Constitutional and Administrative Law (LAW204) 20132014, Semester 2 Individual Resear !

"a#er

Se tion: Instru tor: $o#i %um&er:

G1 Prof Eugene Tan 5 (Own Topic)

s3''A o( t!e "enal Code !as &een !eld onstitutional in Sin)a#ore* W!at s!ould &e t!e law in Sin)a#ore, wit! #arti ular (o us on its onstitutionalit+ vis,-,vis Art . and 12 o( t!e Constitution/ $!e ar)ua&le0dis#uta&le as#e ts o( t!e landmar1 ases s!ould &e t!e (o us* Student %um&er: I declare that this research paper contains _3000_ words. 1

The author would li e to than !ssoc Prof "ap Po #en of $ni%ersit& of 'ong (ong for his %alua)le co**ents. !ll errors are the author+s own.

The ,G'- decisions in Tan Eng Hong (TEH) and Lim Meng Suang (LMS) are unsatisfactor&. s/00!1 *ight %iolate !rticle 11 of the ,ingapore -onstitution/ (2!rt3114). !rticle 56 (2!rt354) and the funda*ental rules of natural 7ustice (289:#4) will )e considered; )ut as the& are unli el& grounds for successful challenge; discussion is parenthetical.

I* Art,12 C!allen)e The 2reasona)le classification4 test5 has a contentious second li*): what was the purpose of the act< =as there a rational nexus %is3>3%is the differentia< =as the classification under3inclusi%e or o%er3inclusi%e< =as it broadly proportionate to its purpose< The conflicting ,G'-?@,G-!0 7udg*ents in Taw C eng !ong show that purpose selection is pi"otal.A Purpose can )e legislati"ely arti#ulated; or not.5 It is #ontentious if the purpose oug t to be:

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s/00! of the Penal -ode. -ap 116; 1BBA 9e% Ed. -onstitution of the 9epu)lic of ,ingapore (1555 9eprint) !rt 11. 4 -onstitution of the 9epu)lic of ,ingapore (1555 9eprint) !rt 5. 5 Tan Eng Hong " $ttorney%&eneral C1B1/D 6 ,E9 1B55 at C1?D. 6 Taw C eng !ong " '' (())*) 1 ,E9(9) 0A. 7 '' " Taw C eng !ong (())*) 1 ,E9(9) 6A5. 8 This was discussed in Lim Meng Suang and anot er " $ttorney%&eneral (1B1/) / ,E9 11A at C51D; C5?D and C5AD. 9 The ,ingapore courts see* to constrain the*sel%es (i*plicitl&) to arti#ulated legislati"e purpose. ,ee; eg; Taw C eng !ong " '' (155A) 1 ,E9(9) 0A where F (arthigesu #! relied on Parlia*entar& Ge)ates; and re*inded the court that as a *atter of statutory interpretation; the rele%ant pro%ision which was added )& a 15?? a*end*ent had to ha%e its purpose loo ed at afresh instead of *ere reliance on earlier *aterial when the original !ct was enacted. On appeal; the ,G-! in '' " Taw C eng !ong (155A) 1 ,E9(9) 6A5 did not co**ent on his approach to statutor& interpretation; )ut loo ed at the preamble of the statute; to read a broader purpose to the pro%ision. In +guyen Tuong ,an " 'ubli# 'rose#utor (1BB6) 1 ,E9 /1A; the -ourt of !ppeal utilised the legislati"e purpose of the anti3drugs legislation as elucidated in -ng $ C uan " '' (1505315AB) ,E9(9) 01B.

(a) The arti#ulated purpose elucidated )& !ttorne&3General 'owell (2'owell4) when s/00! was introduced into ,ingapore1B (215/A purpose4). ()) Hased on the 1BB0 Parlia*entar& Ge)ates 11 (2'ansard4) re*o%ing s/00 and retaining s/00! elucidating an arti#ulated purpose . or (c) The present%day purpose(s).

The court mig t be wrong to # oose t e ()/* purpose as "ap argues in Se#tion /00$ and E1ual 'rote#tion in Singapore11 (2E1ual 'rote#tion4). (/ :o *atter which purpose is chosen; the !rt311 challenge *ight succeed.

A. 1938 purpose The ,G'- asserts t at s/00$ retains its ()/* purpose (2. The 15/A purpose *ust )e selected if arti#ulated purpose *ust )e considered. there would )e #omplete #oin#iden#e )etween the differentia and purpose and so there can )e no o%er3inclusi%eness@under3 inclusi%eness. 'owe%er; this purpose is argua)l& illegitimate.

B. Hansard as articulated purpose

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!G 'owell elucidated the 15/A purpose in front of the Eegislati%e -ouncil when introducing the 'owell !*end*ent. ,ee 'ro#eedings o3 t e Legislati"e Coun#il o3 t e Straits Settlements (1/ #une 15/A) at H65. this was reproduced in Lim Meng Suang and anot er " $ttorney%&eneral (1B1/) / ,E9 11A at C??D. 11 ,ee Singapore 'arliamentary 4ebates; Official 9eport (11 Octo)er 1BB0) %ol A/ at cols 11053110?; with especial attention to the co**ents )& ,enior Finister of ,tate for 'o*e !ffairs (!ssoc. Prof. 'o Peng (ee). 12 "ap Po #en; 2,ection /00! and EIual Protection in ,ingapore: Hac to 15/A<4 C1B1/D 15 ,!cE# ?/B. 13 'owe%er; if the court adopts the three3tiers le%els of scrutin& (which will )e discussed later); the arti#ulated legislati"e purpose *ust )e adopted (as a *atter of law) if eig tened s#rutiny is awarded. :ecessaril& then; the 15/A purpose *ust )e chosen. 14 ,ee Lim Meng Suang and anot er " $ttorney%&eneral (1B1/) / ,E9 11A at CA5D. The court ca*e to this conclusion that the purpose of s/00! re*ains unchanged fro* the 15/A purpose after an eJa*ination of the 1BB0 Parlia*entar& Ge)ates. $propos; it is difficult to see how the 15/A purpose is retained especiall& when the 15/A purpose was to strengthen the cri*inal law to punis pri%ate acts. -urrentl&; howe%er; s/00! is not acti%el& enforced against pri%ate acts; ie; pri%ate acts are not penalised.

'ansard is not arti#ulated legislati"e purpose.(5 !s the law was not re3enacted; nor was a %ote ta en as to its repeal; an& de)ates were necessaril& inconclusi%e. 'ansard; whilst helpful to elucidate present3da& purpose; should not )e ta en as #on#lusi"e as to present%day purpose )ecause it does not pro%ide an ex austi"e discussion.

