Lim Meng Suang and another v Attorney-General and another appeal and another matter

1. Andrew Phang Boon Leong JA (delivering the judgment of the court):

2. Introduction

3. Overview

4. [1]

   [1] There are very few legal provisions in the Singapore legal landscape which, although simply stated (and intuitively attractive), are very difficult to apply in practice. Article 12 of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Singapore Constitution”) is one of these rare exceptions. In particular, Article 12(1) of the Singapore Constitution (“Art 12(1)”), which is one of the provisions in issue in the present appeals (viz, Civil Appeal No 54 of 2013 (“CA 54/2013”) and Civil Appeal No 125 of 2013 (“CA 125/2013”)), is deceptively simple in its economy of language:

5. [2]

   [2] The issue before this court in the present appeals can be stated very simply: is s 377A of the Penal Code (Cap 224, 2008 Rev Ed) (“the current Penal Code”) inconsistent with Art 9 and/or Art 12 of the Singapore Constitution (referred to hereafter as “Art 9” and “Art 12”, respectively), and hence, unconstitutional to the extent of such inconsistency? In this regard, Art 9(1) of the Singapore Constitution (“Art 9(1)”), which is the specific provision in Art 9 that the appellants in CA 54/2013 and the appellant in CA 125/2013 (collectively, “the Appellants”) are relying on, provides as follows:

6. Art 4 of the Singapore Constitution (“Art 4”), which is set out below, should also be noted:

7. [3]

   [3] Section 377A of the current Penal Code, the provision which is the subject of the Appellants’ constitutional challenge, reads as follows:

8. In this judgment, we shall be referring to s 377A of not only the current Penal Code, but also earlier editions of that statute. As there are no substantial differences between the various versions of s 377A, we shall use the generic term “s 377A” to denote the version of s 377A in force at the particular point in time being discussed.

9. [4]

   [4] We also note that there is a presumption of constitutionality inasmuch as a court will not lightly find a statute or any provision(s) thereof (referred to hereafter as a “statute” for short) unconstitutional (see, for example, the decision of this court in Public Prosecutor v Taw Cheng Kong [1998] 2 SLR(R) 489 (“Taw Cheng Kong (CA)”) at [60]). This is only logical as well as commonsensical as our legislature is presumed not to enact legislation which is inconsistent with the Singapore Constitution. However, an issue arises in these appeals as to whether or not this presumption applies to colonial legislation as well, given that s 377A was first introduced into our Penal Code in 1938, when Singapore was still a British colony.

10. [5]

    [5] Whilst the central issue in the present appeals (as set out above at [2]) can be stated simply, it is intensely controversial, and has elicited diametrically opposed (as well as, on occasion at least, intense and even emotional) responses in the extra-legal sphere, especially where Art 12 is concerned. A great many arguments have been mounted by proponents on each side of the divide. It is no exaggeration to say that this court found itself in the midst of a cacophony of voices. Be that as it may, only one voice – and one voice alone – is relevant in so far as the present appeals are concerned: it is the voice of the law, which represents the voice of objectivity. All other voices are irrelevant; indeed, they generate unnecessary heat (and distraction) rather than needful (and illuminating) light.

11. Important general points

12. Only legal arguments are relevant

13. [6]

    [6] Before we set out the background facts and procedural history of the present appeals, it is necessary for us to first highlight a few important general points. The first is that many of the difficulties encountered in the context of Art 9 and Art 12 relate to the fact that the court is often involved in a delicate balancing process. More importantly, it often faces a paradox which it must nevertheless negotiate. On the one hand, it must disregard extra-legal considerations that are uniquely within the purview of the legislature (here, the Singapore Parliament). This was in fact a central motif in the justly famous theory of adjudication proffered by the late Prof Ronald Dworkin (in an entire series of works, commencing with his seminal book, Taking Rights Seriously (Harvard University Press, 1978) (especially at ch 4)). Yet, where the constitutionality of a statute is challenged under Art 9 and/or Art 12, the court must have regard to extra-legal considerations in so far as they impact the application of Art 9 and Art 12 themselves. The vexing difficulty – particularly in the context of the present appeals – is to discern where the line is to be drawn, bearing in mind that where the court does indeed have regard to extra-legal considerations, this must (in the nature of things) be by way of a very limited brief premised only on what is absolutely necessary to enable the court to apply the relevant legal principles relating to Art 9 and Art 12.

14. [7]

    [7] Drawing such a line in the legal sand is imperative. If this is not done, the court will necessarily be sucked into and thereby descend into the political arena, which would in turn undermine (or even destroy) the very role which constitutes the raison d’être for the court’s existence in the first place – namely, to furnish an independent, neutral and objective forum for deciding, on the basis of objective legal rules and principles, (inter alia) what rights parties have in a given situation. That the court’s role as a neutral arbiter is utterly vital is underscored in a situation where (as is the case here) the arguments on either side of what is in substance a legislative divide are intensely controversial and the relevant empirical evidence is ambiguous at best. All that the court can – and must – be concerned with in these circumstances is whether any fundamental rights under the Singapore Constitution (such as those pursuant to Art 9 and Art 12) have indeed been violated.

15. [8]

    [8] In determining the constitutionality of a statute which is alleged to be inconsistent with Art 12 (or, for that matter, any other Article of the Singapore Constitution), the court’s main concern is to be careful not to trespass into extra-legal territory which legitimately belongs only to the legislature. Looked at in this light, the many extra-legal arguments on the constitutionality of s 377A are irrelevant to the court’s application of Art 12. We hasten to add that this does not mean that these arguments are wholly irrelevant in all contexts. They are appropriate to a legislative debate, but that is wholly beyond the remit of the court. The proponents of these arguments fail to see this because they overlook the vital distinction referred to above (at [6]) between legal principles and extra-legal considerations. Hence, they proffer various extra-legal arguments as though those arguments are central to the court’s task, when they serve only to muddy an already difficult legal path which the court is attempting its level best to negotiate. This is unfortunate, to say the least. Indeed, the difficulties are exacerbated by the fact that some of the extra-legal arguments might also have an overlay of emotional and/or other overtones, and, on this ground alone, are more suited (if at all) to a legislative (or even philosophical) – but not a legal – debate.

16. What is legally relevant (and irrelevant) in the context of the present appeals

17. [9]

    [9] It follows, a fortiori, from the observations in the preceding paragraph that in deciding the present appeals, this court cannot – and must not – be drawn into the sphere of even broader (and, arguably, even more speculative) debate, in particular, on the possible legal as well as extra-legal consequences flowing from its decision on the constitutionality of s 377A. Indeed, counsel for the appellants in CA 54/2013, Ms Deborah Barker SC (“Ms Barker”), was at pains to point out right at the outset of her clients’ written case (as well as in her oral submissions before this court) that her clients’ appeal is not about other legal rights (such as the right to same-sex marriage). There is, in fact, no necessary connection between any court decision on the constitutionality of s 377A and any positive rights, the grant (or otherwise) of which is clearly a matter for the legislature – and the legislature alone. The line referred to above between what is legitimately within the purview of the court and what is legitimately within the purview of the legislature applies, as noted at the outset of the present paragraph, in an a fortiori manner in the present appeals.

