RIGHTISM, REASONABLENESS AND REVIEW: SECTION 377A OF THE PENAL CODE AND THE QUESTION OF EQUALITY – PART ONE

• Author: THIO Li-ann BA (Hons) (Oxford), LLM (Harvard), PhD (Cambridge); Barrister (Gray's Inn); Provost Chair Professor, Faculty of Law, National University of Singapore.
• Publication year: 2022
• Published date: 01 March 2022
• Date: 01 March 2022

I. Introduction

1 Judicial philosophy informs interpretive method: in reading broadly framed rights to “personal liberty” or “equality”, divergent paths avail.

2 Courts may tread an “activist” path and treat these terms as empty containers, into which the preferred ideology du jour is poured into and from which an array of rights as entitlement claims are expansively pronounced into existence. Such courts are heroes or villains, depending on one's ideological orientation.

3 Alternatively, courts may demur from this path and adopt more modest forms of review that seek to refrain from legislating new constitutional rights in the guise of interpreting existing provisions. Where “political questions” or morally controversial issues are concerned, such as the fractious divide over what vision of public sexual morality should be normative, courts in refusing to descend into the political thicket evade criticism of illegitimate judicial law-making. Singapore courts have thus far manifested this latter predilection.

4 While all except the most ardent formalists accept that judicial interpretation is a creative exercise, the more pressing issue is the degree to which this is acceptable and legitimate. Where a court situates itself on this spectrum is itself a reflection of the relationship between legislators and judges in a constitutional democracy, how the rule of law and separation of powers is apprehended, and which rights theory is ascendant.

5 In Singapore, s 377A of the Penal Code2 (“s 377A”) is paradigmatic of the sort of issue that is contested both before courts of law and the court of public opinion. This provides:

Any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of,

any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to 2 years.

6 In the political realm, the “intensely controversial”3 debate over whether to retain or repeal s 377A has attracted “diametrically opposed” views before and beyond Parliament. The Prime Minister (“PM”) has described retaining s 377A, coupled with a policy not to proactively enforce it,4 as an “uneasy compromise”.5 Some political parties have refused to take clear positions towards this “symbolic”6 lightning rod for social conservatives and liberals.7

7 Both sides “have mobilised to campaign for their causes”:8 one side argues for “LGBTQI rights”, the other opposes the threat the homosexualism agenda9 poses to public morality and fundamental liberties like expressive and religious freedoms10 and parental rights

over their children's education.11 Judges have received death threats for deciding s 377A is constitutional;12 academic articles13 and op-eds authored by legal luminaries have urged both retention and repeal.14

8 The second decade of the 21st century has seen a steady stream of cases which have unsuccessfully challenged the constitutionality of s 377A. In 2013, the Court of Appeal in Lim Meng Suang v Attorney-General15 (“LMSCA”) affirmed the High Court decisions of Tan Eng Hong v Attorney-General16 and Lim Meng Suang v Attorney-General (“LMSHC”) that s 377A satisfied the reasonable classification test and passed constitutional muster. On the basis of new arguments, “including points premised on new historical evidence and case law”, subsequent to LMSCA, another failed challenge was brought in Ong Ming Johnson v Attorney-General17 (“Johnson”), which has been appealed. That challenge raised arguments based on Art 9 (life and personal liberty), Art 14 (freedom of speech) and Art 12 (equality) of the Constitution of the

Republic of Singapore18 (“Constitution”), liberally borrowing from a lengthy article authored by the learned former Chief Justice Chan Sek Keong.19

9 Many of these challenges are rooted in liberal ideology, which valorises individual autonomy and the “neutral” state that purports not to espouse a conception of human good, leaving this to individual self-determination. They are advanced by a “living tree” interpretive methodology which directly draws on value-based arguments; this brand of judicial activism sustains a conception of erotic liberty and equality of lifestyle that opposes “heteronormativity” and controversially asserts the moral equivalence of heterosexuality and homosexuality.