C. Present-day purpose16 8irst; "ap argues that present%day purpose is *ore rele%ant10; especiall& when the articulated purpose was propounded in colonial ,ingapore (adopting the 15/A purpose )rings us )ac to 15/A) . he argues that reliance on articulated purpose is *erel& self3 i*posed1A. ,econd; it is su)*itted that the court should re%# ara#terise if necessar& to deter*ine the present3da& purpose )ecause the arti#ulated purpose *ight well )e a sha*@facade. In 'eerless(); cited with appro%al in +a6 7oundation89 (2+a6 (899))); the court ad%ocated li3ting t e "eil to disco%er the true nature of the legislation to handle stealth& encroach*ents on funda*ental rights.
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This was recognised in Lim Meng Suang and anot er " $ttorney%&eneral (1B1/) / ,E9 11A at C00D. :uaere: In cases of *ultiple purposes; whether only the su)stantial purpose is to )e considered. If all purposes (including incidental) are considered ad seriatim as a chec list; then it *ight )e o"erly onerous on the legislature especiall& if the under3 inclusi%eness and o%er3inclusi%eness li*) of the rational neJus test were expressly a##epted as part of the law ()ecause failure to esta)lish a rational neJus to any one purpose *ight )e 3atal). Or should the court see whether; in the o%erall anal&sis; there is a rational neJus )etween the purposes and the differentia ( ie; failing to esta)lish rational neJus for one purpose is not ipso 3a#to fatal). 17 E1ual 'rote#tion at C11D3C1/D. This *ust )e correct. The 15/A so#io%politi#al #ontext and the so#ietal moralities (if legislating for su)7ecti%e i**oralit& which leads to i*pact upon an insular and i**uta)le class were per*itted) were %er& different. It was further argued )& the learned professor that if the court used the 1BB0 de)ates to elucidate the continued rele%ance of the 15/A purpose; then an& new purpose as ad%anced then 2*ust )e pertinent too4 at C1/D. 18 It *ight )e argued that usage of articulated legislati%e purpose is not a self3i*posed restraint. There *ight )e an i*plicit presu*ption that the Parlia*entar& intention is the true ob;e#t of the legislation; unless it can )e shown otherwise. 19 'eerless &eneral 7inan#e <n"estment Co. Ltd " =eser"e >an? o3 <ndia F!:$@,-@B?A5@1551. 20 +a6 7oundation " &o"ernment o3 +CT and -rs (1BB5) at C116D.

Present3da& purpose need not be articulated. The $, courts ha%e no re1uirement that 2legiti*ate legislati%e end4 *ust )e articulated purpose. 11 !s the court can arguably go )e&ond 'ansard; 'ansard is not conclusi%e.

'owell+s state*ent11 elucidated that ,ingapore needed to strengthen its cri*inal law to *a e 2punis ment4 possi)le for e%en pri"ate acts. The purpose toda&; owe"er; is to punish only publi# acts1/. The purpose has changed. the present3da& purpose cannot )e the 15/A purpose. It is no longer a##eptable to proacti%el& police pri%ate ho*oseJual acts. it *ight lead to a *assi%e pu)lic outcr&. This fits into the courts+ h&pothetical where the original purpose is no longer applica)le@accepta)le; )ut there is a new purpose that can )e fulfilled. 16 If the court fra*es present%day purpose narrowl&15 (ie; to punish pu)lic acts; or acts against *inors1?); s/00! is o%er3inclusi%e (ie; the pro"ision would ha%e caught pri%ate acts) . It *ight also )e illegiti*ate purpose (this is argued )elow).
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There *ust )e rational neJus )etween differentia and the legiti*ate state interest. This is where rational )asis (*ini*u*) le%el of scrutin& is applied. 'owe%er; at heightened scrutin&; arti#ulated legislati"e purpose *ust )e used )& the courts. 22 !G 'owell+s state*ent in front of the Eegislati%e -ouncil when introducing the 'owell !*end*ent. ,ee 'ro#eedings o3 t e Legislati"e Coun#il o3 t e Straits Settlements (1/ #une 15/A) at p H65. this was reproduced in Ei* Feng ,uang and another % !ttorne&3General (1B1/) / ,E9 11A at C??D. The rele%ant portion is: 2!s the law now stands; such acts can onl& )e dealt wit K under the Finor Offences Ordinance; and then only i3 #ommitted in publi#. 'unis ment under the Ordinance is inadeIuate and the # an#es o3 dete#tion are s*all. It is desired; therefore; to strengthen the law4 Ce*phasis addedD. 23 !ssoc Prof 'o+s co**ents in 'ansard which were reproduced at CA1D of Ei* Feng ,uang and another % !ttorne&3General (1B1/) / ,E9 11A : 2the police had not )een proacti%el& enforcing s/00! and would continue to ta e this stance eJcept where *inors were eJploited or a)used or where *ale adults co**itted the offence in pu)lic places such as pu)lic toilets or )ac 3 lanes4. There has also not )een prosecution )& the !ttorne&3General under s/00!; eJcept in Tan Eng 'ong; where the charge was su)stituted with a lesser charge of co**itting an o)scene act in a pu)lic place. 24 ,ee CA0D of EF,. the ,G'- see*ed willing to consider the position that articulated purpose need not )e used. 25 The ,G'- in EF, and TE' prefers to fra*e the purpose narrowly (such that differentia and purpose is coincidental); and shun )road (or incidental) purposes such as to preser%e the 2)asic )uilding )loc of societ&4; procreation; 'IL pre%ention; etc. 'a%ing a broad purpose opens up the argu*ent that the legislation is under3inclusi%e; )ecause it fails to capture fe*ale3fe*ale acts of gross indecenc&. It also opens up the argu*ent that ha%ing s/00! does not necessaril& pro*ote the fa*il& unit. will ho*oseJuals )e co*pelled (do the& e%en ha%e such an a)ilit&) to for* traditional fa*il& units when the legislation that is not a#ti"ely enforced (against pri%ate acts) is retained< 26 The Prosecution argua)l& would onl& go under s/00! for such egregious cases li e acts against *inors or pu)lic indecencies; )ecause s/00! offers a ars er puniti"e regime than s156 of the Penal -ode (-ap 116; 1BBA 9e% Ed.).