18. [10]

    [10] It follows that in the present appeals, this court will take into account only those arguments which are legally relevant to the application of Art 9 and Art 12. All other arguments – interesting though they might be – ought to be canvassed in the appropriate fora (whether of a legislative, academic or some other public (but non-judicial) nature).

19. [11]

    [11] It is also important to emphasise that it follows that nothing in this judgment impacts the freedom of a person or group of persons to freely espouse as well as practise his/its values within the boundaries of the law (such as, in the religious context, within the boundaries laid down by Art 15 of the Singapore Constitution and the Maintenance of Religious Harmony Act (Cap 167A, 2001 Rev Ed)). This is consistent with the multi-racial, multi-cultural, multi-lingual as well as multi-religious nature of Singapore society. This is not mere political rhetoric, but a real and practical framework that furnishes real and practical freedom for each group and each individual to practise its/his values – provided (it is important to reiterate) this is done within the parameters and boundaries laid down by the existing law of the land. This freedom cannot, however, extend to an insistence by a particular group or individual that its/his values be imposed on other groups or other individuals.

20. [12]

    [12] Given our approach of focusing only on the relevant legal arguments in the present appeals, might it be argued that this court is conducting itself like an ostrich whose head is buried in the sand inasmuch as it might be ignoring the need to achieve a substantively fair result in the two cases at hand? This is, at first blush, a rather powerful argument. However, there seems to us no reason why a substantively fair result cannot be arrived at by focusing only on the relevant legal arguments. Indeed (and on the contrary), were this court to also consider extra-legal arguments that are within the purview of the Singapore Parliament, would that not be contrary to fairness in both a procedural as well as a substantive sense? It should also be noted that if it is thought that a substantively fair result can only be achieved by a consideration of extra-legal arguments as well, then the Singapore Parliament can always remedy the situation in the appropriate fashion. However, it would then be doing so in a legitimate manner. It bears repeating that this court cannot seek to achieve the same result as it does not have the legitimate jurisdiction to do so – the legitimate jurisdiction lies, instead, with the Singapore Parliament.

21. Background facts and procedural history

22. [13]

    [13] As we have already mentioned, the present appeals pertain to the constitutionality of s 377A. The Appellants are essentially arguing that s 377A violates Art 9 and/or Art 12.

23. [14]

    [14] The appellant in CA 125/2013, Tan Eng Hong (“Tan”), was arrested on 9 March 2010 for engaging in oral sex with a male partner in the cubicle of a public toilet. Tan and the male partner were charged under s 377A on 2 September 2010 and 1 September 2010 respectively. Tan filed an application (by way of an originating summons (“OS”)) to challenge the constitutionality of s 377A on 24 September 2010. On 15 October 2010, the Prosecution substituted the s 377A charges against Tan and his partner with charges under s 294(a) of the current Penal Code for the commission of an obscene act in a public place. Tan and the Attorney-General, the respondent in the present appeals (“the Respondent”), proceeded to litigate over the issue of whether Tan had the requisite locus standi to challenge the constitutionality of s 377A. That culminated in the decision of this court in Tan Eng Hong v Attorney-General [2012] 4 SLR 476 (“Tan Eng Hong (standing)”), delivered on 21 August 2012, where it was held that Tan did have the requisite locus standi.

24. [15]

    [15] The appellants in CA 54/2013, Lim Meng Suang (“Lim”) and Kenneth Chee Mun-Leon (“Chee”), have been in a romantic and sexual relationship for the past 15 years. Together, they run “TheBearProject”, an informal social group for plus-sized gay men. Both men aver that they have been sexually attracted to men since young, and have experienced various forms of social discrimination against homosexual men. On 30 November 2012, slightly over three months after the judgment in Tan Eng Hong (standing) was delivered, Lim and Chee filed an OS to challenge the constitutionality of s 377A.

25. [16]

    [16] Tan’s substantive application was first heard by a High Court judge on 18 January 2013. Lim and Chee’s substantive application was first heard by the same High Court judge (“the Judge”) on 7 February 2013. Judgments for these two substantive applications were released on, respectively, 2 October 2013 (reported as Tan Eng Hong v Attorney-General [2013] 4 SLR 1059 (“Tan Eng Hong (substantive)”)) and 9 April 2013 (reported as Lim Meng Suang and another v Attorney-General [2013] 3 SLR 118 (“Lim Meng Suang”)). In both judgments, the Judge held that s 377A did not violate the Singapore Constitution.

26. [17]

    [17] Lim and Chee filed their notice of appeal on 30 April 2013. On 15 July 2013, Lim and Chee sought, inter alia, leave to amend their OS to include new arguments centring on how s 377A violated Art 9. Their application was dismissed by a High Court judge sitting as a single judge of the Court of Appeal. Lim and Chee then filed Summons No 3664 of 2013 (“SUM 3664/2013”) on 17 July 2013, requesting a three-judge Court of Appeal to review that judge’s dismissal of their application. SUM 3664/2013 was heard on 2 August 2013, whereupon it was adjourned to be heard together with Lim and Chee’s substantive appeal (ie, CA 54/2013). CA 54/2013 was set down to be heard on 14 October 2013.

27. [18]

    [18] In the meantime, Tan filed an application on 14 August 2013 for leave to intervene in CA 54/2013. This application for leave to intervene was subsequently withdrawn when it was heard on 5 September 2013. As mentioned above at [16], the judgment for Tan’s substantive application was released on 2 October 2013. A notice of appeal (assigned the number “CA 125/2013”) was quickly filed on 8 October 2013, along with an application for, inter alia, CA 125/2013 to be expedited and heard together with CA 54/2013 on 14 October 2013. That application was heard on 10 October 2013, wherein this court ordered CA 54/2013 and CA 125/2013 to be heard together because they raised essentially the same issues of law. The hearing for CA 54/2013, originally scheduled for 14 October 2013, was vacated to allow counsel for Tan, Mr M Ravi (“Mr Ravi”), to file submissions.

28. Summary of the arguments in the court below

29. [19]

    [19] Ms Barker’s arguments in the court below centred on how s 377A violated Art 12. Firstly, it was submitted that equal protection under Art 12 extended to protection from discrimination on the basis of sexual orientation. Secondly, it was said that s 377A was so absurd, arbitrary and unreasonable that it could not be good law. Thirdly, it was argued that s 377A failed the two-step test for determining the constitutionality of a statute under Art 12 (“the ‘reasonable classification’ test”) because it disclosed no intelligible differentia and the differentia applied bore no rational relation to the object of s 377A. (Under the “reasonable classification” test, which was enunciated in, inter alia, Taw Cheng Kong (CA), Nguyen Tuong Van v Public Prosecutor [2005] 1 SLR(R) 103 (“Nguyen Tuong Van”) and Yong Vui Kong v Public Prosecutor and another matter [2010] 3 SLR 489 (“Yong Vui Kong”), a statute that prescribes a differentiating measure will nonetheless be consistent with Art 12 if it is based on “reasonable classification”; ie, if: (a) the classification prescribed by the statute is founded on an intelligible differentia which distinguishes persons within the defined group from persons outside the group; and (b) that differentia has a rational relation to the object sought to be achieved by the statute.) Lastly, Ms Barker submitted that s 377A did not conform to trends in international jurisprudence, which militated against discrimination on the basis of sexual orientation. She therefore prayed for s 377A to be struck down in toto (cf the prayers sought by Lim and Chee on appeal at para 347 et seq of their Appellants’ Case, in which it is argued, as an alternative, that s 377A should be read down by striking out the words “or private” therein).

