From gay rights to the rights of all Singaporeans

Tan Eng Hong v AG (2012) SGCA 45 is a case of immense significance and students of Constitutional Law will no doubt be referred to this case on the interpretation of Article 4 of our Constitution. 

As much as there has been much talk about the 'victory' for the gay community in getting past the first hurdle in this attempt to have s.377A of the Penal Code declared void,  the fact is that this Court of Appeal decision has already become a landmark in relation to Article 4.  Whether the proceedings eventually lead to a declaration that s.377A is void or not, is something that we will have to wait and see. 

The Article 4 issue

Interestingly, the specific issue of whether Art 4 can be relied on was not raised at the High Court and the AG raised this argument only on appeal at the Court of Appeal.  So, thanks to the AG's Chambers we now have an authoritative pronouncement on the application of Article 4. 

What does Article 4 say?

Article 4
This Constitution is the supreme law of the Republic of Singapore and any law enacted by the Legislature after the commencement of this Constitution which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void. 


The gist of the AG's argument was that if a legislation enacted after 1965 were to be inconsistent with the Constitution, then that unconstitutional legislation can be declared to be void.  But, where the offending legislation was already in existence before 1965, then Article 4 cannot be used to render the legislation void.   Section 377A of the Penal Code is a colonial invention and if the AG's argument was accepted, then all pre-independance laws will be immune from Constitutional challenge. 

The Court of Appeal rejected this argument and upheld the principle of the Supremacy of the Constitution:

"The supremacy of the Constitution is necessary for the purposes of the Constitution to be protected as it ensures that the institutions created by the Constitution are governed by the rule of law, and that the fundamental liberties under the Constitution are guaranteed. Therefore, we find that the supremacy of the Constitution cannot be dependent on when a law was enacted: constitutional supremacy must apply equally both to laws which pre-date and laws which post-date the enactment of the Constitution "

A very literal reading of Article 4 of the Constitution would have led the Court of Appeal to a very different decision and the AG might have succeeded it immunising much of our laws from Cosntitutional control.  Given that there has been no previous case in Singapore on this issue, the Court of Appeal surveyed several Malaysian cases (not entirely consistent decisions) and arrived at the conclusion that Art 4 applied to both pre-independance and post-independance laws.  In the words of the Court:

"We thus find that the mere accident of vintage should not place an unconstitutional law which pre-dates the Constitution beyond the potency of Art 4"

Let us not underestimate the significance of what has happened.  Gay men may not have gained a victory yet.  Singaporeans, in general, definitely have. 

(I have simplified the analysis of the Court in an attempt to highlight the significance of the case.)

Pink Dot and the Penal Code

Whenever the Pink Dot event comes up or whenever the discussion of s.377A of our Penal Code arises (consensual sexual acts between men), I can't help but cast my eye on the other sexual offences in our Penal Code.  I can't help but feel that there is a certain 'moral' (using the word 'moral' in a loose 'state-citizen relationship' sense rather than in a traditional or 'religious' sense) inconsistency in the state's position. 

The primary objective of giving power to the state to criminalise human conduct is to maintain order in society.  There is an assumption that where an individual might cause harm to another, there is an inherent possibility of society disorder if there is no mechanism for the control of such behaviour through the machinery of the state.  Criminal laws serve the function of controling such harmful behaviour. 

S.377A of the Penal Code criminalises consensual sexual relations between 2 men even though no harm may be caused by one to the other. 

s.375 of the Penal Code exempts a man from liability where he has raped his wife.  Here, there is harm caused by an individual to another.  But, the state stands aside and exempts the offending individual from liability. 

I know that the debate over homosexual intercourse and marital rape has been clouded by too many arguments about traditional 'morality', religious perceptions and notions of the so-called traditional marital relations.  But, we are not talking about issues pertaining to morally acceptable behaviour when we deal with criminal offences.  We should be dealing with how the state should go about its job in maintining order.  If we acknowledge that the primary objective of criminal law is to prevent individuals from acting in a manner that would cause harm to others, then s.377A and s.375 are completely at odds with that primary objective.

John Stuart Mill in his essay, On Liberty, propounds on the 'harm' principle:
http://www.utilitarianism.com/ol/one.html

That principle is, that the sole end for which mankind are warranted, individually or collectively in interfering with the liberty of action of any of their number, is self-protection.   That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil, in case he do otherwise. To justify that, the conduct from which it is desired to deter him must be calculated to produce evil to some one else. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

Punishment must fit the crime

The issue of whether punishment fits the crime has been the flavour of the week for me with two previous posts dealing with the question of corporal punishment for vandalism.