If a )roader present3da& and pra#ti#al purpose is chosen; eg; pre%enting 'IL10; 2Ccri*inaliMingD sa*e3seJ )eha%iour to reflect C moral opprobriumD41A; promoting t e 3amily unit@procreation15; there are separate pro)le*s. If the purpose is to reflect *oral oppro)riu* and pro*ote the fa*il& unit; there is gross under3inclusi%eness (not penaliMing les)ians). $propos 'IL pre%ention; there is no e%idence that repeal increases 'IL rates. -on%ersel&; retention *a& in#rease 'IL rates )& dri%ing the infections underground. this was accepted in :aM (1BB5)./B The 'IL protection purpose *a& ha%e no rational neJus to the differentia; li e in =omer/( . The under@o%er3inclusi%eness su)test is onl& ,G'- authorit&. /1 The ,G-! did not pronounce on whether o%er3inclusi%eness is fatal; )ecause no o%er3inclusi%eness was found.// It could )e argued that o%er3inclusi%eness is not ipso 3a#to fatal. Howe"er@ gross o%er3inclusi%eness (eg; penaliMing pri%ate acts; where the purpose is to penaliMe only pu)lic acts) *eans that the diffferentia was not broadly proportionate/2 to
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E1ual 'rote#tion at C15D. Prof "ap argues that if pre%ention of 'IL were the purpose; it has to )e eJa*ined if cri*inalisation of *ale3*ale ho*oseJual conduct would )e e33e#ti"e to achie%e the purpose. If it is ineffecti%e; there is no rational relation. 28 E1ual 'rote#tion at C1BD. Prof "ap argues that if the purpose is to de*onstrate societ&+s oppro)riu* towards ho*oseJualit&; then the failure to cri*inalise fe*ale3fe*ale acts a*ounts to under%in#lusi"eness. ('owe%er; it is su)*itted that it *ight )e counter3argued that societ& was *ore opposed to *ale3*ale acts as opposed to fe*ale3fe*ale acts; as seen fro* the 7udg*ent in EF, at C11BD N C11?D which noted that co**on law 7urisdictions onl& penalised *ale3*ale acts ostensi)l& )ecause the& were *ore repugnant. Thus the under3inclusi%eness mig t well )e 7ustifia)le. howe%er; e"en i3 the rational neJus is there)& de*onstrated; such a purpose *a& not )e legiti*ate N as will )e argued later.) 29 This would also run into the sa*e pro)le* of under%in#lusi"eness for not including les)ians 30 In :aM (1BB5) at C01D; it was accepted that the Indian eIui%alent eeps a large section 2in%isi)le and unreacha)le4; dri%ing infections underground; *a ing it difficult for social@health wor ers to reach the* as the& fear cri*inal prosecution. The court cited Toonen " State o3 $ustralia -o**unication :o. 6AA@1551; $.:. Goc --P9@-@5B@G@6AA@1551 (1556) where an !ustralian citiMen in Tas*ania su)*itted a hu*an rights co*plaint against sodo*& laws in Tas*ania. ,i*ilar o)ser%ations were *ade )& the $nited :ations 'u*an 9ights -o**ittee. :aM (1BB5) was o%er3ruled in Sures !umar !ous al and $nor " +a6 7oundation and -rs (1B1/) at C6BD on the grounds that there was no factual )asis for such assertions. 31 =omer at 1?15. 32 Taw C eng !ong " '' (155A) 1 ,E9(9) 0A. The Iuestion to )e as mig t be whether the under@o%er3inclusi%eness led to there )eing no rational neJus. Otherwise; under@o%er3inclusi%eness in itself is not fatal. 33 '' " Taw C eng !ong (155A) 1 ,E9 61B at CA1D. 34 This refra*ing of the rational neJus test was endorsed )& the ,G-! in Aong ,ui !ong " '' (1B1B) / ,E9 6A5 at C111D and reiterated in the ,G'- decision in EF, at C56D.

the present3da& purpose; and did not )ear 2a reasonable and ;ust relation to the purpose4./5 =hilst so*e cases/? hold that o"er%in#lusi"eness is not fatal; these in%ol%e e*ergencies or positi%e discri*ination. thus; (se%ere) o%er3inclusi%eness s ould )e fatal for s/00!. Similarly; since gross under%in#lusi"eness *eans a 2huge seg*ent4 (les)ians) is 2legislati%el& o*itted4; 2one can %er& reasona)l& argue that the law is not proportionate to the o)7ect4./0

D. Was the purpose legiti ate! EF, introduced the safeguard of legitimate purpose./A

(() <nsu33i#ient grounds 3or olding t e ()/* purpose as legitimate The court ga%e two insu33i#ient grounds for concluding that the ()/* purpose was legiti*ate./5 8irst; it uncon%incingl& held that s/00! had stood the test of ti*e and so cannot )e )aseless.6B Fight it not )e si*ilarl& argued that if s/00! did not (ulti*atel&) sur%i%e in its *otherland ($() and most other respected 7urisdictions61; it is argua)le that its
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The 2reasona)le and 7ust4 ela)oration of the rational neJus test was used )& the ,G'- in EF, at C5/D. ,ee Hirabayas i " Bnited States /89 BS *( (156/); !orematsu " Bnited States /1/ $, 116 (1566); =ama?ris nan Sing " State o3 Mysore !I9 15?B F&s //A and !esa"a <yegar " State o3 Mysore !I9 155? F&s 1B. 37 ,ee E1ual 'rote#tion at C1BD. The ,G-! in Taw C eng !ong held that under3inclusi%eness was not fatal at CA1D; so long as the differentia went some distan#e towards achie%ing the purpose. pro%isions need not )e sea*less as it is legislati%el& i*practical. Hut it is su)*itted that if there were se"ere under%in#lusi"eness; the in7ustice *a es it difficult to argue a rational neJus. 38 Pre%iousl&; so long as the legislati%e purpose and the differentia coincide; the act would not fall foul of !rt311. This is unsatisfactor&. The court in EF, rightl& too the %iew that the courts 2cannot stand at the sidelines4; and too the %iew that the purpose of the legislation *ust pass the Cednesbury standard. ,ee C11/D N C11?D of EF,. 39 EF, at C110D N C1/BD. 40 EF, at C115D. 41 The 7urisdictions which ,ingapore often cites as persuasi%e authorit& ha%e repealed their eIui%alent ho*oseJualit& laws: !ustralia; -anada; 'ong (ong; the $(; $, and :ew Oealand. The onl& nota)le eJception is Fala&sia. 'owe%er; the Fala&sian

rele%ance@)asis is suspect<61 =hilst ,ingapore ought not to ta e co*parati%e 7urisprudence as #on#lusi"e owing to our autochthonous legal s&ste*6/; the& are persuasi%e. there should )e reasons to 7ustif& departure. !s "ap puts it; this law was introduced during colonial ,ingapore )ecause of si*ilarities with the $(. howe%er; e%en whilst $(; 'ong (ong and Gi)raltar ha%e now a)andoned this law; the ,G'- has a suspect )elief that ,ingapore+s 2histor&; geograph&; societ& and econo*&4 66 is now different enough fro* these 7urisdictions to 7ustif& retention. Pressingl&; what accounts for the di%ergence "is%a%"is the !sian state of 'ong (ong< ,econd; the fact that s/00! 2stood for decades465 is due to societal@legislati%e apath&; which is irrele"ant to constitutionalit&. Puentin # points out that the co**on law has 2for a long ti*e onl& proscri)ed *ale ho*oseJual conduct4 )ut it *ust li ewise )e pointed out that the co**on law has also for a long ti*e (now) allowed *ale ho*oseJual conduct6?. Third; Puentin # cited 7urisdictions
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to highlight 2shifts in the opposite direction4 )&

cri*inaliMing les)ian conduct6A; )ut ,ingapore rarely #onsiders cases fro* these 7urisdictions65; as #ompared to the 7urisdictions which repealed si*ilar laws.5B

sodo*& law; li e the Indian law; *ight pass *uster )ecause it prohi)its bot ho*oseJual and heteroseJual carnal intercourse. 42 Prof "ap runs a si*ilar argu*ent at C1?D of E1ual 'rote#tion. 43 This was rightl& and strenuousl& e*phasiMed )& the Indian ,upre*e -ourt in Sures !umar !ous al and $nor " +a6 7oundation and -rs (1B1/) at /B3/1. 44 EF, at C1//D. It is unclear what difference in histor&; geograph&; societ& and econo*& is there to 7ustif& the departure. or was it 7ust an oft3repeated tautolog&< 'ong (ong shares 2!sian %alues4. It is unclear how such *aterial differences in (particularl&) econo*&; histor& and geograph& co*e into the picture. 45 EF, at C115D. 46 The $( a)olished its eIui%alent pro%ision in 15?0. !lso; co**on law 7urisdictions which ,ingapore courts often cite as persuasi%e authorit& li e 'ong (ong; !ustralia; -anada; :ew Oealand and the $,! ha%e since repealed their sodo*& laws. 47 These 7urisdictions are: ,ri Ean a; ,udan; TanMania; "e*en and the ,olo*on Islands. 48 EF, at C1//D. 49 $nless the& are appeals the Pri%& -ouncil. This point was %alidl& raised )& Prof "ap in E1ual 'rote#tion at C1?D. 50 These are: !ustralia; -anada; 'ong (ong; the $(; $, and :ew Oealand. Fala&sia and India retain s/00. (India pre%iousl& ruled s/00 unconstitutional in :aM (1BB5); which was re%ersed on appeal to the ,upre*e -ourt).

