In April 2012, the High Court of Singapore ruled against a Singaporean couple who had challenged the legality of Article 377(A) of the Singaporean penal code, which criminalises homosexual sex.
The couple argued that this article is in direct contradiction with the equality rights enshrined in the Singaporean constitution. The judges justified their position on the basis of their inability to rule on moral issues – “…defining moral issues needs time to evolve and is best left to the legislature to resolve.” Despite this setback, the couple has decided to persist with their effort to repeal the article through legal mechanisms.
The result of this legal challenge reveals two important conclusions that ought to be examined: the relations between the judiciary and the legislature, and the state of the LGBT movement in Singapore.
One important reason why the LGBT challenge was perhaps doomed to fail even before the legal process was initiated is the movement’s failure to understand the ambiguous nature of Singapore’s political system. This ambiguity arises from two issues: a subscription to the norms of the Westminster political system, and the existence of a constitution. Under a Westminster political system, parliament has sole authority – sovereignty – over the creation and abrogation of laws. This means that parliament is sovereign – it is the dominating institution within a political system which also consists of an executive and a judiciary. In order for parliamentary sovereignty to function, there cannot be any direct mechanisms aimed at restricting the scope and dimensions of parliament’s ability to legislate. In the United Kingdom – from which Singapore’s political system is inherited – there is no formalised and substantive mechanism to restrict Parliament’s sovereignty.
The second ambiguity arises from the fact that Singapore, unlike the United Kingdom, has a constitution. A constitution is a body of laws that occupies the highest position in the hierarchy of norms. This implies that all other laws including those passed by parliament have to respect and comply with the constitution. A logical extension of such an implication is the possibility of repealing laws passed by parliament through judicial mechanisms since the judiciary governs the compliance of all laws to the constitution. The existence of a constitution therefore implies a contradiction to the principles of parliamentary sovereignty. Hence, de jure, Singapore is not a Westminster political system but closer to that of an état de droit where the rule of law is exercised. A separation of power is hence supposed to exist where the judiciary, de jure, can check on the powers of the legislature.
Yet in order for an état de droit to function, two conditions must also exist – judicial independence and judicial activism.
In terms of judicial independence, there exists in Singapore a perception that the judiciary is more inclined towards the interests of the executive and the legislative when pitted against the interest of others in legal challenges. Such a perception creates two effects. Firstly it creates a drop in confidence in the judiciary. Secondly, this results in Singaporeans perceiving legal challenges through the judiciary as a poor means of effecting change.
The failure to appreciate the judiciary as a means of effecting change given its position within the political system has an important impact on judicial activism. Because legal challenges are generally avoided, in particular on issues that are sensitive and with a balance that can tip either way, the judiciary is denied opportunities to assert its independence and its role within the political system. Because examination of all laws before they are passed is not compulsory, the judiciary thus has to be engaged to act – the filing of legal challenges. Thus, the courts are prevented from taking on a judicially active disposition. This then breeds a judiciary that is unable to fully appreciate its position, powers, and confidence within the political system and vis-à-vis other political institutions. This creates a cycle of judicial passivism.
The perceived absence of judicial independence and the real absence of judicial activism prevent the functioning of an état de droit. When the judiciary is finally pushed to act such as through the legal challenge against Article 377(A), it opts for general judicial passivism, reflected in its intent to leave the resolution of the matter to the legislature even though there are concrete legal grounds for the judiciary to act. De jure, Singapore is an état de droit. De facto, Singapore is closer to that of a Westminster style where parliament exercises a dominant power relationship vis-à-vis other institutions, approaching that of parliamentary sovereignty.
This ambiguity is perhaps one of the main reasons why the Singaporean LGBT movement believes that a legal challenge can repeal Article 377(A). This belief arises from a failure to understand the realities of Singapore’s political system beyond its de jure configuration. A second legal challenge may perhaps be an overly optimistic calculation on the part of the LGBT movement since a similar conclusion would probably result.
What then should the LGBT movement do to advance its interests? Given the dominance of the legislature over other institutions, the LGBT movement ought to focus its attention on parliament. The challenge of the LGBT movement in Singapore is to project its concerns beyond the perimeters of a subculture. The movement needs to integrate its interests into broader mainstream culture in order to engage the major political parties. The failure of almost all major political parties in Singapore other than the Singapore Democratic Party to address LGBT needs reflects the priorities of the mainstream. Given a scarcity of resources, political parties are expected to prioritise and select certain interests over others. This is evident in the differing responses of political parties to the issues of the Population White Paper, which delves into the problem of immigration, demographics and economy, and to the recent LGBT legal challenge. If the LGBT movement seeks to advance its interests, it must not only integrate such interests into mainstream political discourse, but also create a prioritisation for such interests above other concerns within the discourse.