10 In other jurisdictions, this has produced “rightism”: a rights-oriented, court-centric model of constitutionalism where rights may operate as trumps. This manifests, in extremis, as a “cult of egalitarian liberalism”,20 a substantive ideology associated with ideological “progressive” liberalism, distinct from classic liberalism.21 This sits at odds with the approach adopted in Singapore, with its mix of political and legal constitutionalism, manifesting communitarian, statist and liberal values. The courts have viewed juristocracy as subverting constitutional principles of the separation of powers, rule of law and democracy.22

11 This article focuses on Art 12-related challenges to the constitutionality of s 377A and how the model of equality so championed is significantly driven by liberal ideology and its “hidden” values assumptions, which manifests “rightism”.

12 The prevailing test of “reasonable classification” and the accompanying presumption of constitutionality has attracted two primary criticisms. First, for being misapplied; second, for being too deferential in according primary weight to the “reasonableness” of Parliament. Critics advocate for more intensive review or appeal to equality as a categorical trump.

13 The article argues that scoping equality through the reasonable classification test remains appropriate within a communitarian polity, given the constitutional roles of the courts and Parliament, constitutional amendability, the broad reach of equality which applies to any differentiating law, and what might be described as a “moral questions” doctrine, informing a brand of calibrated judicial review. This bears analogical similarity to the political questions doctrine which recommends judicial deference in the face of polycentric, policy-laden and politicised issues. “Heavy-handed judicial intervention” would prematurely short-circuit democratic processes and does not resolve moral conflicts,23 as evident in the enduring abortion and same-sex marriage disputes in liberal jurisdictions like the US.24

14 The retention or repeal of laws like s 377A has wide-ranging legal and social consequences,25 which may be obscured within the parameters of judicial proceedings, where courts “decide cases on the basis of the facts and the arguments put to them”,26 often narrowly framed. Therefore, a judicial test like “reasonable classification” that recognises the primary role of elected representatives in managing polarising topics, is a reasonable choice, reflecting the role of courts within a system where political constitutionalism is accented.

15 This article is divided into two parts. Part One focuses on general interpretive approaches to fundamental liberties and the nature of the reasonable classification test, as applied to Art 12 cases. Part Two will take a deep dive into the specificities of the challenges against s 377A, in furtherance of the core argument in defence of the reasonableness of the reasonable classification test, and the normative desirability of resisting and rejecting the juristocratic path of rightism. It will examine alleged misapplications of the reasonable classification as well as arguments that this test be replaced by more aggressive judicial scrutiny.

16 Part II of this article discusses what “rightism”, fueled by liberal ideology, entails and what a “rightism” based challenge to s 377A might look like in terms of values-driven “living tree” interpretive approaches. This represents an anti-model to the contemporary judicial approach towards reading Pt IV of the Constitution (“Pt IV”), which does not conflate and confuse interpretation with amendment.27 It considers how “rightism” may impact administrative governance, in relation to expectations that s 377A not be pro-actively enforced. Part III of this article examines the “threshold” Art 12 reasonable classification test, what it does and does not do, and the extent to which it incorporates substantive elements beyond formal equality requirements. It considers the concept of equality in general and extant in Art 12(1) and how it interrelates with Art 12(2). It concludes with observations on how the reasonable classification test, in strictly cabining how considerations of legitimacy apply, is resistant towards “rightism” oriented interpretive approaches.

II. Framing constitutional challenges to section 377A: Rightism as anti-model?

17 According insufficient weight to fundamental rights is always a constitutionalist's concern. So too is undue emphasis on rights, the main pathway “judicial activism” travels upon, where juristocracy displaces democracy or tempers it “by aristocracy”.28 Strategically framing controversial political claims as legal rights insulates such claims from political contention, servicing a “politically correct”29 anti-constitutionalist totalising ideology.

18 “Rightism” is a shorthand reference to an ethos or patterns of rights-based argument valorising individual autonomy. “Rightism” may neglect that “individual rights do not exist in a vacuum”, but co-exist with competing rights, duties and public goods; to solely focus on “unfettered individual rights” may usher in “a society premised on individualism and self-interest”.30 Such hyper-individualism may breed a “worship of ‘rights’

and ‘choice’”,31 inflating the self, weakening the collective.32 A relentless individualism and rightist liberalism which sponsors extravagant rights formulations with peremptory weight fuels the “absoluteness” of “rights talk” and generates social conflict. By promoting...