Puentin #+s se#ond reason is that societ& holds deepl&3entrenched feelings on procreation and fa*il& lineage51. 'owe%er; retaining s/00! does not *ean that lifest&les of ,ingapore *ales will change; and procreation rate increases. The pra#ti#al e33e#t of s/00! is Iuestiona)le; especiall& when not enforced acti%el& for pri%ate acts. 51

(8)

T e ()/* purpose and narrow present%day "ariant (+arrow ,ariant) is

illegitimate ,ince the =ednes)ur& threshold is high5/; it is tougher to argue illegitimate purpose. The court in =omer " E"ans52 (=omer) held: 2a bareD desire to arm a politi#ally unpopular group cannot constitute a legitimate go%ern*ental interest455. If the 15/A reason were adopted; or the :arrow Lariant (ie; )anning only pu)lic acts); it *ight run an 2ine%ita)le inference that the disad%antage i*posed is )orn of ani*osit& toward the class Cho*oseJualsD4; ie; 2classification K underta en for its own sa e4.5? E%en if moral opprobrium were a purpose; #ustice O+-onnor held in Lawren#e " Texas50 (Lawren#e) that 2*oral disappro%al of a group cannot )e a legitimate go%ern*ental interest4 and that it will fail 2under an& standard4. 5A #ustice (enned& (in the *a7orit&) #ategori#ally said that such statute 2furthers no legitimate state interest455. #ustice
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EF, at C110D. Prof "ap runs a si*ilar argu*ent that while *an& ,ingaporean parents want their *ale children to get *arried and continue fa*il& lineage; 2this does not necessaril& *ean that the& would want to 7ail those who do not do so4. see C10D of E1ual 'rote#tion. 53 EF, at C11?D prescri)es this =ednes)ur& unreasona)leness standard; which is necessaril& %er& high. 54 =omer " E"ans 11? ,.-t.1?1B (155?). 55 =omer " E"ans 11? ,.-t.1?1B (155?) at 1?1A. 56 =omer " E"ans 11? ,.-t.1?1B (155?) at 1?15. 57 Lawren#e " Texas 5/5 $.,. ?5/ (1BB/). 58 ,ee Lawren#e " Texas 5/5 $.,. ?5/ (1BB/) at 16A?. 59 ,ee Lawren#e " Texas 5/5 $.,. ?5/ (1BB/) at 16A6.

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,calia+s dissent can )e criticised. the court was not asserting that the legislature #annot legislate against i**oralit&. The court was arguably onl& ruling against laws which cri*inalise 2i**oral4 acts substantially #onne#ted to an insular@ immutableE9 *inorit&. The legislature is 3ree to legislate against immoral a#tsE( which are connected to *uta)le; non3insular classesF not onl& *ight the populist opposition )e *ore %ehe*ent and undi%ided; the& *ight )e *edicall& treated. That *oral disappro%al alone was not a sufficient rationale under the EP- was echoed in :aM (1BB5).?1 ?/ ?6

(/) Practical purposes are legitimate If pra#ti#al purpose(s)?5 were adopted; the reason is legiti*ate but there *ight )e no rational neJus (as seen a)o%e). ??

". #hree-tiered scrutiny should $e adopted The a)o%e3applied one%si6e%3its%all =ednes)ur& standard?0 is not satisfactor&.

60 61

It will )e argued that ho*oseJuals are an i**uta)le class e%en though the ,G'- thought otherwise in TE' at C?/D and C?6D. #ustice ,calia cited : 2fornication; )iga*&; adulter&; adult incest; )estialit& and o)scenit&4. see Lawren#e at p 1655. 62 :aM (1BB5) at C05D appro%ed Lawren#e: 2=hile it could )e a 2co*pelling state interest4 to regulate )& law; the area for the protection of children and others incapa)le of gi%ing a %alid consent or the area of non3consensual seJ; the en3or#ement o3 publi# morality does not amount to a #ompelling state interest44. 63 :aM (1BB5) was o%er3ruled on appeal )& the ,upre*e -ourt in Sures !umar " +a6 7oundation (1B1/) )ut not on this point. The Indian pro%ision was uniIue )ecause it cri*inalises )oth heteroseJual and ho*oseJual acts which are considered carnal intercourse against the order of nature (eg; *ale3fe*ale cunnilingus or fellatio is considered to )e against s/00). !s such; the differentia i*posed (those who co**itted carnal intercourse; and those who did not) was not discri*inator& %is3>3%is ho*oseJuals as a #lass. It argua)l& de*onstrated oppro)riu* towards the #ondu#t co**itted )& heteroseJuals@ho*oseJuals; rather than the class (ie; ho*oseJuals); 7ust as an& state can legislate against pu)lic nudit&. 64 $ 3ortriori; not e%er&one agrees that ho*oseJualit& (or its conduct) is i**oral. It falls into the su)set of *orals where)& societ& is di%ided. The 15/A understanding of ho*oseJualit& and its *oralit& is o)%iousl& different fro* toda&. 65 !lternati%el&; the a)o%e reasons *ight )e )olstered )& these practical reasons. 66 O%er@under3inclusi%eness. 8or 'IL Protection; differentia *ight )e too far re*o%ed fro* purpose as there is no factual )asis. 67 The Cednesbury standard applies to )oth to the rational neJus co*ponent; and the legiti*ac& of purpose co*ponent.

