Ripping apart Singapore's High Court Decision this week

This IS everything. My friend Michael Kirby (former Australia Supreme Court Justice)'s comments on the #377A decision in #Singapore this week are superb. He highlights the aberration and grave danger of having a constitutional court claiming that it has no jurisdiction because the law is "not enforced" by the Government. Like him - even though I am regularly told by Singaporeans friends that #377A and injustice in Singapore is none of my business - I believe "it is the duty of friends to draw that fact to their notice. Respectfully but firmly." Take the time to read it:

"[On] the very disappointing decision of the Singapore Court on section 377A of the Singapore Penal Code.

It is disappointing in that it does not recognise (as most Commonwealth courts of appeal have done in recent years) the duty of the courts to strive to harmonise municipal law with the developing universal law of human rights. Relevantly as to how that universal law now moves in the direction of protecting LGBT people.

Moreover, it does not recognise the need for constitutional courts to shift gears when construing a constitutional text designed to express and protect basic rights and dignity. The construction of section 377A of the Singapore Penal Code adopted by the Court of Appeal is one appropriate for a statutory text impinging in the intersecting rights, under civil law, of individuals. It is not really appropriate, or even common nowadays, in the construction of constitutional provisions designed to uphold universal human rights and human dignity.

The least persuasive reason mentioned in the text is the statement of the Executive Government and it’s the importance attached to personnel in Singapore that section 377A is “not being enforced” and is therefore not only unnecessary for evaluation on constitutional grounds; but also, the citizens who complained about the provision have no “standing” to bring the complaint because they are not adversely affected. They are indeed adversely affected by being demoted to second-class citizenship; humiliation; indignity; and the risk at the whim of police or other officials that they will be prosecuted under the section. This is an intolerable situation from the viewpoint of constitutional provisions that include protections of fundamental rights.

The citation of particular provisions of the Singapore Constitution (including Articles 12 and 14) is unsatisfactory as failing to show proper regard to the purposes of those constitutional protections. If they exist, they belong to the persons affected. They are not included in the Constitution so as to be implemented or withheld, or for purely political or policy reasons by officials, including a Prime Minister.

One of the great disputes of English constitutional history (which is the ultimate background to the Constitution of Singapore) was a complaint of the English people in 1688 that King James II had administered the law differentially and ignored visions that he personally disagreed with. Those provisions related to the rights of Roman Catholics in England. The consequence was the banishment of King James II to France and his replacement by Queen Mary II and King William III (from the Netherlands). The original Bill of Rights of 1689 contained a provision insisting that the law must be interpreted neutrally and could not be withheld or enforced by the Crown at the say so of political actors. Otherwise, legislation would have to be interpreted as containing an implied provision that, if it were not imposed, then however inconsistent with the law and the principles of the Constitution, it would be acceptable. This is truly, is a separation of powers issue. Parliament of Singapore has enacted section 377A. On its face it is just another provision of the Penal Code. It is not the proper province of the Executive Government to say that any defects or blemishes in section 377A can be ignored or subjected to a “blind eye” because it is not enforced by the Executive Government. Self-evidently, that is an intolerable interpretation and especially when it comes to the enforcement of fundamental constitutional rights of individuals.

I have seen some statements of well-meaning commentators expressing satisfaction at the reliance placed by the Singapore Court on the non-enforcement of section 377. I do not agree with those statements. They are inconsistent with constitutional history and with well-established constitutional principle.

The separation of powers means that Parliament has the power to make laws (with some exceptions for judicial lawmaking); the Executive Government has the power and duty to enforce laws so made. And the judiciary has the power and duty to interpret those laws and (where they exist) to enforce constitutional guarantees that prevail over the ordinary laws made and are are enforced by the other branches of government.

When so many other constitutional courts, dealing with equivalent problems in other Commonwealth countries have seen the courts perform and enforce their duty to uphold and protect constitution rights, it is disturbing to see that this is not the view of its role that has been adopted by the Singapore Court of Appeal.

In my respectful view, that decision of the Singapore Court of Appeal will not be the last word on this topic. Ultimately the legislature will repeal section 377A or, if it does not, a differently constituted court of appeal, in the future, will declare that the provision offends the stated constitutional rights. It impinges upon self-expression of sexual minorities. It is inconsistent with civic equality of citizenship in Singapore. It chooses irrational and disproportionate criteria for the assertion of its validity. It is offensive to universal human rights that should impinge in the interpretation of basic constitutional rights. The legislature, the Executive Government and officials all have rights and duties under the Singapore Constitution. But so do the courts. This has been in this contest recognised in recent years by so many other countries including India, Belize, Seychelles, Botswana and others. It should have been enforced by the Court of Appeal of Singapore. Their decision was profoundly disappointing and, respectfully, their reasoning is unconvincing and interprets the rights in the Singapore Constitution as if it were trivial and particular legislative measure of minor importance.

I regret to say that it is another unpleasant decision from the Singapore courts. Not a single judge in this case took a different view. I cannot remember a case, important for fundamental individual rights, where the Singapore court has disagreed with the submissions advanced by the government. Governments have their duties. But so do courts. Where they are excessively timid and out of line with other Commonwealth and international developments, it is the duty of friends to draw that fact to their notice. Respectfully but firmly."