Monday, August 30, 2010

Lay(person)ing the law: Section 377A's constitutionality

I am neither a lawyer nor legally trained. Some more, social studies was not examinable when I was in secondary school (good old Singaporean excuse). However, I am often perplexed at what I believe to be a great incongruity between our Singaporean Constitution and statutory laws. Please correct me if I am wrong! Much appreciated, because I'm still learning.

From what I understand, the constitutional law, or the Constitution, lays down the foundations for justice and other laws. It defines, although rather generally and vaguely, the terms and boundaries for government, including the rights of citizens.

The statutory law on the other hand, is created by the legislature (all the people in Parliament, right? Well, almost all), with a view to maintain peace and justice, and based on and also well within the principles and guidelines of the Constitution. These laws created by the legislature represent the legislature's interpretation of what is and will be good for the well-being of citizens and stability of the country. Technically, the judiciary interprets the statutory law and the executive (the government or Cabinet plus President, is that right?) will enforce it.

All three parties, legislature, judiciary and executive are technically separate entities. However, in Singapore's case, the legislature is overwhelmingly PAP (thanks to democracy, the GRC system and gerrymandering under the rubric of minority representation which is basically racial politics), and because of that, can easily pass laws aligned with their political ideology. The passing of laws require a democratic voting process in Parliament, and democracy is fully exploited here when you have like-minded (or party whipped) individuals in the house.

Furthermore, the Cabinet (which comprises the executive along with the President) determines the legislative agenda of Parliament, signifying a rather close and unequal relationship between the executive and legislature. The President, meanwhile, will act on the advice of the Cabinet, and according to political critics, is believed to be subsumed under the authority of the Cabinet (it's not true "on paper" and "by right"). For example, look at the calls for presidential clemency for Yong Vui Kong, and the reason given by the judiciary.

Any way, I have a very limited layman understanding of the technicality of government. I just want to establish, as a layperson, my view that some (statutory) laws appear to be outside our constitutional boundaries, indicating that something is amiss in the decision-making and law-passing processes of the legislature.

According to (not so reliable) internet sources and friends, the Constitution also acts to prevent the evils/excesses of democracy. For example, 51% of citizens can technically vote to kill off the other 49%, but the Constitution is there to ensure that this is not abused. I learned (not from secondary school though) that the constitution is there for minority protection. However, democracy ceases when we have a predominantly PAP legislature convening to cast a two-thirds majority vote to pass certain laws. Although the passing of laws is done with what the legislature believes is for the good of Singapore, it is done by a single-minded entity with perhaps limited discussion and deliberation, and any vigorous debate will merely constitute a formality or a newsworthy spectacle (see the Casino parliamentary soap opera).

For example, the Constitution (and I will continue to specifically refer to Part IV of the Constitution of the Republic of Singapore, which states our fundamental liberties) states that we all have a right to equal protection and freedom of religion, among other rights. And the legislature, in view of this, has rightly created statutory laws to protect, for instance, people's freedom to practice any religion (sorry for the Jehovah's Witnesses).

So, we have Chapter XV (Offences Relating To Religion Or Race) of the Penal Code, designed, passed and implemented to ensure that people can freely practise their religions and have protection from having their "religious feelings" "injured" or "wounded". The various decisions/actions of inheritance (from British colonial laws), maintenance, amendments, creation and repealing are political processes indicative of what the legislature feels is relevant to the governing of Singapore.

All the Ministers (of the Cabinet) take the oath to preserve, protect and defend the Constitution of Singapore. And that is probably why the Constitution cannot be easily amended, simply because, like religion, it cannot be questioned by ordinary persons. The President also has his hands tied because his powers are often contingent on his "consultation" with the Cabinet.

Any way, there are many statutory laws that appear to limit and curtail Singaporeans' constitutional rights. For example, to exercise your constitutional right to freedom of speech and expression, you have to apply for permits or risk being arrested. There are also out-of-bound markers established to limit this constitutional right. Moreover, sometimes when you speak, the police encircle you and prevent you from speaking, rather than surround you to protect you and defend your constitutional right. In another example, to exercise your constitutional right to peaceful assembly, you need a permit again, or what you do would constitute an unlawful assembly, no matter how peaceful it is. When government blacklisted people assemble, their constitutional rights appear to be stripped away from them when the police surround them to prevent them from assembling peacefully. The constitutional idea of "peaceful" is again interpreted by the executive and legislative, which is why certain laws are passed that (un)fortunately limits your constitutional rights.

I would like to focus on constitutionality of the statutory law on consensual sex between 2 men. Actually, I had wanted to also discuss marital rape, but that would involve a discussion of the need for Singaporean law to honour and protect the importance and sanctity of consent.

Well, let's just discuss consent first then. I believe one of the fundamental principles of having a law in place is to honour and protect consent. I'm not sure whether there is any mention, hint or metaphor (currently the hot keyword these few days) relating to the idea of consent.

But the principle of consent runs deep in most statutory laws. At the basic level, there are laws, rules and codes of ethics in different domains that determine the boundaries of consent, namely who are the people who are capable of giving consent. By order of elimination, taking away minors, teenagers, persons with certain degrees of learning disabilities and handicap, very elderly folks, persons with mental disorders, and NS-liable Singaporeans, we more or less know who are recognised by the law to be able to grant consent.

The rest of the "incapable of giving consent" people are deemed incapable of giving consent due mainly to their mental and emotional aptitude, but in the case of NS-liable Singaporeans, the state entirely removes the need for consent.

