NEW APPROACHES TO THE CONSTITUTIONAL GUARANTEE OF EQUALITY BEFORE THE LAW

• Citation: (2016) 28 SAcLJ 320
• Published date: 01 December 2016
• Author: Benjamin Joshua ONG BA Jurisprudence (Oxon), BCL (Oxon). Sheridan Fellow, Faculty of Law, National University of Singapore.
• Date: 01 December 2016

Case Note

Lim Meng Suang v Attorney-General

[2015] 1 SLR 26 (CA); [2013] 3 SLR 118 (HC)

Tan Eng Hong v Attorney-General

[2013] 4 SLR 1059 (HC); [2012] 4 SLR 476 (CA)

In a recent series of challenges to s 377A of the Penal Code (Cap 224, 2008 Rev Ed), the courts have developed the jurisprudence on review of legislation under Art 12(1) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”). Both the High Court and the Court of Appeal set a very high (but not insurmountable) threshold, but each did so in a different manner due to differing conceptions of equality. A critical examination of both approaches shows that the courts' conclusions are ultimately defensible more as a means of disposing of the instant case than as a watertight doctrinal foundation for Art 12(1) adjudication. The judgments also bring up other miscellaneous areas for further development.

I. Introduction

1 Section 377A of the Penal Code1 criminalises male-male acts of “gross indecency”. Against the backdrop of political debate in public fora and in Parliament regarding whether or not s 377A should be repealed, two attempts were made to have the courts declare it unconstitutional for breach of the principle of equality before the law in Art 12 of the Constitution of the Republic of Singapore2 (“the Constitution”). The first was by Tan Eng Hong, who was charged with an offence under s 377A (though the charge was later amended to one under s 294(a) of the Penal Code, which focused on the public nature of his sexual act rather than the fact that it involved two males). The second was by Lim Meng Suang and Kenneth Chee Mun-Leon, who sought to challenge s 377A

simply on the basis of their being homosexual men. Both applications were dismissed by Quentin Loh J sitting as the High Court;3 these decisions were upheld upon a conjoined appeal (but on different grounds) by a unanimous Court of Appeal comprising Andrew Phang Boon Leong JA, and Belinda Ang Saw Ean and Woo Bih Li JJ.4

2 Political interest in the outcome of the cases aside, these cases are noteworthy for containing some of the most detailed jurisprudence on Art 12(1) in particular and the judicial review of legislation in general: they were not simply a matter of applying settled law. Both courts struggled with the problem of how to formulate a test that would reserve to the courts a real power to identify and strike down the most objectionable laws, but not others which are a legitimate exercise of legislative power. In other words, these cases demonstrate the tension between the recent judicial adoption of the “green-light” model of the State5 and the much older statement that:6

… [t]he courts, in upholding the rule of law in Singapore, will no doubt readily invalidate laws that derogate from the Constitution which is the supreme law of our land.

3 Thus, while there are interesting debates to be had on the proper roles of the processes of prosecutorial discretion and adjudication by the courts in such polarising matters,7 as well as the broader issue of the interaction between morality and the law,8 this note is concerned with the doctrinal implications for Singapore's equality law under Art 12(1). It seeks to add to existing work on this matter9 by, without expressing an opinion on the outcome of the case or the merits of s 377A, highlighting elements of the procedural history of the cases as well as the differing approaches, both explicit and implicit, taken by the High Court and the Court of Appeal. The author will explore each court's approach, offering several possible doctrinal criticisms (but without commenting on whether they would necessarily have made

a difference to the outcome of the case) and ultimately concluding that the courts' approaches are, in the light of the complexities involved, defensible mainly as a means of disposing of the instant case but not as a means of laying the foundations for future Art 12(1) issues in other cases.