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In the 7udicial re%iew (ad*inistrati%e action); acade*ics are concerned that the one%si6e% 3its%all =ednes)ur& standard is too high and infleJi)le. Thus; a cali)rated approach has de%eloped; "i6; the sliding3scale of Cednesbury unreasona)leness and proportionalit&. In 7udicial re%iew of ad*inistrati%e action and legislati%e acts; a conteJtual approach s ould be adopted. 8or 7udicial re%iew (ad*inistrati%e action); sliding3scale =ednes)ur& and@or

proportionalit& should )e adopted; instead of the archaic one%si6e%3its%all =ednes)ur&. ,i*ilarl&; for 7udicial re%iew (legislati%e acts); the su)7ect *atter should si*ilarl& influence the le%el of scrutin&; using the three3tier s&ste* or proportionalit&. ?A This #ontextual approa# was utilised in !orematsuE)N strict scrutin& is adopted when a 3undamental rig t is infringed; or when a suspe#t #lassi3i#ation is in%ol%ed. TE' (,G'-) refused to adopt this approach without citing reasons. 0B ! future ,G-! should consider the t ree%tier approa# . 8irst; this approach allows for re#on#iliation of the co*peting constitutional doctrines of the presu*ption of constitutionalit&01 and gi%ing full effect to funda*ental rights 01. !ccording stri#t s#rutiny for cases which faciall& in%ol%e funda*ental rights is consistent

68

!aron Ha er; 2Proportional; :ot ,trict; ,crutin&: !gainst a $, Q,uspect -lassifications+ Fodel under !rticle 16 E-'9 in the $(4 (1BBA) 5? !* # -o*p E A60 at A?A3AA1. 8or the sa e of )re%it&; and due to lac of case law; this will not )e discussed. 69 !orematsu " Bnited States /1/ $, 116 (1566). It was thought that tiered scrutin& de%eloped fro* footnote four in Bnited States " Carolene 'rodu#ts Company /B6 $, 166 (15/A). 70 It onl& said that for reasons of stare de#isis; it cannot. ,ee TE' at CA5D to C51D. 'owe%er; it did not gi%e reasons wh& ,ingapore should not adopt this approach )esides the fact that other 7urisdictions had different legal and eJtra3legal considerations. 71 ,ee 'ubli# 'rose#utor " Taw C eng !ong (155A) 1 ,E9 61B; where the ,G-! reiterated that the presu*ption of constitutionalit& applies. !lso see Lee !eng &uan " '' C150531500D ,E9 1/1 at 1/0. 72 ,ee -ng $ C uan " '' (15A1) 1 FE# ?6 where the Pri%& -ouncil held: 2their Eordships would gi%e to Part IL of the ,ingapore -onstitution Qa generous interpretation; a%oiding what has )een called Qthe austerit& of ta)ulated legalis*+; suita)le to gi%e to indi%iduals the full *easure of the Cfunda*ental li)ertiesD+4. This presu*ption was also followed in Indian ,upre*e -ourt decision of =am !ris na 4almia " Gusti#e Tendol?ar !I9 155A ,- 5/A; at 1/A and *ore recentl&; in the Indian ,upre*e -ourt case of Sures !umar !ous al and $nr " +a6 7oundation and -rs (1B1/) at C1?D.

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with courts )eing generall& inclined towards gi%ing full effect to the funda*ental rights enshrined in Part IL. ,econd; this represents an ad%ance in ,ingapore constitutional law. if ,ingapore law re*ains far )ehind (and perhaps; lagging )ehind changes in our socio3 political cli*ate); our 7udges *ight well find a dearth of respected foreign cases and acade*ic articles to rel& on. !dopting the three3tier approach allows for incre*ental de%elop*ent in ,ingapore; with useful $, cases as persuasi%e guidance; especiall& where our !rt311 co*es fro* the $, 8ourteenth !*end*ent. 0/ Third; this is in line with ,ingapore+s focus on *inorit& protection in our uniIue *ulticultural conteJt. 8ourth; to alla& fears of 7udicial o%er3reaching and case o%erload; courts can e*phasise that the threshold is still high.

%. Heightened scrutiny should $e a&arded In =omer; the court used rational3)asis re%iew. there was no need to use heightened scrutin&. Lawren#e (post3=omer) led to the stri ing down of TeJas sodo*& laws. The *a7orit& used the Gue Process clause0605 with intermediate (as su)seIuent courts interpret the case0?) )ut not strict scrutin&. if the statute were struc down using the eIual protection clause (2EP-4)00; sodo*& laws *ight )e constitutional if ho*oseJual and heteroseJual
73 74

Gurga Gas Hasu; Commentary on t e Constitution o3 <ndia (, - ,ar ar R ,ons (P) Etd; ?th Ed; 1505) at %ol H; p 1. The Gue Process -lause of the 8ourteenth !*end*ent to the $, 8ederal -onstitution; article 16; section 1 states that no 2,tate (shall) depri%e an& person of life; li)ert&; or propert&; without due process of law4. 75 'owe%er; the court thought that the EIual Protection -lause was a 2tena)le argu*ent4. Lawren#e " Texas 5/5 $, ?5/ (1BB/) at 16A1. 76 Lo3ton " Se#retary o3 t e 4epartment o3 C ildren H 7amily Ser"i#es /5A 8./d AB6 (11th -ir; 1BB6) interpreted Lawren#e as not using strict scrutin&. In Citt " 4epartment o3 t e $ir 7or#e 510 8./d AB? (5th -ir; 1BBA) the $nited ,tates -ourt of !ppeals for the :inth -ircuit thought that Lawren#e used inter*ediate scrutin&. 77 The EIual Protection -lause of the 8ourteenth !*end*ent to the $, 8ederal -onstitution; article 16; section 1 states that no 2,tate (shall) den& to an& person within its 7urisdiction the eIual protection of the laws4.

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conduct were disallowed. 0A #ustice O+-onnor used the EP- nonetheless; and ruled that it would fail 2under an& standard4.05 It can )e seen that e"en i3 heightened scrutin& were not adopted; the applicant *ight succeed under Cednesbury@ as eJplained. 'owe%er; recent $, cases ha%e pushed seJual orientation classifications to heightened scrutin&: Marriage Cases*9 in%ol%ed the -alifornia ,upre*e -ourt awarding strict scrutin&. CindsorA1 in%ol%ed a -ircuit -ourt (affir*ed on appeal) awarding inter*ediate scrutin&A1. the :inth -ircuit awarded inter*ediate scrutin& in Smit !lineA/; citing Cindsor. Filler (15A6)A6 (2Filler4) argues for heightened scrutin&. A5 =hilst s /00! is a)out ho*oseJual #ondu#t; it pra#ti#ally discri*inates against omosexuals as a #lass*E. whilst a heteroseJual has the # oi#e (and hence is deterra)le )& s/00!) whether to engage in ho*oseJual )eha%iorA0; a ho*oseJual al*ost ex#lusi"ely engages in ho*oseJual conduct.

78 79

Lawren#e " Texas 5/5 $.,. ?5/ (1BB/) at 16A1. Lawren#e " Texas 5/5 $.,. ?5/ (1BB/) at 16AA. 80 <n re Marriage Cases 1A/ P./d /A6 (1BBA). 81 Cindsor " Bnited States ?55 8./d 1?5 (1nd -ir; 1B11). 82 This was affir*ed on appeal in Bnited States " Cindsor 50B $, 11 (1B1/). the ,upre*e -ourt did not %erif& the le%el of scrutin& to )e applied. 83 Smit !line >ee# am Corporation (&S!) " $bbott Laboratories 029 7./d 20( (5th -ir; 1B16). 84 'arris F Filler II; 2!n argu*ent for the !pplication of EIual Protection 'eightened ,crutin& to -lassifications Hased on 'o*oseJualit&4 (15A5) 50 , -alif E 9e% 050. 85 Filler wrote his 15A5 article )efore =omer(155?) and Lawren#e (1BB/)@ and thus did not ha%e the )enefit of these cases. 86 #ustice O+-onnor rightl& notes this of the TeJas3eIui%alent; at 16A? of Lawren#e: 2=hilst K applies onl& to conduct; the conduct targetedK is conduct that is #losely #orrelated with )eing ho*oseJual... targeted at *ore than conduct. It is instead directed toward ga& persons as a class4. 87 ,o*e heteroseJuals would ha%e had ho*oseJual eJperiences. The (inse& scale understands ho*oseJualit& and heteroseJualit& as a spectru*. This conduct could )e deterred; and is pro)a)l& not i**uta)le. 'eteroseJuals argua)l& ha%e the choice not to engage in ho*oseJual conduct; )ut instead engage in *ore traditional for*s of seJual relationships (if the& wanted to). Thus; the& are not the focus of the argu*ent. Comparati"ely; the ho*oseJuals would argua)l& for* an i**uta)le and insular class; and would li el& parta e in ho*oseJual conduct; though not all ho*oseJuals would )e seJuall& acti%e.