30. [20]

    [20] Mr Ravi’s arguments in the court below centred on how s 377A was inconsistent with both Art 9 and Art 12. He argued that s 377A was contrary to the fundamental rules of natural justice and was therefore not “law” for the purposes of Art 9(1). In relation to Art 12, he contended that s 377A was absurd, arbitrary and unreasonable, and that the differentia of males bore no rational relation to the object of the provision.

31. [21]

    [21] The Respondent essentially argued that s 377A passed the “reasonable classification” test. The objectives of s 377A, it submitted, comprised the preservation of public morality and the safeguarding of public health (it should be noted that this last-mentioned point was not pursued before this court). The non-inclusion of female homosexual conduct did not render s 377A under-inclusive because such conduct was either less prevalent or perceived to be less repugnant than male homosexual conduct. Even if s 377A were under-inclusive, the Respondent contended, legislative leeway ought to be given to our Parliament. Most importantly, it was submitted, there should be a strong presumption of constitutionality for laws passed by the legislature.

32. The decisions below

33. The decision in Lim Meng Suang

34. [22]

    [22] The Judge commenced his decision in Lim Meng Suang by undertaking a historical inquiry into Art 12. Article 12 was found to be consanguine with equivalent provisions in the US Constitution, the Constitution of India and the Federal Constitution of Malaysia. Equal protection, the Judge held, was a guarantee of not merely procedural or administrative equality, but also substantive equality. Nevertheless, legislatures around the world had had to continually classify diverse groups and activities for different purposes; a legislature was entitled to pass laws that dealt with the problems stemming from the inherent inequality and differences pervasive in society.

35. [23]

    [23] The Judge proceeded to apply the “reasonable classification” test to s 377A. It was clear, he held, that the classification prescribed by s 377A was based on an intelligible differentia: there was little difficulty in determining who fell within and without the provision. The second-stage inquiry into whether the differentia was rationally related to the object of s 377A was, however, fraught with difficulty. Determining the purpose of legislation was not straightforward, and there were also problems with the extent of over- or under-classification required before the court could find that a rational relation was absent. In addition, there was a danger of engaging in tautological reasoning.

36. [24]

    [24] The Judge was of the view that the purpose of s 377A was to be determined at the time it was first introduced into Singapore’s Penal Code in 1938. That purpose, he found, had remained unchanged to the present day: “[t]he act of males engaging in grossly indecent acts with other males was to be criminalised” (see Lim Meng Suang at [67]). There was thus a “complete coincidence” (see Lim Meng Suang at [100]) between the differentia in relation to the classification prescribed by s 377A and the object of that provision; the “reasonable classification” test was clearly satisfied. Turning to the issue of legitimacy of purpose, the Judge held that the purpose of s 377A was legitimate because of the weight of historical practice and “deep seated feelings” pertaining to procreation and family lineage (see Lim Meng Suang at [127]).

37. The decision in Tan Eng Hong (substantive)

38. [25]

    [25] The Judge commenced his judgment in Tan Eng Hong (substantive) with an examination of Art 9(1), and held that the reference to “law” therein had to include a reference to the fundamental rules of natural justice. He observed that there was a dearth of jurisprudence on the concept and scope of those rules. Nevertheless, he noted two possible types of legislation that would not qualify as “law” for the purposes of Art 9(1), namely: (a) legislation aimed at securing the conviction of particular individuals; and (b) legislation that was absurd or arbitrary.

39. [26]

    [26] After considering statements from pro- as well as anti-homosexual groups, medical and scientific bodies and court decisions, the Judge declined to find that homosexuality was a natural and immutable attribute. This rendered moot the argument that s 377A was an absurd law which was contrary to the fundamental rules of natural justice because it targeted a natural and immutable attribute of a person. The Judge was also not persuaded that s 377A was unconstitutional because it was too vague and uncertain.

40. [27]

    [27] In so far as the constitutional challenge under Art 12 was concerned, the Judge held that the “reasonable classification” test applied to all constitutional challenges based on this Article. He did not adopt the approach taken in the foreign authorities cited to him because those authorities factored in legal and extra-legal social, economic, cultural and political considerations which were unique to their respective jurisdictions. The Judge also observed that s 377A could not be said to have an unsound purpose merely because that purpose was to advance a certain allegedly controversial morality. Finally, the Judge ruled that there was a complete coincidence between the differentia embodied in s 377A (viz, male homosexuals or bisexual males who engage in acts of gross indecency with another male within the meaning of the provision) and the purpose and object of the provision (viz, making male homosexual conduct an offence because such conduct was not desirable).

41. The parties’ respective cases on appeal

42. CA 54/2013

43. [28]

    [28] Before this court, Ms Barker submitted (in relation to CA 54/2013) that Lim and Chee possessed the requisite locus standi to challenge the constitutionality of s 377A for the following reasons:

44. (a) Tan Eng Hong (standing) made it clear that where a person who was a member of the group defined by a purportedly unconstitutional statute (referred to hereafter as an “impugned statute” where appropriate to the context) faced a real and credible threat of prosecution under that statute, this was sufficient to give him locus standi to challenge the constitutionality of that statute under Art 12. Lim and Chee were both sexually active male homosexuals falling within the group defined by s 377A. They thus had the locus standi to challenge s 377A as being violative of Art 12.

45. (b) With regard to Art 9, given Lim and Chee’s averment that their personal rights under that Article had been violated and that there was a real controversy between the parties, this sufficed to establish their locus standi to challenge the constitutionality of s 377A under that Article.

46. [29]

    [29] In terms of the substantive merits of CA 54/2013, Ms Barker argued that s 377A violated Art 12(1). Section 377A was said to be arbitrary on its face as: (a) it ran foul of the concept of constitutional supremacy wherein a State could not deprive minorities of their fundamental liberties simply because of popular moral sentiment; and (b) it criminalised acts that were legal for non-male homosexuals. Section 377A, it was contended, also failed the “reasonable classification” test as the classification prescribed by that provision was not based on an intelligible differentia; and even if the classification could be said to be based on an intelligible differentia, that differentia bore no rational relation to the object of s 377A. Section 377A, it was further submitted, also violated Art 12(2) of the Singapore Constitution (“Art 12(2)”) because sexual orientation was a practically immutable aspect of a person’s identity.

