correlate to one’s innate sexual orientation. This is in fact analogous to how a clinically-trained psychiatrist arrives at a statistically reliable diagnosis using a diagnostic manual like the standard DSM-V. A difference between one’s sex (or race) and one’s sexual orientation (heterosexual, bisexual or homosexual) is that sex (or race) is relatively apparent upon birth while a person’s sexual orientation only manifests itself after they have achieved sexual awareness. For example, I was definitely aware in kindergarten that I was gay when I fell for a boy in my class who wore long socks, even lacking the vocabulary to describe it. I distinctly remember it because I was scolded by my mom for being “girly” when I asked my mom to buy me long socks to wear too, presumably because “boys don’t wear long socks”. Far from being “unclear”, both sex and sexual orientation are definite intrinsic aspects of a person’s core identity worthy of constitutional lawful protection, a scientific position supported by virtually all mainstream medical, psychiatric, and psychological institutions. (References are plenty but redundant here, because if you don’t know this, then you’re not really living in the 21st century.)

    Notes:

    [1] http://www.todayonline.com/voices/s377a-ruling-contradicts-govt-position-equality

    [2] http://www.todayonline.com/voices/include-gender-identity-sexual-orientation-constitution

    [3] http://en.wikipedia.org/wiki/Penile_plethysmograph#Male_homosexuality

  11. 11 Junnies Jun Yang 22 November 2014 at 09:17

    i’ve never been convinced that the law is a force of justice, morality or protection. it is instead, simply another instrument to protect the wealthy (lawful order is essential for the wealthy to protect their capital and assets)

    the fact that the rich and powerful have an overwhelming advantage in the court of law in possibly every legal system in the world (more resources and money to buy up the best lawyers, influence politicians to pass favorable laws, bribe judges when possible etc), the fact that lawyers are literally, legally, unabashedly for-profit, means that the law was fundamentally never for/about noble ideals of truth, fairness, or justice.

    of course, it is necessary that the law maintains the illusion of truth/fairness/justice, (otherwise, the masses are far more likely to revolt and reject the system)and thus a minimum amount of protections(basic rights, ‘equality’ under the law) are extended to the masses.

    in Singapore, this is simply much more transparent and obvious. the government and our courts don’t even bother to pretend that the law is for truth/fairness/justice. I would of course be delighted to see the law one day to truly be tuned towards a higher moral calling but the reality is that the law is what those in power want it to be.

  12. 12 Ong Yuan 22 November 2014 at 12:51

    With regards to the last part about “how the law ought to work”, one must understand that our legal system is inherently flawed (as all legal systems are) and we do the best that we can in administering justice.

    While I sympathise with your views as to what the law “ought to be”, often there is the competing factor of practicality that we must weigh in. Removing these “compendium of habits” is far easier said than done. We must contend with having imperfect knowledge and human fallibility in the administration of justice. The common law’s “deviations and corruptions” are actually improvements and tweaks to an inherently imperfect system. It may seem to have departed from “commonsensical beginnings”, but they have done so because there are necessary complexities and complications that arise from the matter. It is never a straightforward matter. I assure you that if we were to start all over, tabula rasa, we would still encounter such problems. This matter has been explored in countless jurisprudential texts. Thus when your lawyer friends seem somewhat apathetic or even jaded on this, it is because they grasp the repercussions that this would have on the entire legal framework.

    The issue of having the judiciary scrutinise the legality of law is also not as straightforward, for they do not have the democratic mandate that Parliament has in making and passing laws. Parliament, as the vestee of the people’s mandate (again, imperfect as it may be) are, arguably, the only legitimate body in passing laws. The role of the courts is merely to interpret the law, a role that even the more liberal British courts have not deigned to do, save for HRA instances (which is again, due to the complex issue of the ECHR).

    At the end of the day, lawyers understand that we must play by the rules, lest we risk an “anything goes” situation. We need substantive justice, yes, but also a “compendium of habits” to establish a stable framework that inspires trust and confidence from which justice can be meted out.

  13. 13 Siauw Chong 23 November 2014 at 11:01

    brilliant n succinct. Well done. courts must protect the oppressed not govern or defend the Constitutional status quo.


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