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Filler argues that ho*oseJualit& fits the -ourt+s criteriaAA; which *ust )e read together. no criteria in itsel3 suffices.

(() <mmutability Heing i**uta)le; ho*oseJualit& is acIuired at )irth (through genetic predisposition and@or prenatal hor*onal i*)alances); %ia en%iron*ental@social influences or (li el&) a co*)inationA5. 'o*oseJualit& is difficult or i*possi)le to change (it need not )e stri#tly un# angeable; 7ust a #ore trait that one cannot or should not )e forced to a)andon 5B); and upon #rystallisation; re*ains 2sta)le throughout life4.51 It should not *atter if ho*oseJualit& is in)orn; contrar& to the o%er3restricti%e 7udicial definition adopted in TE'51
5/

. ! characteristic which de%elops wit out #ons#ious adult # oi#e; and with

genetic or pre3natal hor*onal influence56; should )e i**uta)le. e%en if part3nurture; it is not #ons#ious adult # oi#e. -ruciall&; it accords with the twin3rationale )ehind

i**uta)ilit&. 8irst; it should only be 3air if legal )urdens are i*posed when there is indi%idual responsi)ilit&. 'o*oseJualit& is not a choice. ,econd; i**uta)ilit& pre%ents
88

Filler identifies the four criteria used )& -ourts rele%ant to esta)lishing heightened scrutin& as: 'istor& of discri*ination; i**uta)ilit&; discrete group; politicall& powerless *inorit&. ,ee Miller at 5. 89 -. Tripp; T e Homosexual Matrix (FcGraw3'ill Hoo -o*pan&; 1505) at p A5. 90 Hernande6%Montiel " <.+.S. 115 8./d 1BA6; 1B5/ (5th -ir; 1BBB); T omas " &on6ales 6B5 8./d 1100 (5th -ir; 1BB5): 2C,DeJual orientation and seJual identit& are i**uta)le. the& are so funda*ental to one+s identit& that a person should not )e reIuired to a)andon the*4. !lso; Cat?ins " BS $rmy A05 8.1d ?55; 01? (5th -ir; 15A5): 2it is clear that )& Qi**uta)ilit&+ the C,upre*eD -ourt has ne%er *eant strict i**uta)ilit& in the sense that *e*)ers of the class *ust )e ph&sicall& una)le to change or *as the trait defining their classK the ,upre*e -ourt is willing to treat a trait as e33e#ti"ely immutable if changing it would in%ol%e great difficult&; such as reIuiring a *a7or ph&sical change or a trau*atic change of identit&4 per :orris # (concurring 7udg*ent). !lso see Lawren#e at 16A1 3 16A/; showing cognisance that intimate p ysi#al relations ip # oi#es concern hu*an freedo*. seJual orientation is so funda*ental that one should not # oose )etween sexual orientation and oneIs indi"idual rig ts. 91 #. Fone& R !. Ehrhardt; Man H Coman@ >oy H &irl (#ason !ronson;Inc.;1501) at p 1AA. 92 ,ee TE' at C6/D. 7udicial definition in 7ronterio " =#i ardson 611 $, ?00 (150/) $, ,upre*e -ourt at ?A?. 93 This was in the #ontext of deciding whether s/00! is absurd; )ased on funda*ental rules of natural 7ustice; which enco*passed protection against absurd or arbitrary laws as held in Aong ,ui !ong " '' (1B1B) / ,E9 6A5. 94 The (inse& Institute stud& argues seJual orientation cannot )e eJplained purely on a social@ps&chological )asis: !. Hell; F. =ein)erg R , 'a**ers*ith; Sexual 're3eren#e@ <ts 4e"elopment in Men and Comen (Indiana $ni%ersit& Press; 15A1) at p /.

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the legislator who lac s such characteristic fro* )eco*ing a class *e*)er; and thus #annot e*pathise #ompletely with the class.55 8urther*ore; the $, 8ederal -ourt has held that ho*oseJualit& is i**uta)le5?. Parentheticall&; i**uta)ilit& is not ne#essary to esta)lish suspect@Iuasi3suspect classification.50

(8) <n#orre#t stereotypes)* Filler contends that ho*oseJuals ha%e )een incorrectl& stereot&ped as pied pipers; child *olesters; and *entall&3ill persons.

(/) History o3 4is#rimination 'istorical discri*ination eJplains wh& -ourts accord *ale3)iased classifications heightened scrutin& (#3; old age and wealth).55 This histor& *ust )e unwarranted.

cri*inals face discri*ination )ut this *ight )e 7ustified for puniti%e@safet& reasons. There is no factual 7ustification for ho*oseJual discri*ination; or stereot&ping. Filler su)*itted that ho*oseJuals are su)7ected to ho*opho)ia and incorrect stereot&ping; at ti*es reaching 2h&sterical proportions4.1BB This *ust )e correct in ,ingapore.

95 96

This can )e seen in the *a7orit& of the opinions aired during the 1BB0 Parlia*entar& Ge)ates. -berge3ell " Cymyslo 8.,upp.1d; 1B1/ =E ?01??AA ,.G.Ohio (1B1/) at C1AD; citing Hernande6JMontiel " <.+.S.@ 115 8./d 1BA6; 1B5/ (5th -ir; 1BBB): 2C,DeJual orientation and seJual identit& are i**uta)le. the& are so funda*ental to oneSs identit& that a person should not )e reIuired to a)andon the*4. This holding of i**uta)ilit& was for esta)lishing heightened scrutin&. 97 'lyler " 4oe 650 $, 1B1 at 165 per Hurger -# (dissenting). 98 2Incorrect4 stereot&pes would ha%e no or limited 3a#tual basis such that substantial #ounter%examples can or ha%e )een pro%ided. ,tereot&pes *a& not )e totall& incorrect. 99 Filler at A1/. 100 Filler at A15.

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(2) 'oliti#ally powerless minority Filler argues that ho*oseJuals are a politicall& powerless *inorit&; due to stereot&pes and ho*opho)ia.1B1 Politicians; war& of )eing seen as endorsing ho*oseJualit&; eschew pro3ho*oseJual agenda; fearing conser%ati%e *a7oritarian pressures. E"en ho*oseJual politicians refuse to ad%ocate for the ho*oseJualit& cause. :ot onl& are ho*oseJuals legislati%el& under3represented; their #ause is also grossly under%represented )& non3 ho*oseJuals and omosexuals t emsel"es.

(5) +ormati"e ;usti3i#ations Filler also puts forth nor*ati%e 7ustifications.