The idea of "consent" is as much an ethical idea as it is a legal idea. At the level of the law, the reason why it is wrong to kill someone is not only does it reduce productivity and disrupt economic progress (according to the PAP government), it is wrong because the killed did not want to be killed in the first place. No one wants to be killed, or with respect to other crimes, robbed. There is no consent given. That we have laws in place to prohibit murder and robbery, show that the law is (sometimes) aligned with what is deemed ethical. What is ethically right, may be legally wrong, vice versa; and for the case of robbery, what is legally wrong is also ethically wrong.

In the case of adult males having consensual sex, its criminalisation firstly does not honour the principle of consent. A morally right/correct exchange is deemed a legal wrong.

At the next well, compared with consensual sex between an adult male and adult female, the criminalisation of consensual sex between adult males is indicative that some Singaporeans have more rights than others. This is discrimination from a statutory law, and is not aligned with the Constitution. If all Singaporeans are equal, and that the principle of consent is preserved and consistent across all segments of adult Singaporeans who are deemed by law capable of granting consent, there would be no statutory law that has discriminatory treatment of Singaporeans who engage in adult consensual homosexual intercourse or adult consensual heterosexual intercourse.

The criminalisation of adult consensual homosexual intercourse, under Section 377A of the Penal Code, is indicative that self-identified homosexual Singaporeans (or residents in Singapore) are either deemed incapable of giving consent, or that the principle of "consent" does not apply to non-heterosexuals. Either way, how is this justified constitutionally?

I believe even the argument on the grounds of culture and values cannot hold water, given that the Constitution is there to protect minorities, and minorities also have diverse cultures and values, differently from those that have been said to inform the creation and development of law. Surely law-makers cannot be held ransom by influential persons from alleged "majority" cultures and values, or can they?

Technically, from what I learned from a lawyer friend, the legislature may create a law, but the judiciary can choose not to act on it. In Singapore's case, the government (executive) has said that while Section 377A is there, it will not be actively enforced, if I am not wrong. With this, we will never know if the judiciary will ever consider it criminal for 2 men who are brought to court for adult consensual homosexual intercourse.

Apart from debating the constitutionality of Section 377A, is it even constitutional for the executive to enforce this law (based on the implications on equality as decreed by the Constitution)?

I believe the crime is sexual violence and assault, because these items are non-consensual. Like rape, the victim is deemed by law to be a non-consenting party and deserves protection. I cannot wrap my mind around the idea that consensual adult homosexual intercourse (that does not concern me or my family) is criminal.

Another principle of the law, I believe, is to protect people from harm. Consensual adult homosexual intercourse (in the private domain, because public sex is illegal) does not in any way harm people in the public domain. How can consensual adult homosexual intercourse ever be justified harmful to the country and citizens other than the two persons involved, enough to be criminal? It does not affect internal security (unless Christian fundamentalists, a minority by the way, storm Parliament or enter Parliament based on merit), neither does it affect national security.

The government (executive) has continually justified its stance by saying that the law reflects the values of Singaporeans. True. What I learned in the increasingly overcrowded National University of Singapore is that the law is the aspirations and ideals of a society.

Sociologically, a society is often times governed in the interests of specific groups. These groups can be politically, socially and economically influential. They could also be capable of violence and that being in power all the more grants them greater privileges of violence. The two said groups may also overlap. When the law is created, amended or retained, it is a political process within the discourse(s) of the these powerful groups.

For instance, if the PAP government sees harmonious multiculturalism and multireligiosity as integral to national unity and peace, it will create, amend and retain laws to ensure this vision stays on track.

The very fact that the PAP government omits sexual citizenship and rights, is indicative that it is unwilling to recognise the constitutional rights of LGBT Singaporeans. At the same time, its inaction in addressing the constitutional rights of LGBT Singaporeans is reflective of certain pressures it faces from segments of the citizenry.

The protection of the constitutional rights of anti-LGBT Singaporeans cannot be extended to the discrimination of LGBT Singaporeans and the criminalisation of consensual adult homosexual intercourse. This is morally wrong and (constitutionally) legally wrong.

At the same time, the law, inherited from Colonial rule, cannot be and should not informed by a couple of religious beliefs, because self-professed secularly legal Singapore is multireligious, which means while we may have spaces dedicated for religion, no single religion can have 100% say and take priority in governance in the public domain (unless they threaten violence as we have seen in other countries).

Unless of course, multireligiosity is all rhetoric and do not really mean anything as codified in the Constitution. Worse, even if it means something, does this mean that non-religious Singaporeans have one less Constitutional right and have one less reason for the government to protect them, than Singaporeans with religion? I mean, since non-religious Singaporeans are deemed by the law to have little-to-no "religious feelings" worth injuring, are they thus not worth protecting.

I hope not only the LGBT community bear the responsibility of questioning Section 377A's constitutionality, but also heterosexually-identified Singaporeans. We know so little of our constitutional rights, and education is oriented towards the visibility of statutory laws affecting daily lives, at the expense of the Constitution. People do not realise the extent to which some of their constitutional rights are being curtailed by certain statutory laws and the state's interpretation of some of them. These have to be continually questioned and I believe the state has a responsibility to listen and address these questions.

Maybe an expert of constitutional law can shed some light on the incongruity between statutory law and constitutional law. We could turn to Professor Thio Li-Ann.

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