47. [30]

    [30] In relation to Art 9, Ms Barker argued that s 377A violated Art 9(1). The right to life and personal liberty set out in Art 9(1), she submitted, should be given a purposive interpretation to include a limited right of privacy. Life and personal liberty must, at their core, include a right of personal autonomy allowing a person to enjoy and express affection and love towards another human being.

48. [31]

    [31] The Respondent, on its part, originally submitted that Lim and Chee lacked the requisite locus standi to challenge the constitutionality of s 377A. In particular, it argued that a real controversy was required to establish standing and jurisdiction, and that such a controversy would only arise when the State took action pursuant to the impugned statute in question. However, in a subsequent letter to Ms Barker dated 1 July 2014, the Respondent stated that it would not be pursuing its case on this particular point as it had not been raised before the Judge in the proceedings below.

49. [32]

    [32] In so far as the substantive issues in CA 54/2013 were concerned, the Respondent argued that s 377A did not violate Art 12(2). Article 12(2), the Respondent submitted, was exhaustive in terms of the prohibited grounds of discrimination set out therein, and was distinguishable from constitutional provisions in other jurisdictions which explicitly enumerated sex or sexual orientation as one of the prohibited grounds of discrimination. It was further argued that:

50. (a) Section 377A did not violate Art 12(1). A single standard of review should be applied to determine the constitutionality of an impugned statute under Art 12(1), namely, the “reasonable classification” test. Applying that test, the classification prescribed by s 377A was founded on an intelligible differentia which bore a rational relation to the legislative purpose of the provision. The “reasonable classification” test did not, and ought not to, require substantive judicial review of the legislative purpose of s 377A. In any case, the purpose of s 377A was constitutionally permissible.

51. (b) Section 377A also did not violate Art 9(1). In this regard, comparative jurisprudence was inapplicable. Reading Art 9(1) to entail a right to privacy was contrary to the weight of authority, as well as the history, text and structure of Art 9. In any case, s 377A was “law” for the purposes of Art 9(1).

52. CA 125/2013

53. [33]

    [33] In CA 125/2013, Mr Ravi made four arguments in relation to Art 12. First, he submitted that the applicable test for determining the constitutionality of an impugned statute under Art 12 was not confined to the “reasonable classification” test. Secondly, he contended that the classification prescribed by s 377A was not based on an intelligible differentia because s 377A was vague and “[did] not apply differentia based on either gender, sexual orientation or [the] nature of [the] sexual act”. Thirdly, the object of s 377A was, according to Mr Ravi, an expression of animus by the majority against a minority, and was therefore incompatible with the constitutional guarantee of individual fundamental freedoms against majoritarian oppression. Fourthly, it was argued that there was no rational relation between the purpose of s 377A and the differentia embodied in that section.

54. [35]

    [35] In response to Mr Ravi’s submissions, the Respondent made the following arguments with regard to Art 12. First, the established test for determining the constitutionality of an impugned statute under Art 12(1) only required the classification prescribed by the impugned statute to be founded on an intelligible differentia which bore a rational relation to the purpose and object of the statute. Secondly, the relevant classification in relation to s 377A was based on an intelligible differentia (viz, male homosexuals or bisexual males who engage in acts of gross indecency with another male within the meaning of the provision), and that differentia was rationally related to the purpose and object of the provision (viz, making male homosexual conduct an offence because such conduct was not desirable). Thirdly, Art 12(1) did not contemplate judicial scrutiny of the legislative purpose of an impugned statute. Fourthly, Art 12(1) “[did] not impose any blanket prohibition on classifications based on sex or sexual orientation or ‘immutable’ characteristics, or on classifications that [were] ‘unreasonable’ or ‘impermissible’” [emphasis in original omitted].

55. [36]

    [36] The Respondent’s submissions in relation to Art 9 were as follows. First, Art 9(1) referred to “the deprivation of life in the sense of the death penalty, and personal liberty in the sense of the liberty of the person … and the freedom from unlawful incarceration or detention”. Secondly, s 377A was “law” for the purposes of Art 9(1) because it had a clear core of meaning and was not unconstitutionally vague. Thirdly, Art 9(1) did not protect a person’s sexual identity or orientation, regardless of whether or not that was an immutable aspect of a person’s identity.

56. The issues before this court

57. The preliminary issues

58. [37]

    [37] From the procedural history set out above, it can be seen that the following two preliminary issues were originally raised in CA 54/2013:

59. (a) Do Lim and Chee have the requisite locus standi to challenge the constitutionality of s 377A?

60. (b) Should Lim and Chee be allowed to amend their OS to include new arguments centring on how s 377A violates Art 9?

61. As noted above (at [31]), the Respondent indicated in its letter to Ms Barker dated 1 July 2014 that it was no longer pursuing the first of the aforesaid preliminary issues – in particular, because the locus standi point had not been raised before the Judge in the proceedings below. By that same letter, the Respondent stated that it was also not objecting to Lim and Chee’s application for leave to amend their OS to include new arguments centring on how s 377A violated Art 9. Both of the above preliminary issues are therefore no longer live issues before this court.

62. [38]

    [38] We would add that, in any event, had it been necessary for us to decide SUM 3664/2013, we would have allowed the application. In their supporting affidavit for SUM 3664/2013, Lim and Chee averred that the constitutionality of s 377A was a matter of public interest, and that the proposed amendment to their OS would allow this court to consider the merits of all the arguments relating to whether or not s 377A was unconstitutional and determine once and for all whether s 377A violated Art 12 and/or Art 9. Lim and Chee further contended that there would be no prejudice to the Respondent if the proposed amendment to their OS were allowed.

63. The substantive issues

64. [41]

    [41] The present appeals raise several overlapping arguments about the constitutionality of s 377A. These boil down to whether s 377A violates the following provisions of the Singapore Constitution:

65. (a) Art 9(1);

66. (b) Art 12(1); and

67. (c) Art 12(2).

68. We shall discuss each of these substantive issues in turn, beginning with the issue of whether s 377A violates Art 9(1).

69. Whether s 377A violates Art 9(1)

70. [42]

    [42] Article 9, part of which was set out above at [2], provides as follows:

71. [43]

    [43] The arguments raised by Mr Ravi and by Ms Barker on Art 9 in the present appeals are different. Ms Barker argues that the right to life and personal liberty under Art 9(1) should include a limited right to privacy and personal autonomy allowing a person to enjoy and express affection and love towards another human being. Mr Ravi, on the other hand, contends that s 377A is vague, arbitrary and absurd.

72. [44]

    [44] In so far as Ms Barker’s arguments are concerned, our view is that the right to privacy and personal autonomy which she canvassed should not be read into the phrase “life or personal liberty” in Art 9(1) for three reasons.

73. [45]

    [45] First, such an interpretation of Art 9(1) would be contrary to established Singapore jurisprudence. The phrase “personal liberty” in Art 9(1) refers only to the personal liberty of a person from unlawful incarceration or detention (see Tan Eng Hong (standing) at [120], affirming Lo Pui Sang and others v Mamata Kapilev Dave and others (Horizon Partners Pte Ltd, intervener) and other appeals [2008] 4 SLR(R) 754). Although the phrase “life” has not been authoritatively interpreted by the Singapore courts, it should be interpreted narrowly in accordance with the jurisprudence on “personal liberty” and Art 9’s context and structure, which brings us to our next point.