(a) Process Theor& The process 7ustification in%ol%es the non3political 7udiciar& ser%ing as a counter3 *a7oritarian chec ; to pre%ent t&rann& of the *a7orit&. 1B1 One function of !rt311 is argua)l& to pre%ent *inorit& oppression; where there is a lacuna in political processes. Filler argues that eIual citiMenship principle pre%ents the go%ern*ent fro* treating a ho*oseJual as if he )elongs to an underclass; without factual )asis N societ& should treat indi%iduals respecta)l& and inclusi%el&.1B/ Filler further argues that 2seJual orientation is *orall& irrele%ant and should not )e the )asis for legal discri*ination4.1B6 This was echoed in Lawren#e(95 : a class cannot )e
101 102

Filler at A1?. Filler at A1ANA15. 103 Filler at A15. 104 Filler at A/B. 105 Lawren#e " Texas 5/5 $, ?5/ (1BB/) at 16A0; per #ustice O+-onnor.

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singled out for punish*ent 2with *oral disappro%al as the only asserted state interestK ! legislati%e classification that Ccreates an underclassD cannot )e reconciled with the CEP-D.41B? It is unclear how ho*oseJualit& or ho*oseJual conduct is i**oral 2for eIual protection purposes4.1B0 Process theorists li e El& ha%e agreed that ho*oseJuals *eet the criteria; )eing su)7ect to 2first3 degree pre7udice4 and 2we3the& stereot&ping4 leading to inefficient political processes.1BA

()) Instru*ental 9ationalit& $nder this theor&; the legislati%e purpose is accepted )ut the *eans are scrutinised. It proposes; firstl&; that the least3intrusi%e *eans should further the end. ,econdl&; *edical ad%ance*ents *a& *ean that the *eans no longer further such ends. 1B5 If the purpose of s/00! is to show *oral oppro)riu*; then the *eans (cri*inal sanction) *ight )e too harsh; especiall& since ho*oseJualit& is i**uta)le and (thus) non3 deterra)le.11B The 15/A purpose was in light of the *anifest lac of understanding of ho*oseJualit& in15/A. with de%elop*ents in *edical understanding; the *eans should )e re3considered. E%en if the purpose were to 2ser%e state interests of *aintaining *oralit&; decenc&; the welfare of societ&; and procreation4; Filler argues that it would )e

106 107

The ,upre*e -ourt in Lawren#e was citing 'lyler " 4oe 650 $, 1B1 ,.-t. 1/A1 at 1/5 (Powell #; concurring). Filler at A/B. 108 #. El&; 4emo#ra#y and 4istrust ('ar%ard $ni%ersit& Press; 15AB) at pp 1?131?6; and pp 155315?. 109 Filler at A/5. 110 Of course; ho*oseJual conduct )& heteroseJuals or e%en )iseJuals would argua)l& )e possi)le to deter; )ut there *ight not )e a siMea)le nu*)er of such cases.

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2*arginall& inefficient as a *eans to those ends; and are also )oth greatl& o%erinclusi%e and underinclusi%e4.111

(c) Pu)lic Lalues Theor& The EP- argua)l& for)ids unprin#ipled distri)ution of resources@opportunities.111 'o*oseJualit&3)ased discri*inations in%ol%e unprin#ipled distributions )ecause the& do not ser"e any publi# "alue (eg; a h&pothetical law which re*o%es ho*oseJual doctors ser%es no pu)lic %alue); )ut are merely due to intrinsi# bias((/.

2* A##l+in) t!ree,tiered s rutin+ to s3''A =hilst s/00! *ight )e ruled unconstitutional wit out heightened scrutin& (eg; Lawren#e); heightened scrutin& gi%es a stronger case. ,ince ho*oseJualit&@ho*oseJual conduct is not a Part IL funda*ental right; it should not )e su)7ect to strict scrutin&. inter*ediate scrutin&116 is appropriate. In *ini*al scrutin&; the court can use 2an& concei%a)le state goals4 to draw a rational neJus to the differentia. (ie; the court should not )e li*ited to the arti#ulated legislati%e purpose115). 8urther; there is presu*ed constitutionalit&. This *ini*al scrutin& standard is %er& applicant3unfriendl&.
111 112

Filler at A//3A/6. ,ustein; 2Pu)lic Lalues; Pri%ate Interests; and the EIual Protection -lause4 15A1 ,up;-t.9e% at 11A and 1?5. 113 Filler at A/6. 114 =eed " =eed 6B6 $.,. 01 (1501) showed 7udicial unhappiness with a two3tiered s&ste*; de%eloping inter*ediate scrutin&. ,ee Hice; 2,tandards of #udicial 9e%iew $nder the EIual Protection and Gue Process -lauses4; 5B ,.-al.E.9e%.?A5 (1500). 115 !s eJplained earlier; in ,ingapore; it see*s the court constrains itself to legislati%e purpose ( ie; appl&ing the principles of statutor& interpretation).

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-o*parati%el&; under inter*ediate scrutin&11?; the court loo s at onl& arti#ulated purpose.110 Thus; argua)l&; the court cannot rel& on present3da& purpose and is

#onstrained to the 15/A purpose which does not sit well with #ustice O+-onnor+s %iews in Lawren#e. !lso; insofar as *oral disappro%al is an incidental 15/A purpose; it is not legiti*ate purpose. 11A 8urther; )oth rational connection and legiti*ac& of purpose will )e scrutiniMed thoroughl&. the Iuestion )eco*es whether the classification ser%es important go"ernmental purposes and there is substantial nexus )etween differentia and purpose115. E%en if the test allows loo ing outside articulated purpose; it will )e difficult to de*onstrate substantial neJus )etween the practical purposes and the ho*oseJualit& differentia; and it has to )e shown the purpose was important.

II* 3R%4 and Art,. 8uture applicants are unli?ely to su##eed under the ne)ulous 89:# i*ported into !rt35.11B 8irst; whilst incre*entalis* will alle%iate the ne)ulosit&; 89:# argua)l& for)ids onl& wanton in7ustices. Aong ,ui !ong(8( elucidated that absurdKor arbitrary laws and legislati"e ;udgments111 flout 89:#. s/00! is not such a case. 9ightl& non3eJhausti%e 11/;
116 117

