Success in the Constitutional Challenge to Section 377A Opens the Door to Overturning Other Unjust Laws
On Monday January 25th lawyers for three gay men argued before a five-judge Court of Appeal that the High Court was wrong to dismiss their challenge to the constitutionality of Section 377A. The lawyers, including M. Ravi, argued that Section 377A, which criminalizes an “act of gross indecency” between men, violates Article 12 of the Constitution.
Article 12(1) states:
All persons are equal before the law and entitled to the equal protection of the law.
Criminalizing gay sex between men but not women treats men unequally and is therefore ultra vires the Constitution. The Constitution is supreme and therefore Section 377A should be struck down.
Instead of abolishing 377A, Lee Hsien Loong chose to keep it on the statute books but said in 2007 that his Government would not enforce it. The Chief Justice, Sundaresh Menon, called this a “political compromise” but I see it as typical of the way the PAP Government operates. Most freedoms Singaporeans enjoy are on licence, granted by the gracious permission of either LHL or his dad, and can be taken away from you at any time, no matter whether doing so would violate the Constitution, which, as Paul Theroux said about the Straits Times, is only suitable for use as toilet paper.
Keeping laws that are not enforced is a handy tool for threatening your opponents and intimidating the majority for daring to think they can oppose the Government. It used to be said that LKY had files on all the PAP MPs and Ministers, as well as his opponents, compiled by the ISD or other secretive Government agencies, detailing any skeletons in their cupboard which could be used against them if it ever became necessary. Some say that Devan Nair was removed from office because he knew too much about LKY and how he was thrown into a narcissistic rage by the election of JBJ. The reason given at the time was alcoholism with hints that he had behaved inappropriately with women while on a state visit but these proclivities and alleged alcohol addiction could not have been a surprise to LKY’s Government.
Similarly, Tharman Shanmuguratnam, my old friend from Cambridge where he went on a one year vanity M.Phil course, was convicted of breaching the Official Secrets Act in 1992 and fined, but conveniently just below the threshold that would have barred him from Parliament. However this did not stop PM Goh fielding him as a PAP candidate in 2001 paving the way for his rise to Finance Minister and Deputy PM under LHL. Tharman’s conviction though made him a flawed candidate and thus made him simultaneously beholden to LHL for his elevation and less likely to challenge for the leadership.
Retaining 377A on the statute books, even if it is not enforced, provides handy opportunities for blackmail and a means of controlling PAP MInisters, MPs, civil servants and Government scholars who might be gay.
Section 377A clearly violates Article 12 of the Constitution but I suspect the Court of Appeal will bend over backwards to avoid finding that it is. If 377A is unconstitutional then so is NS since men and women are not treated equally. This was the basis of the late US Supreme Court Justice’s, Ruth Bader Ginsburg, historic victory in the case of Moritz v Commissioner, documented in the movie “On the Basis of Sex”. In the US case the argument was based on the Fourteenth Amendment which states that “no state shall…deny to any person within its jurisdiction the equal protection of the law.” Article 12 of the Singapore Constitution, like the rest of Part IV, is based on the United Nations’ Universal Declaration of Human RIghts which in turn is based on the Bill of Rights in the US Constitution. If, as the PAP Government has decided, serving NS is considered an essential requirement for citizenship, then it should be extended to women so that the sexes are treated equally. PRs who convert to citizens should also be required to serve NS. Alternatively the Government can choose to end NS and replace it with a wholly volunteer army.
A ruling that 377A is unconstitutional would also open the door also to striking down the barbaric punishment of caning, inherited from the British which is only applied to men under the age of 50. Like Section 377, it is a hangover from the Indian Penal Code of 1860 imposed by the British colonisers. Independent India abolished whipping in 1955. One of the reasons the PAP keeps caning is presumably to remind Singaporeans that there has been a smooth transition from one colonial government to another.
The Indian Supreme Court ruled in 2018 that Section 377 is unconstitutional. The Singapore Court of Appeal, presided over by the Chief Justice, now has an opportunity to do likewise. In fact it would seem that it cannot do otherwise. However, given that it would open the floodgates to striking down a whole host of discriminatory legislation, including NS being exclusively for men and second generation citizens and caning, coupled with the desire of our judges, who are paid many times more than judges in other countries, not to cross the man (LHL) who appointed them, I expect some weaselly compromise which will allow 377 to be preserved.
Even if the Court of Appeal rules that 377 is unconstitutional, the PAP Government is likely to just amend the Constitution to remove the equal protection clause or amend it in such a manner as to make it toothless. They can do this in a day, given that they have 81 out of 93 seats in Parliament. Until Singaporeans pluck up enough courage to overcome a gerrymandered system and deny the PAP a two-thirds majority that will continue to be so.