Lim Meng Suang and another v Attorney-General and another appeal and another matter
Jurisdiction | Singapore |
Court | Court of Three Judges (Singapore) |
Judge | Andrew Phang Boon Leong JA |
Judgment Date | 28 October 2014 |
Neutral Citation | [2014] SGCA 53 |
Citation | [2014] SGCA 53 |
Date | 28 October 2014 |
Published date | 10 November 2014 |
Plaintiff Counsel | Deborah Barker SC, Ushan Premaratne and Ng Junyi (KhattarWong LLP),M Ravi (L F Violet Netto) |
Defendant Counsel | Aedit Abdullah SC, Seow Zhixiang, Neo Xiulin Sherlyn, Teo Siqi and Jurena Chan Pei Shan (Attorney-General's Chambers) |
Docket Number | Civil Appeals Nos 54 and 125 of 2013 and Summons No 3664 of 2013 |
Hearing Date | 15 July 2014,06 August 2014,14 July 2014 |
Subject Matter | Interpretation,Constitutional Law,Constitution,Equality before the law,Right to life and personal liberty,Fundamental liberties,Equal protection of the law |
There are very few legal provisions in the Singapore legal landscape which, although simply stated (and intuitively attractive), are very difficult to apply in practice. Article 12 of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Singapore Constitution”) is one of these rare exceptions. In particular, Article 12(1) of the Singapore Constitution (“Art 12(1)”), which is one of the provisions in issue in the present appeals (
Equal protection 12. —(1) All persons are equal before the law and entitled to the equal protection of the law.…
The issue before this court in the present appeals can be stated very simply: is s 377A of the Penal Code (Cap 224, 2008 Rev Ed) (“the current Penal Code”) inconsistent with Art 9 and/or Art 12 of the Singapore Constitution (referred to hereafter as “Art 9” and “Art 12”, respectively), and hence, unconstitutional to the extent of such inconsistency? In this regard, Art 9(1) of the Singapore Constitution (“Art 9(1)”), which is the specific provision in Art 9 that the appellants in CA 54/2013 and the appellant in CA 125/2013 (collectively, “the Appellants”) are relying on, provides as follows:
Art 4 of the Singapore Constitution (“Art 4”), which is set out below, should also be noted:
Liberty of the person 9. —(1) No person shall be deprived of his life or personal liberty save in accordance with law.…
Section 377A of the current Penal Code, the provision which is the subject of the Appellants’ constitutional challenge, reads as follows:
We also note that there is a presumption of constitutionality inasmuch as a court will not lightly find a statute or any provision(s) thereof (referred to hereafter as a “statute” for short) unconstitutional (see, for example, the decision of this court in
Whilst the central issue in the present appeals (as set out above at [2]) can be stated simply, it is intensely controversial, and has elicited diametrically opposed (as well as, on occasion at least, intense and even emotional) responses in the extra-legal sphere, especially where Art 12 is concerned. A great many arguments have been mounted by proponents on each side of the divide. It is no exaggeration to say that this court found itself in the midst of a cacophony of voices. Be that as it may, only one voice – and one voice alone – is relevant in so far as the present appeals are concerned: it is the voice of the law, which represents the voice of objectivity. All other voices are irrelevant; indeed, they generate unnecessary heat (and distraction) rather than needful (and illuminating) light.
Important general points Only legal arguments are relevant Before we set out the background facts and procedural history of the present appeals, it is necessary for us to first highlight a few important general points. The first is that many of the difficulties encountered in the context of Art 9 and Art 12 relate to the fact that the court is often involved in a delicate balancing process. More importantly, it often faces a paradox which it must nevertheless negotiate. On the one hand, it must disregard extra-legal considerations that are uniquely within the purview of the legislature (here, the Singapore Parliament). This was in fact a central motif in the justly famous theory of adjudication proffered by the late Prof Ronald Dworkin (in an entire series of works, commencing with his seminal book,
Drawing such
In determining the constitutionality of a statute which is alleged to be inconsistent with Art 12 (or, for that matter, any other Article of the Singapore Constitution), the court’s main concern is to be careful not to trespass into extra-legal territory which legitimately belongs only to the legislature. Looked at in this light, the many extra-legal arguments on the constitutionality of s 377A are
It follows,
It follows that in the present appeals, this court will take into account
It is also important to emphasise that it follows that nothing in this judgment impacts the freedom of a person or group of persons to
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