Hot on the heels of that we have Dr Woffles Wu being fined $1000 for abetting in providing misleading information to the police in relation to a traffic offence. The facts as reported in the newspapers seem to suggest that after Woffles Wu had commited speeding offences, his elderly employee had admitted to the commission of the offences.

When I first read that I assumed that Dr Wu would have been charged under the Penal Code. The obvious provision that I had in mind was s.182 of the Penal Code.

False information, with intent to cause a public servant to use his lawful power to the injury of another person

182. Whoever gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant to use the lawful power of such public servant to the injury or annoyance of any person, or to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him, shall be punished with imprisonment for a term which may extend to one year, or with fine which may extend to $5,000, or with both.

The other likely provision was s.204A of the PEnal Code:

204A. Whoever intentionally obstructs, prevents, perverts or defeats the course of justice shall be punished with imprisonment for a term which may extend to 7 years, or with fine, or with both.

Giving false information to the police (and to some extent obstructing the course of justice) is ordinarily treated by the judiciary as being rather serious and in the past custodial sentences have been given for such offences. I was understandably surprised (and so were other friends of mine in the legal profession) that Woffles Wu did not get a custodial sentence.

I assumed that the mitigation plea by the counsel must have been really good. Of course, plenty of speculation arose as to whether he was treated leniently because of the fact that he was a well connected person. One blogger came up with a catchy line.... "In the land of the saggy, the man with the botox syringe is king." See: http://everythingalsocomplain.com/2012/06/13/woffles-wu-lying-to-the-police/
One PAP MP, Hri Kumar, joined in the fray by lamenting the inconsistency in our sentencing regime. I am very glad that he did. We seriously need to look at our criminal laws as a whole come up with a coherent approach to sentencing. In those areas where judges are given discretion, we need a clear and transparent sentencing policy for the courts.
http://hri-kumar.blogspot.sg/2012/06/crime-and-punishment.html

Something was not quite right with the sentence and I couldn't bring myself to believe that the court would have let Woffles Wu off so easily given existing sentencing precedent for similar offences. Charlie Lim Chau Lee was sentenced to imprisonment for 6 months for getting his friends to take the rap for a traffic offence committed by him. The difference in the sentencing is too stark to be dismissed as merely difference based on the facts of the individual cases.

The inevitable perception building up amongst the public is that the rich and the elite can get away with lighter punishment when compared to ordinary citizens. This is the general trend of commentary emerging on blogosphere right now. Up till this morning, I was having some difficulty reconciling the picture that was building up. I can't imagine that our judiciary will act so inconsistently that Woffles Wu could get away with a fine.

Finally, it dawned on me when I read the AG's Chamber's press statement as well as the Law Minister's comments that Woffles Wu was charged under S.81 of the Road Traffic Act and not the Penal Code. http://www.todayonline.com/Singapore/EDC120617-0000020/Law-Minister-explains-Woffles-Wu-sentencing

http://www.agc.gov.sg/documents/AGCPressRelease17Jun2012.pdf


So, it turns out that this is a case of prosecutorial discretion as opposed to judicial leniency. AGC explains in the press statement the reason for not charging Woffles Wu under s.204A. The provision was not enacted at the time that the offence had been committed. That is a valid legal position. But, of course, I can't help but wonder why he was not charged under s.182 of the Penal Code. That was, to me, the most obvious provision for an offence such as this.

The AGC in its press release has given its reason for not proceeding under s.182:

"The charge preferred against an accused person would be calibrated to reflect the seriousness of the criminal act and the fact situation, and whether the legislation in question provides a specific provision dealing with the criminal act or whether reliance has to be placed on general legislation such as the Penal Code. On the facts of this case, as there was no major accident or injury, it was considered appropriate to proceed under s 81(3) of the Road Traffic Act rather than invoke the general provisions of the Penal Code, such as s 182."

Firstly, I accept the AGC's position on s.204A. But, I find it hard to accept the position taken in relation to s.182. I am not convinced that the lack of injury should have been considered. The gravamen of the offence involving giving of false information is the falsity of the information and deliberately misleading public officials in their administration of justice. False information could have been given in relation to a littering offence. That does not detract from the seriousness of the fact that false information was given in the first place. The fact that there was no injury involved should not have been decisive in the decision not to prosecute under s.182 of the Penal Code.

I am pretty sure that if the charge was under s.182, the judge would have imposed a custodial sentence. I will cut some slack to the prosecution here though. Making a decision as to the offence to be charged is not an easy one and it is inevitable that tough decisions have to be made. It is unfortunate that the prosecution chose to charge Woffles Wu under the Road Traffic Act as it has sent a very wrong signal to the public. Too many people are now under the impression that the rich can get away with a light sentence. I am sure that this factor did not figure at all in the AGC's deliberation. But, this is the perception that has arisen.