74. [46]

    [46] Our second reason for rejecting Ms Barker’s arguments on Art 9 is that the narrow interpretation of Art 9(1) which we have just mentioned above at [45] is (as the Respondent has correctly argued) supported by the context and structure of Art 9 itself. Articles 9(2) to 9(4) provide various procedural safeguards in relation to the arrest and detention of a person. Article 9(2) gives expression to the common law prerogative writ of habeas corpus; Art 9(3) provides for an arrested person’s right to counsel and the right to be informed of the grounds for his arrest; and Art 9(4) relates to the production of an arrested person before a magistrate within 48 hours. Articles 9(5) and 9(6) contain exceptions to the rights guaranteed to an arrested person. Read in this context, it is clear that the phrase “life or personal liberty” in Art 9(1) refers only to a person’s freedom from an unlawful deprivation of life and unlawful detention or incarceration.

75. [47]

    [47] Thirdly, protection against unlawful detention is the particular focus of Art 21 of the Indian Constitution, from which our Art 9 is derived. India’s Art 21 states that “[n]o person shall be deprived of his life or personal liberty except according to procedure established by law”. As the Respondent has argued (again, correctly, in our view), the framers of India’s Art 21 consciously rejected the wider US formulation “without due process of law” in the Fifth and Fourteenth Amendments to the US Constitution, and enacted additional provisions similar to Singapore’s Art 9(3) and Art 9(4) to protect India’s citizenry against unlawful detention. There is no indication that they intended to impute an expansive meaning into the phrase “life or personal liberty”. India’s Art 21 was the basis for the “liberty of the person” provision in Art 5(1) of the Malaysian Constitution, which was later adopted in Singapore as Art 9(1).

76. [48]

    [48] In a related vein, foreign cases that have conferred an expansive constitutional right to life and liberty should be approached with circumspection because they were decided in the context of their unique social, political and legal circumstances. For example, the Supreme Court of India has taken an expansive view of the right to life to include an individual’s right to health and medical care. This approach must be understood in the context of India’s social and economic conditions (see Yong Vui Kong at [83]–[84]). A similarly broad approach has been adopted in the US because of the due process clauses in the Fifth and Fourteenth Amendments to the US Constitution, which are materially different from our Art 9(1).

77. [49]

    [49] Indeed, it is significant that Ms Barker herself conceded that the private law relating to privacy was a developing one. It is clear that Lim and Chee (and likewise, Tan in CA 125/2013) cannot obtain by the (constitutional) backdoor what they cannot obtain by the (private law) front door. Indeed, that would be a wholly inappropriate utilisation of the existing body of constitutional law (which serves a quite different function). More importantly, as we have already noted above (at [30]), Lim and Chee base their Art 9(1) rights on a narrow conception of the right to privacy, viz, that the right to life and personal liberty under Art 9(1) should include a limited right to privacy and personal autonomy allowing a person to enjoy and express affection and love towards another human being. Once again, such a right ought, in our view, to be developed by way of the private law on privacy instead. Indeed, we also observe that the right claimed by Lim and Chee, although of an apparently limited nature, is, in point of fact, not only vague and general, but also contains within itself (contradictorily) the seeds of an unlimited right. Put simply, such a right could be interpreted to encompass as well as legalise all manner of subjective expressions of love and affection, which could (in turn) embody content that may be wholly unacceptable from the perspective of broader societal policy. At this juncture, we are, of course, back to “square one”, so to speak, for this brings us back (in substance at least) to the issue of whether or not s 377A ought to enforce broader societal morality.

78. [50]

    [50] We turn now to Mr Ravi’s arguments on the alleged unconstitutionality of s 377A under Art 9.

79. [51]

    [51] First, we do not think the phrase “act of gross indecency with another male person” in s 377A is of such vagueness that would cause the provision to fall outside the classification of “law” for the purposes of Art 9(1). The concept of indecency is not alien to Singapore legislation (see, for example, s 145(1) of the Women’s Charter (Cap 353, 2009 Rev Ed) and s 7 of the Children and Young Persons Act (Cap 38, 2001 Rev Ed)), and we do not think there is any objectionable degree of vagueness inherent within s 377A itself. We would venture to suggest that s 377A prohibits, at its core, sexual acts between males. The Judge’s views on the operation of s 377A (in Tan Eng Hong (substantive) at [76], [82] and [83]) were tentative in nature not because the provision was vague, but because the matter before him did not involve a criminal charge under s 377A.

80. [52]

    [52] Secondly, s 377A is not arbitrary. Mr Ravi’s submissions on this point are not easily comprehensible, but they appear to suggest that there is no rational purpose for s 377A. Mr Ravi asserted, without any legal substantiation whatsoever, that the purpose of s 377A in signalling societal disapproval of grossly indecent acts between males was arbitrary.

81. [54]

    [54] Let us turn now to the issue of whether s 377A violates Art 12(1).

82. Whether s 377A violates Art 12(1)

83. The relevant legal provisions

84. [55]

    [55] To begin our analysis of the constitutionality of s 377A under Art 12(1), it would be appropriate to not only set out Art 12(1) again, but also reproduce the rest of Art 12 as well, as the context of Art 12 (in particular, Art 12(2)) is, as we shall see, very significant. Article 12 reads as follows:

85. [56]

    [56] As the constitutionality of s 377A is the central issue in these appeals, we also set out this provision again, even though we have already done so at the outset of this judgment (see above at [3]):

86. The applicable test for constitutionality: the “reasonable classification” test

87. The test articulated

88. [57]

    [57] The established test in Singapore for determining the constitutionality of a statute under Art 12 is the “reasonable classification” test. This is clear from the relevant case law (see, for example, Ong Ah Chuan and another v Public Prosecutor [1979–1980] SLR(R) 710 (“Ong Ah Chuan”) at [37]; Taw Cheng Kong (CA) at [58]; Nguyen Tuong Van at [70]; Yong Vui Kong at [109]; and Tan Eng Hong (standing) at [124]). It should, however, be noted that the “reasonable classification” test is not even engaged if the impugned statute is not discriminatory in the first place. In the words of Mohamed Azmi SCJ in the Malaysian Supreme Court decision of Malaysian Bar v Government of Malaysia [1987] 2 MLJ 165 (“Malaysian Bar”) at 170 (referred to in Taw Cheng Kong (CA) at [58]):

89. Indeed, the question set out in the above quotation has been referred to as the first stage of “a three-stage inquiry” (see, for example, the Singapore High Court decision of Taw Cheng Kong v Public Prosecutor [1998] 1 SLR(R) 78 at [32]; that decision was reversed by this court in Taw Cheng Kong (CA), but without any apparent comment on this particular point). Strictly speaking, however, the “reasonable classification” test, in our view, comprises only two closely-related stages.

