The Association of Women for Action and Research (AWARE) has claimed that the Court of Appeal’s recent ruling upholding Section 377A of the Penal Code contradicts Singapore’s international obligations (“S377A ruling contradicts Govt position on equality”, Nov 17).
This reflects a deep misunderstanding of both domestic and international law, as well as the ruling itself. Indeed, the court has already addressed these points in paragraphs 186 to 188 of its judgment.
Under our Constitution, the right to equal protection comprises both formal and substantive elements. Formally, Article 12(1) declares that “All persons are equal before the law and entitled to the equal protection of the law”.
Article 12(2) provides the substantive content of equal protection by stipulating that “religion, race, descent or place of birth” ought to be treated alike by the law.
In its letter, AWARE referred to a 2011 response where the Singapore Government informed the United Nations’ Committee on the Elimination of Discrimination against Women that “the principle of equality of all persons before the law is enshrined in the Constitution of the Republic of Singapore, regardless of gender, sexual orientation and gender identity”.
In its recent ruling, the Court of Appeal held that the 2011 response does not in any way suggest that Article 12(2) should be expanded to include protection from discrimination based on “gender, sexual orientation and gender identity”, since the response makes no reference to either Article 12(2) or its prohibited grounds of discrimination.
It further observed that Article 12(1) of the Constitution “would indeed apply to all persons regardless of ‘gender, sexual orientation and gender identity’.”
Secondly and more fundamentally, the court emphasised that international law and domestic law are regarded as separate systems of law. International law does not form part of domestic law “until and unless it has been applied as or definitely declared to be part of domestic law by a domestic court”.
Conceptually, sexual orientation and gender identity are subjective and unclear. Their open-ended nature potentially undermines inherently gendered institutions such as marriage and family. They remain highly controversial and are not accepted as protected categories of non-discrimination under international law.
People are equal, but not all lifestyles or preferences are alike. Singapore would do well to avoid making sweeping changes to its laws and policies and continue upholding the family unit as the basic building block of society.
Darius Lee
*Letter first appeared on TODAY, Voices (Nov 18)