This applies to 2Iuasi3suspect4 differentia. E. Tri)e; 2!*erican -onstitutional Eaw4 (8oundation Press; 150A) at pp 1BA/31BA6. 118 Lawren#e (supra) at 16A5: 22)are K desire to har* a politicall& unpopular group4 are not legiti*ate state interests4. !lso see Lawren#e (supra) at 16A?: 2*oral disappro%al of a group cannot )e a legiti*ate go%ern*ental interestK )ecause legal classifications *ust not )e 2drawn for the purpose of disad%antaging the group )urdened )& the law44. :ota)l&; 'IL pre%ention cannot ha%e )een a reason in 15/A as 'IL was ineJistent. 119 This was the test as fra*ed in Craig " >oren 50 ,.-t.651 (150?) at 650 per #ustice Hrennan (*a7orit&). 120 -ng $ C uan " '' (1505315AB) ,E9(9) 01B at C1?D; affir*ed in +guyen Tuong ,an " 'ubli# 'rose#utor (1BB5) 1 ,E9 1B/ and Aong ,ui !ong ". 'ubli# 'rose#utor (1B1B) ,G-! 1B. The 'igh -ourt in TE' at C1AD; Iuoting ! # 'arding; 2:atural #ustice and the -onstitution4 (15A1) 1/ Fal E 9e% 11? at 1/5; refused to i*port the 89:# into !rt311 as it would )e superfluous. 121 Aong ,ui !ong " '' (1B1B) / ,E9 6A5 at C1?D. 122 !n eJa*ple gi%en was 4on Go n 7ran#is 4ouglas Liyanage " T e :ueen (15?0) 1 !- 155 at 151. 123 Haw Tua Taw " '' C15A1D !- 1/? (,GP-) at C5D. !lso; then -# -han ,e (eong opined that this ga%e the courts a free hand; unencu*)ered )& precedents; in -han ,e (eong; 29ethin ing the -ri*inal #ustice ,&ste* of ,ingapore for the 11 st -entur&4 in T e Singapore Con3eren#e: Leading t e Law and Lawyers into t e +ew Millennium L 8989 (1BBB; Hutterworths); footnote /5.

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the& should )e a last%resort sa3eguard. ,econd; our constitutional law should instead focus on a substanti"e 3ramewor? li e !rt311. Third; reading 89:# too eJpansi%el& is 7udicial self3aggrandise*ent.116 8ourth; there is dire lac of precedence and co*parati%e 7urisprudence on 89:# co*pared to !rt311. !s long as s/00! is 2law4115; life11? and li)ert&110can )e depri%ed (specificall&; incarceration is per*itted). If s/00! %iolates !rt311; then it is not 2law4; and will also %iolate !rt35. The ,G-! is li el& to eschew substanti"e due pro#ess (2,GP4)11A. ,GP is not Fala&sian law115; and has *an& critics. T us; e%en if life4 includes pri%ac&; since s/00! is law (it does not flout 89:# 1/B); the right can )e curtailed. whether there was a co*pelling or legiti*ate interest is irrele%ant as there is no ,GP.
124

It *ust )e re*e*)ered that these funda*ental rules of natural 7ustice were (itself) a 7udicial for*ulation; Thus; 7udges hearing such cases *ight (rightl&) show 7udicial restraint. 125 2Eaw4 does not in#lude custo*ar& international law; as pointed out in Aong ,ui !ong " '' (1B1B) / ,E9 6A5 at CA5D3C51D. E"en i3 law included custo*ar& international law; it is difficult to contend that sodo*& laws are against custo*ar& international law e%en if one were to use a Iuantitati%e anal&sis (of the nu*)er of countries that a)olished %ersus retained sodo*& laws) as in +guyen Tuong ,an " 'ubli# 'rose#utor C1BB5D 1 ,E9 1B/ at C51D; where the court anal&sed the nu*)er of countries that retained %ersus a)olished the death penalt&; )ecause *an& states still had sodo*& laws. 126 2Eife4 in !rt35 has not )een interpreted in ,ingapore; e%en though the ,G-! in Aong ,ui !ong " '' (1B1B) / ,E9 6A5 at CA6D called it the *ost )asic of hu*an rights. In ,ingapore; at t e "ery least; life in%ol%es )are ani*al eJistence. -o*parati%el&; other 7urisdictions ha%e interpreted 2life4 )roadl&. In the $, ,upre*e -ourt case of Munn " <llinois 56 $, 1// (1A00)@ it was recognised that life in#ludes more than )are eJistence; )ut includes en7o&*ent of life. In India; life was read to *ean the right to health; right to li%elihood; right to clean en%iron*ent; right to dignit&; etc. such that it *eans *ore than )are eJistence. 127 Lo 'ui Sang " Mamata !apilde" 4a"e (1BBA) 6 ,E9(9) 056 ('-) interpreted 2li)ert&4 narrowl& to include *erel& freedo* fro* unlawful incarceration or detention. the ,G'- held that this was all along the understanding of this ter*. Hut unfortunatel& no case was cited. Comparati"ely; in the $, ,upre*e -ourt decision in $llgeyer " Louisiana 1?5 $, 50A (1A50); li)ert& has )een read widel& to include the right to freel& en7o& his faculties lawfull&; eg; li%e and wor ; enter into contracts; and pursue his li%elihood. ,i*ilarl&; Meyer " +ebras?a (151/) 1?1 $, /5B had the ,upre*e -ourt propounding that li)ert& in%ol%ed the right to contract; engaging in occupations; education; *arr&; esta)lish a fa*il& unit; religion; as long as done orderl&. In Fala&sia; the 8ederal -ourt in Lee !wan Co " 'ubli# 'rose#utor (1BB5) 5 FE# /B1 also propounded a generous interpretation. 128 The court in Aong ,ui !ong " '' (1B1B) / ,E9 6A5 at CABD was unwilling to consider whether pro#edural laws were 3air@ ;ust and reasonable as in Mit u " State o3 'un;ab !I9 15A/ ,- 60/; )ut onl& whether the procedures accorded with 89:# as in -ng $ C uan " '' (1505315AB) ,E9(9) 01B. The court cited fears of intruding into legislati%e do*ain. $ 3ortiori; it is su)*itted that the court would )e unwilling to engage in substanti"e due process in !rt35. 129 'ubli# 'rose#utor " 4atu? Harun bin Ha;i <dris C150?D 1 FE# 11? ('igh -ourt; (uala Eu*pur); $ttorney%&eneral " C iow T iam &uan C15A/D 1 FE# 51 ('igh -ourt; (uala Eu*pur); 'ubli# 'rose#utor " Lau !ee Hoo C15A/D 1 FE# 150 (8ederal -ourt; Fala&sia); 'ubli# 'rose#utor " Aee !im Seng C15A/D 1 FE# 151 ('igh -ourt; Ipoh) and C e $ni bim <tam " 'ubli# 'rose#utor C15A6D 1 FE# 11/ (8ederal -ourt; Fala&sia). The Indian ,upre*e -ourt in Sures !umar !ous al and $nor " +a6 7oundation and -rs (1B1/) at C65D expli#itly recognises su)stanti%e due process despite the different wording %is3>3%is the $, -onstitution. 130 If natural and i**uta)le were read widely (as suggested a)o%e) than in TE' then s/00! *ight )e a)surd and against 89:#.

1B

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III* Con lusion The ,G'- see*ed undul& concerned o%er *a7oritarian *oralities. Foralities should not )e a legiti*ate legislati%e o)7ect 1/1. The court should perfor* its constitutional role as an independent counter3*a7oritarian chec against *inorit&

oppression; upholding funda*ental rights; e%en though change *ight )e ahead of ti*e. Insofar as funda*ental rights are infringed; it is un7ust to wait until political processes are efficient enough; and@or *oralities change enough.

131

Insofar as the& i*pinge on the funda*ental rights of an insular and i**uta)le *inorit& (as argued earlier) and there is no (other) o%erriding 7ustification li e; eg; 'IL pre%ention. It is su)*itted that if cri*inalising ho*oseJual gross indecenc& reduces 'IL infections; s/00! *ight )e 7ustifia)le.

11