90. [58]

    [58] The “reasonable classification” test was articulated by, inter alia, this court in Taw Cheng Kong (CA), which, after referring to the above passage from Malaysian Bar, went on to cite (at [58]) Azmi SCJ’s observations in that same case (viz, Malaysian Bar) as follows (at 170):

91. [59]

    [59] Taw Cheng Kong (CA) also cited (at [54]) the following comments by Lord Diplock in the Privy Council decision of Ong Ah Chuan (at [35] and [37]) with approval:

92. [60]

    [60] Under the “reasonable classification” test, therefore, a statute which prescribes a differentiating measure will be consistent with Art 12(1) only if: (a) the classification prescribed by the statute is founded on an intelligible differentia; and (b) that differentia bears a rational relation to the object sought to be achieved by the statute (see also Tan Eng Hong (standing) at [124]).

93. The difficulties with the “reasonable classification” test

94. (1) The true nature and function of the test

95. [61]

    [61] The “reasonable classification” test is not without its difficulties. This has been articulated in the legal literature (see, for example, Joseph Tussman & Jacobus tenBroek, “The Equal Protection of the Laws” (1949) 37 Cal L Rev 341). Perhaps because of the perceived lack of viable alternative tests and the very thorny nature of the concept of equality itself (especially when it is to be applied in a practical context), the cases (at least in the Singapore context) continue to endorse (only) the “reasonable classification” test as the test for determining the constitutionality of a statute under Art 12. The concept of equality is thorny, not least because whilst it is eminently desirable (in theory) to achieve equality, this (normative) ideal faces the (factual) reality that inequality (in all its various forms) is an inevitable part of daily life. How, then, is the law to ensure that there is a basic level of equality, applying the principle of equality generally, and more importantly, in what situations would such a level of equality be deemed to be legally mandated? As we shall see in a moment, the “reasonable classification” test, whilst useful, does not really address the fundamental questions just posed (see also Peter Westen, “The Empty Idea of Equality” (1982) 95 Harv L Rev 537). This is not surprising because (as we shall also see) the very nature of the “reasonable classification” test renders it incapable of furnishing the requisite (or complete) normative as well as analytical impetus (let alone the requisite criterion or criteria) to answer these questions.

96. [62]

    [62] However, it is also of the first importance to note, at this juncture, that this does not mean that the “reasonable classification” test ought to be rejected out of hand. That would be to throw the baby out together with the bathwater. As we shall elaborate upon below, the “reasonable classification” test is an important threshold test, without which any attempt to determine whether or not Art 12 has been contravened by an impugned statute cannot even take off the ground in the first place. We shall also see that if a particular statute fails to pass legal muster under this test, it would mean that that statute is so legally illogical and/or incoherent that it would, ipso facto, be repugnant to any idea of legal equality to begin with. The reader would be forgiven for thinking that all this is rather general and abstract. Indeed, it is. However, it sets the stage for the more detailed analysis that follows. It would, in fact, be appropriate at this juncture to turn to an explanation of why the “reasonable classification” test functions only as a threshold legal test.

97. [63]

    [63] It will be recalled (see above at, inter alia, [60]) that the “reasonable classification” test states that a statute which prescribes a differentiating measure will be consistent with Art 12(1) only if: (a) the classification prescribed by the statute is founded on an intelligible differentia (referred to hereafter as either “the first limb” or “Limb (a)” of the “reasonable classification” test); and (b) that differentia bears a rational relation to the purpose and object sought to be achieved by the statute (referred to hereafter as either “the second limb” or “Limb (b)” of the “reasonable classification” test). It is our view that the underlying rationale of both the aforementioned limbs of the “reasonable classification” test is not only logical, but also commonsensical as well as self-evident. Let us elaborate.

98. [64]

    [64] In our view, whilst it is clear that both Limb (a) and Limb (b) must be satisfied in order for the “reasonable classification” test as a whole to be satisfied, Limb (a) operates prior to Limb (b) inasmuch as if the classification concerned is not based on an intelligible differentia to begin with, then it is pointless for the court to ascertain whether Limb (b) has been satisfied (ie, whether the differentia bears a rational relation to the purpose and object sought to be achieved by the statute in question). This is only logical and commonsensical: if there is no intelligible differentia to begin with, then there is no set of intelligible differentia in existence that can be compared with the purpose and object of the statute (which is the pith and marrow of Limb (b)).

99. [65]

    [65] When, however, would a statute fail to pass legal muster under the threshold legal criterion embodied within Limb (a)? The answer is that it would, in the nature of things, very seldom be the case. This is because the differentia concerned need not be perfect; it need only be “intelligible”. This connotes (in turn) a relatively low threshold that ought to avoid any consideration of substantive moral, political and/or ethical issues because these issues are potentially (and in most instances, actually) controversial. We should note, parenthetically, that when we refer to “controversy” with respect to moral, political and/or ethical issues, we are not necessarily referring to anything sinister, malevolent or even insidious in nature because reasonable persons can reasonably disagree on a myriad of issues which arise in moral, political and/or ethical contexts. More importantly, it is no business of the courts or the law generally to engage in the resolution of such issues – except to the extent necessary to resolve any legal issue(s) at hand. It is not surprising, therefore, that the (legal) criterion centring on the need for an intelligible differentia under Limb (a) is (as already mentioned) a relatively low threshold that only requires the differentia concerned to be based on intelligibility. In this regard, the Judge observed thus in Lim Meng Suang (at [47]):

100. [66]

     [66] We agree with the Judge’s observations. They may appear value-neutral, but that is precisely what, in our view, was intended by the criterion of intelligible differentia to begin with. Value-neutrality is not the same as redundancy or an absence of functionality. As alluded to earlier, the “reasonable classification” test in general and its component limbs in particular are only intended to (and, in the nature of things, can only) serve a minimal threshold function of requiring logic and coherence in the statute concerned, without which the court cannot meaningfully proceed in any event to determine whether that statute violates Art 12.

101. [67]

     [67] In the context of Limb (a), what this means is that the differentia embodied in the impugned statute must not only identify a clear distinguishing mark or character, but must also be intelligible (as opposed to illogical and/or incoherent). In this regard, we would go a little further than the Judge, although we think that our view is at least implicit within his observations in any event. In particular, we are of the view that a differentia which is capable of being understood or which “is capable of being apprehended by the intellect or understanding” (see Lim Meng Suang at [47]) may nevertheless still be unintelligible to the extent that it is so unreasonable as to be illogical and/or incoherent. We recognise that this last-mentioned proposition may open the doors to potential abuse, so we include the caveat that the illogicality and/or incoherence must be of an extreme nature. It must be so extreme that no reasonable person would ever contemplate the differentia concerned as being functional as intelligible differentia. Put simply, the illogicality and/or incoherence of the differentia concerned must be such that there can be no reasonable dispute (let alone controversy) as to that fact from a moral, political and/or ethical point of view (or, for that matter, any other point of view). Where such illogicality and/or incoherence is present, there is no point even beginning to talk about the concept of equality (let alone whether there has been a violation of the right to equality contrary to Art 12) because no reasonable classification even exists in the first place. In such circumstances, Limb (b) is not engaged at all. More generally, there would be no way in which the statute concerned can possibly pass legal muster in so far as the concept of equality embodied within Art 12 is concerned.