4 The issues raised by the judgments have proven to be so complex that organising this note has proven to be a challenge. Nonetheless, it is hoped that the following structure will be the most useful. The author will begin by examining the nature of the applicant's claims,10 before beginning his analysis of the nature of equality and hence the test for constitutionality under Art 12(1) by examining the High Court's approach.11 This will prove to require a more detailed look at the concept of legislative purpose,12 which will lay the groundwork for an examination of the Court of Appeal's approach13 by considering but ultimately rejecting a possible solution to the issues with the High Court's approach. The judgments also raise several miscellaneous side issues, which will be examined (in no particular order)14 before some concluding remarks are made.15

II. The claims made by the applicants

A. A novel type of claim

5 Although two cases were heard as conjoined appeals by the Court of Appeal, it must be borne in mind that they were fundamentally different. Lim and Chee's case was based on the effects of the very existence of s 377A: they said that it “reinforces … discrimination” and “social stigma” which, they said, made homosexuals “feel that they cannot be openly affectionate in public” and led to “discrimination in school and in the army”.16

6 On the other hand, Tan's case was, at least at first, based not on the existence, but rather on the application, of the law. Hence, one of the Court of Appeal's main reasons for granting him leave to pursue the claim was the potential violation of his constitutional rights between his arrest and the amendment of the charge.17 Even in so far as the alleged

latent violation of rights caused by the very existence of s 377A was concerned, the court focused on the potential criminal charges faced by him in future, rather than on matters such as social stigma.18 The closest thing that came to a recognition of social stigma as a violation of a right known to the law was the observation that s 377A “affects the lives of a not insignificant portion of our community in a very real and intimate way”,19 but even then the court immediately went on to focus on the legal consequences of this (eg, victims of male-male domestic abuse being reluctant to report it for fear of being prosecuted) rather than the social ones.

7 Seen in this light, Lim and Chee's case was truly novel, in that it was one of the first allegations that a law could be rendered unconstitutional by virtue of its extra-legal effects, or at least its tendency to produce them. One might therefore think that the traditional framework of asking whether the statute's classifying, and thus treating differently, legal subjects is (a) founded on an “intelligible differentia”; and (b) rationally linked to the purpose of classification (the “traditional test”)20 was fundamentally unsuitable to Lim and Chee's case. This is because this framework has to do with whether the effects mandated by the statute qua law are constitutional, whereas Lim and Chee's concerns were, at least in part, really about the effects occasioned by the statute qua sociological phenomenon. In other words, their claim was not about equality before the particular law in question (that is, equality before s 377A), but rather equality before the legal system (equality before the law, in the sense of the edifice of the legal system in totality as experienced by the legal subject).

8 This view might shed some light on why the courts characterised the differentia as they did. On its face, s 377A targets male-male sexual activity, not homosexuality itself. Thus, two heterosexual men who engage in sexual activity with one another would be caught by the law, but not two homosexual men who perform intimate, even sexual, acts not amounting to “gross indecency”. Yet Loh J held (and the Court of Appeal agreed)21 that the differentia was between “male homosexuals or bisexual males who perform acts of ‘gross indecency’ on another male” [emphasis added] and other persons22— he read into the purpose of the statute a differentiation based on sexual orientation which is not evident from the face of the statute.

B. Were the claims legal or extra-legal?

9 Thus, strictly speaking, the right that Lim and Chee sought to assert in court was not quite the same as the right on the basis of which Tan, and probably, by extension, they,23 had been granted locus standi. One might suspect that it is their novel contentions that prompted some apprehension by the Court of Appeal, which began its judgment with a warning that the court cannot “be sucked into and thereby descend into the political arena” [emphasis in original] by taking into account “extralegal considerations” instead of only “legal arguments”.24 On this view, as far as the Court of Appeal was concerned, the only permissible reason for challenging a criminal statute was fear of prosecution under it (and not, say, social stigma which it adds to).

10 It is certainly true that, as the Court of Appeal noted, judicial fairness does not demand that the court start with a desired substantive outcome in mind and then twist the law to work towards it. The Court of Appeal's judgment does, however, raise the issue of what exactly a “legal argument” is, given that the court has the power to apply and to change the law: there is an element of circularity in saying that the court can only consider legal arguments, given that, by definition, “legal” matters are simply those which a court of law may consider. It might, moreover, be the case that the law demands (or is changed so as to demand) that the courts take into account what would otherwise be “extra-legal considerations”.

11 The upshot is that one cannot escape from the fact that the court has Kompetenz-Kompetenz, in that it itself determines what is “legal” and what is not: the phrase “legal argument” may well be a stand-in for some...