By Ng Jing Song
“The principle of access to justice calls for nothing less.”
Three judges from the highest court of the land refused to banish a constitutional challenge to s377A. Since that decision, the Internet has been abuzz with the following quote from the judgement: “… this provision affects the lives of a not insignificant portion of our community in a very real and intimate way.”
There are two weighty adjectives in this statement that deserves unpacking: “not insignificant” and “very real and intimate”.
The judges fleshed out the “very real and intimate” injuries begotten by s377A. First, this law “make criminals out of victims”. The looming threat of being prosecuted gags victims of crimes. The victim might fear that a truthful account of the crimes’ contexts, which include elements of prohibited sexual acts, would result in two years behind bars. This law therefore becomes a twisted tool abetting further injustice.
Second, the judges noted the numerous “stern warnings” issued by the police to people who were suspected of infringing s377A. Surely, these warnings are stern only because a concrete threat of enforcement dangles overhead.
Third, the Government’s guarantee that the act will not be “proactively” enforced is problematically vague. This is not simply a theoretical quibble but also kindles hurtful threats. Neighbours and family members who are spiteful of a gay lifestyle can demand that the police swoop into the private loving relationships between gays.
The 102-page opinion from the Court of Appeal deserves kudos for detailing the “very real and intimate” damages stemming from s377A. On the other hand, the term “not insignificant” could be interpreted in a number of ways.
The gay community is not insignificant because the sheer number of its proponents is blossoming: the upward trend of gay people coming out, the throngs of Singaporeans who increasingly recognise the gravity of discriminatory laws, the burgeoning crowd at Hong Lim Park during Pink Dot. If the law uses crude numbers as the barometer for social mores, recent developments behoves a closer poll on our society’s evolving attitudes.
But the mere game of numbers does not capture the core of the court's pronouncement that gays are a “not insignificant portion of our community”. They are a positive and significant force in our country. Their exceptional contributions to our artistic scene and their capacity to nurture our future generations in warm and loving households mandate that s377A cannot be swept under the carpet by ministerial assurances of non-proactive enforcement.
The forum for Tan Eng Hong’s grievances, that is the High Court and not Parliament, adds another layer of meaning to the adjective of “not insignificant”. The constitutionality of s377A is called into question. This is not a matter of evolving social mores or the utility we reap from embracing the gay community.
Standing alone, an individual is “not insignificant” as he has standing in our country as a person deserving of the dignity and rights accorded by the republic’s Constitution. The “very real and intimate” impact of s377A on a single member of society renders the matter “not insignificant”.
In the words of the trio of judges from the Court of Appeal: “The principle of access to justice calls for nothing less.” The quasi-charitable pronouncements of non-proactive enforcement do not even nick the surface of what is at stake.