102. [68]

     [68] Assuming, however, that there is an intelligible differentia in place such that Limb (a) of the “reasonable classification” test is in fact satisfied, it must further be demonstrated that Limb (b) has been satisfied as well in order for the “reasonable classification” test as a whole to be satisfied. To recapitulate, where Limb (b) is concerned, it must be demonstrated that the differentia identified pursuant to Limb (a) bears a rational relation to the purpose and object sought to be achieved by the statute in question. It is clear that a prerequisite for the satisfaction of Limb (b) is that the purpose and object of the statute in question must first be determined or ascertained. Once that purpose and object has been determined or ascertained, a rational relation between the differentia identified pursuant to Limb (a) and that purpose and object must then be demonstrated in order for Limb (b) to be satisfied. Again, this is both logical as well as commonsensical: if there is no rational relation between the differentia identified pursuant to Limb (a) and the purpose and object of the statute concerned, there is, ex hypothesi, no logical and/or coherent basis upon which to hold that the statute is based on reasonable classification to begin with. Although the absence of such a rational relation can take many forms, it seems to us that the requisite rational relation will – more often than not – be found. This is because (as the Judge held in Lim Meng Suang at [98]) there is no need for a perfect relation or “complete coincidence” [emphasis added] between the differentia in question and the purpose and object of the statute concerned. As the “reasonable classification” test itself prescribes, the relation need only be a rational one. That having been said, this does not necessarily mean that a rational relation will always be found to exist by the courts. For example, if there is a clear disconnect between the purpose and object of the impugned statute on the one hand and the relevant differentia on the other, the “reasonable classification” test will be held not to have been satisfied. But, all this is easily stated in the abstract. What will determine the final outcome in any given case will be the specific facts as well as context before the court. We should add, at this juncture, that ascertaining the purpose and object of a statute will not always be easy. Indeed, as we shall see later in this judgment (below at [116]–[152]), ascertaining the purpose and object of s 377A is both an extremely complex as well as extremely difficult exercise.

103. [69]

     [69] As is the position with regard to Limb (a), the key inquiry under Limb (b) does not really address the concept of equality as such. Its focus, as explained above, is primarily logical as well as commonsensical. Put simply, if there is no rational relation between the relevant differentia on the one hand and the purpose and object of the statute concerned on the other, there is (again) no point even beginning to talk about the concept of equality (let alone whether there has been a violation of the right to equality contrary to Art 12) because no reasonable classification even exists in the first place. Furthermore, if Limb (b) is not satisfied, it would also follow that the statute in question cannot possibly satisfy the concept of equality embodied within Art 12 in any event – a result that will likewise obtain if Limb (a) is not satisfied (as noted above at [64] and [67]).

104. [70]

     [70] It should be noted that the threshold nature of the “reasonable classification” test helps to balance the need to accord as much legislative leeway as possible to the legislature against the need to ensure that laws which are patently illogical and/or incoherent do not pass legal muster. In a related vein, this test simultaneously prevents the courts from becoming “mini-legislatures” (a point which is dealt with in more detail below, especially at [77]).

105. [71]

     [71] As mentioned above at [61]–[62], the fact that the “reasonable classification” test is a threshold test which does not in itself furnish the requisite criteria for determining whether the right to equality under Art 12 has been violated does not mean that this test ought therefore to be dispensed with. Indeed, it is quite the opposite. As we pointed out earlier (at [62] above), the “reasonable classification” test serves a minimal – but vital – threshold function of requiring logic and coherence in the statute concerned, without which the court cannot meaningfully proceed to determine whether that statute contravenes Art 12. Put simply, there is no point analysing the statute concerned from the perspective of the concept of equality if the “reasonable classification” test is not even satisfied in the first place. Looked at in this light, the “reasonable classification” test is by no means a merely mechanical or purely procedural test. It does, in fact, contain substantive elements. That having been said, it is important to reiterate at the same time that the “reasonable classification” test in itself does not really aid the court in ascertaining whether or not the concept of equality under Art 12(1) has been violated. Let us elaborate.

106. (2) The “reasonable classification” test in relation to the concept of equality in Art 12(1)

107. [72]

     [72] It will be recalled that Art 12(1) reads as follows:

108. [73]

     [73] It will be seen that Art 12(1) comprises two main limbs. The first states that “[a]ll persons are equal before the law” [emphasis added]. No reasonable person would seriously attempt to controvert this particular statement as it is just and fair from both a logical as well as an intuitive point of view. However, what precisely does it mean when we state that “[a]ll persons are equal before the law”? In the first place, what does the phrase “the law” in this particular limb of Art 12(1) mean? Does it refer to the law in general? If so, then this particular limb is no more than a declaratory statement that is, as just alluded to, self-evident. Alternatively, does the phrase “the law” refer specifically to the statute that is sought to be impugned as being inconsistent with Art 12(1) and, hence, unconstitutional pursuant to Art 4? In the context of the present appeals, “the law” would then refer to s 377A. But, even if that be the case, this limb of Art 12(1) does not really assist us in so far as the concept of equality is concerned – on what legal basis and on what legal criterion (or criteria) can the court find that a particular person or group of persons has not been accorded equality of treatment in relation to s 377A? Presumably, all those who fall within the scope of s 377A would be considered to be “equal” before that particular provision, but that would hardly be an argument which the Appellants would want to rely upon. If the Appellants seek to argue that they are not being accorded equal treatment because s 377A applies only to them (ie, Lim, Chee and Tan) and no other male homosexuals, that would be an entirely separate and distinct argument which would require a separate criterion (or set of criteria) for determining whether the Appellants’ Art 12(1) rights have indeed been violated.

109. [74]

     [74] What, then, about the second limb of Art 12(1), which states that “[a]ll persons are … entitled to the equal protection of the law” [emphasis added]? As in the case of the first limb, what does “the law” in this second limb refer to? If it refers to the law in general, then, likewise as in the case of the first limb, the second limb would be no more than a declaratory statement which is, by its very nature, self-evident. Alternatively, if the phrase “the law” in the second limb of Art 12(1) refers to the impugned statute (in the present appeals, s 377A), this would be of no assistance to the Appellants since they are not seeking equal protection under s 377A. Indeed, what they desire is quite different, in that what they are seeking is protection from prosecution under s 377A.

110. [75]

     [75] It should be noted that Ms Barker, in her oral submissions before this court, was of the view that the two aforementioned limbs of Art 12(1) ought to be read as an integrated whole. We agree with this to the extent that the second limb follows from the first. However, this does not preclude (for the purposes of analytical clarity) the approach to the two limbs which has just been set out.

111. Is there an additional test of illegitimacy?

112. [76]

     [76] We pause at this juncture to deal with the Judge’s observation in Lim Meng Suang that a statute can still be rendered unconstitutional even if it satisfies the “reasonable classification” test, provided it can be demonstrated that the object of that statute is illegitimate (at [114]–[116]). Not surprisingly, the Appellants have endorsed this particular proposition. We also note that counsel for the Respondent, Mr Aedit Abdullah SC (“Mr Abdullah”), whilst not purporting to endorse this proposition in toto, indicated that he was willing (but only by way of a fallback argument) to admit to a test of unreasonableness along the lines embodied in this court’s decision in Yong Vui Kong (at [111]–[119]) and the seminal English Court of Appeal decision of Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223 (“Wednesbury”) (cfLim Meng Suang at [116]). We note, parenthetically, that there was no real elaboration by Mr Abdullah with regard to the Respondent’s reliance on Yong Vui Kong in this connection. In so far as the test of unreasonableness in Wednesbury is concerned, Lord Greene MR (with whom Somervell LJ and Singleton J agreed) described the requisite level of unreasonableness as involving (in the context of administrative law) a decision or conclusion that was “so unreasonable that no reasonable [public] authority could ever have come to it” (see Wednesbury at 230 and 234). We would, with respect, differ from all these aforementioned views. Let us elaborate.

113. [77]

     [77] It is important to commence our analysis in this regard by referring to a fundamental proposition that constitutes part of the wider concept of the separation of powers. Put simply, the courts are separate and distinct from the legislature. More specifically, whilst the courts do “make” law, this is only permissible in the context of the interpretation of statutes and the development of the principles of common law and equity. It is impermissible for the courts to arrogate to themselves legislative powers – to become, in other words, “mini-legislatures”. This must necessarily be the case because the courts have no mandate whatsoever to create or amend laws in a manner which permits recourse to extra-legal policy factors as well as considerations. The jurisdiction as well as the power to do so lie exclusively within the sphere of the legislature. Indeed, the power of the legislature to enact and amend laws is governed by quite a different procedure. Hence, the duty of a court is to interpret statutes enacted by the legislature; it cannot amend or modify statutes based on its own personal preference or fiat as that would be an obvious (and unacceptable) usurpation of the legislative function.

114. [78]

     [78] The legislative powers which we have just discussed are different from the court’s role in developing the law – a task which it frequently undertakes. As already alluded to above, the courts do indeed develop the principles of common law and equity. Indeed, as Lord Reid famously observed in an extra-judicial lecture (see “The Judge As Law Maker” (1972–1973) 12 JSPTL (NS) 22 (“The Judge As Law Maker”) at p 22):

115. [79]

     [79] The process of such development is, however, quite different from the process of legislative enactment or amendment of legislation, and is effected through development of case law. In this regard, it should be noted that the legislature can reject existing principles of common law and equity. Put simply, the legislature can enact a statute overruling an existing principle of common law or equity if the legislature thinks it fit to do so. However, absent such a situation, the courts can – and do – develop the principles of common law and equity.

116. [80]

     [80] A paradigm example of this may be seen in the law of negligence, commencing with the seminal House of Lords decision of M’Alister (or Donoghue) (Pauper) v Stevenson [1932] AC 562 (more commonly cited as “Donoghue v Stevenson” and referred to hereafter as “Donoghue”). This decision effected a sea change in this foundational area of the law of tort (see generally the valuable background prior to this decision furnished in Edward H Levi, An Introduction to Legal Reasoning (University of Chicago Press, 1949), as well as equally valuable background pertaining to the decision itself in Geoffrey Lewis, Lord Atkin (Butterworths, 1983; reprinted, Hart Publishing, 1999) at pp 51–67; see also Matthew Chapman, The Snail and the Ginger Beer: The Singular Case of Donoghue v Stevenson (Wildy, Simmonds & Hill Publishing, 2009) and The Juridical Review – Donoghue v Stevenson: The Paisley Papers (Special Edition) (2013)). Indeed, the law of negligence has developed even further since Donoghue. For example, the House of Lords extended the law of negligence to cover liability for negligent misstatements in its path-breaking decision in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 (“Hedley Byrne”). In this regard, and several years prior to the decision of the House in Hedley Byrne, Denning LJ (as he then was) adopted precisely the legal position which was ultimately endorsed in Hedley Byrne itself, but found himself in a minority in the English Court of Appeal decision of Candler v Crane, Christmas & Co [1951] 2 KB 164 (“Candler v Crane”). Indeed, Denning LJ significantly referred in an extra-legal context to his powerful dissenting judgment in Candler v Crane as his “most important judgment” (see Lord Denning’s “Foreword” to the inaugural volume of the Denning Law Journal ([1986] Denning LJ 1 at p 1)). In the course of delivering his judgment in that case, Denning LJ drew a distinction (at 178) between “timorous souls who were fearful of allowing a new cause of action” and “bold spirits who were ready to allow it [viz, a new cause of action] if justice so required”. Indeed, the ultimate vindication by the House of Lords in Hedley Byrne of Denning LJ’s views in Candler v Crane bears ample testimony to the virtues of the courts being “bold spirits”. And something of that spirit can be seen in the course of the development of the law of negligence in countries where English law has been transplanted – as witnessed, for example, in the decision of this court in Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency [2007] 4 SLR(R) 100 (see also generally the valuable survey as well as analysis in David Tan & Goh Yihan, “The Promise of Universality – The Spandeck Formulation Half a Decade on” (2013) 25 SAcLJ 510).

117. [81]

     [81] The briefest of summaries of the development of the law of negligence set out in the preceding paragraph is but one illustration not only of the nature of the courts’ development of the principles of common law and equity, but also (and more importantly in the context of the present appeals) of the fact that the courts will not hesitate to develop the law in appropriate circumstances, taking on the nature of “bold spirits” in those circumstances (indeed, Ms Barker herself supported this particular point by citing decisions of this court on the development of the common law in her further written reply submissions in an attempt to persuade this court to adopt a more activist approach towards the interpretation of Art 12(1); the decisions which she cited in this regard were Lau Siew Kim v Yeo Guan Chye Terence and another [2008] 2 SLR(R) 108 and Chandran a/l Subbiah v Dockers Marine Pte Ltd (Owners of the Ship or Vessel “Tasman Mariner”, third party) [2009] 3 SLR(R) 995). However, in other situations, the courts will necessarily be more circumspect. This is especially the case with respect to matters which are uniquely within the sphere of the legislature. Whilst, for example, a court will not hesitate to interpret a statute, it will not – indeed, cannot – amend or modify a statute based on its own personal preference or fiat (or even its view of what it thinks the relevant extra-legal considerations should be) because (as already noted above at [77]) that would be an obvious and unacceptable usurpation of the legislative function.

118. [82]

     [82] Here, we come to the crux of the issue at hand. To permit the court the power – over and above its power of scrutinising legislation pursuant to the “reasonable classification” test – to declare a statute inconsistent with Art 12(1) (and, therefore, unconstitutional under Art 4) because the object of that statute is illegitimate would precisely be to confer on the court a licence to usurp the legislative function in the course of becoming (or at least acting like) a “mini-legislature”. Put another way, only the legislature has the power to review its own legislation and amend legislation accordingly if it is of the view that this is necessary. The courts, in contrast, have no such power – nor ought they to have such power.

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