Archive for singapore

Fait Accompli: Singapore Again Upholds Section 377A Criminalising Homosexuality

Co-authored by guest contributors Paras Ahuja and Rahul Garg. 

Paras Ahuja is an undergraduate student pursuing law at the National Law University, Jodhpur. Her research interests include human rights, constitutional law and feminism. 

Rahul Garg is an undergraduate student pursuing law at the National Law University, Jodhpur. His research interests include gender studies, human rights and international humanitarian law.

On 30th March, 2020, the Supreme Court of the Republic of Singapore in Ong Ming Johnson v. Attorney-General upheld the constitutional validity of Section 377A of the Singapore Penal Code, 1871. Section 377A punishes any male person who commits an act of “gross indecency” with another male person, whether in public or in private. The judgement marks itself as a regressive touchpoint in Singapore’s progression towards inclusiveness and equality. 

Article 14(1) (a) of the Constitution of Singapore guarantees every citizen the right to freedom of speech and expression. The petitioners in this case contended that Section 377A derogated this right by failing to recognize one’s sexual orientation to be a part of the term “expression” within Article 14. While interpreting the term “expression,” the court applied the rule of “ejusdem-generis”. The rule postulates that wherever there is an enumeration of a list of specific things followed by a generic term, the genus term (here, “expression”) should be interpreted in context of the specie term(s) (here, “speech”) and not in its widest possible construction. The court, upon application of this rule, observed that “expression” is therefore restricted only to verbal “speech” and excludes sexual identity of a person. It, therefore, held that the right to freedom of expression is encompassed within the right to freedom of speech, reducing the term “and expression” to redundancy and surplusage. 

We argue that that is an erroneous application of ejusdem-generis. It is settled law that ejusdem-generis should not be applied in a way that makes the usage of the genus term redundant in a provision. This is a fundamental principle of statutory interpretation pointed out in case laws citing Sutherland. The Singaporean court’s interpretation, on the other hand, renders the term “expression” otiose and goes against the principle that legislature doesn’t use words in vain. 

Additionally, the court relied on the marginal note of Article 14 [i.e. “Freedom of speech”, assembly and association] to ascertain the scope of the provision in order to buttress its holding that “expression” is subsumed within “speech”, since the marginal note mentioned only “speech”. This reliance conflicts with the Singapore Supreme Court’s former observation in the case of Ezion Holdings Ltd v Teras Cargo Transport Pte Ltd, where marginal notes were held to be non-exhaustive and imprecise and therefore, not determinative enough of the true contents of a provision. 

The court, furthermore, conveniently maneuvered its way to protect Section 377A from the violation of right to life and personal liberty, enshrined under Article 9(1) of the Constitution. In refusing to include the protection of “homosexual-identity” within the scope of personal liberty, the court aligns its reasoning by saying that the right to personal liberty was not an absolute one, but was qualified. It stated that “unenumerated rights were not capable of specific protection.” However, this seems particularly faulty, as “personal liberty” by itself is an abstract right; it is a collection of rights involving several aspects of a person’s life and doesn’t guarantee any specific individual right singularly. In this context, the exclusion of “unenumerated rights” from the scope of personal liberty will leave it hollow and subject to arbitrary discretion as to its scope. 

In its reasoning, the court also observed that Section 377A does not criminalise a male homosexual for his “homosexual orientation”, but only for the actus reus consisting of performance of a homosexual activity with another man. The court additionally stated that a heterosexual man would be equally liable if he were to commit a homosexual act. This distinction between criminalising the “state of homosexuality” and the conduct, that is, the “homosexual act” is farcical and theoretical. This distinction fails as it renders the manifestation of the sexual identity impractical by punishing the conduct. Identifying the flaw in such an argument, the US Supreme Court in the case of Lawrence v. Texas noted that when the act that is criminalised is so closely correlated with the “state-of-being-homosexual”, it resultantly has the effect of defining the very identity as criminal. 

The court, in its subtlety, eschewed from answering the question of whether or not the sexual orientation of a person is an immutable factor. The question of immutability was deemed central by the court since the granting of the right to life and personal liberty in this case was considered to be contingent on the recognition of sexual orientation as immutable. However, frustrated with overwhelming scientific evidence from both sides in this regard, the court eventually declared this question outside the realm of legal discussion, belonging rather to the area of scientific controversy. We argue that there is no relevance of a conclusive determination on the aspect of immutability to the question of recognition of the fundamental rights. Either way, there is vacuity in the reasoning of the court as to why a chosen sexual orientation should not be entitled to the same constitutional protection in as much as an immutable sexual orientation would be, along the “born-with-it”/“it-is-my-choice” spectrum. Therefore, regardless of homosexuality falling anywhere between this immutability/choice spectrum, the larger human rights violation relates to the resultant stigma associated with criminalization. The judgment ultimately legitimises an assumed sense of normalcy which according to the court, is only heterosexuality. At the same time, it portrays homosexuality as an anomaly not protected by fundamental rights. 

The judgement, therefore, observes a false understanding of various provisions and judicial tools of interpretation, seemingly to achieve a predestined holding. The bench microcosmically imposes its own ideas of heteronormativity on the Singaporean society, which is not only upsetting, but also mistaken.

A State’s Responsibility in an Epidemic: Human Rights and the Coronavirus Outbreak

Guest Contributors Bodhisattwa Majumder and Devashish Giri are penultimate year students at Maharashtra Law University Mumbai. Their interests include Constitutional Law, Public International law and Maritime law. Any discussion related to the paper can be made via mail at bodhisattwa@mnlumumbai.edu.in or Giridevashish15@gmail.com

The outbreak of Coronavirus or COVID-19 (“Coronavirus”) from Wuhan, China (“People’s Republic of China “) has engulfed as many as twenty four countries across the globe with a medical emergency and has claimed more than 3,800 lives as of now. 

This strain of the virus is graver than the other types of Coronaviruses as it has never been identified in humans before. Coronavirus belongs to the zoonotic group of viruses which can affect a human being with a range of health ailments ranging from the common cold to serious problems such as Middle East Respiratory Syndrome (MERS-CoV) and Severe Acute Respiratory Syndrome (SARS-CoV). The World Health Organization and other countries including the US have declared it as a “Global Public Health Emergency”.  In order to restrict the transmission of the virus, however, China has taken various restrictive measures which have caused serious human rights violations including but not limited to arbitrary censorships, lockdowns, quarantines, police suppression, and mass detentions.

In outbreaks of viruses with communicable properties, response time in communicating information and alerting the public and world about the dangers of the virus is of the essence. Even a delay of a month can have a huge impact; in the absence of proper information, crowded public places act as the hub for transmission. 

Early on in the outbreak of Coronavirus, citizens of China were deprived of their freedom of expression and free speech. The Wuhan province was under strict observation by the Chinese government, and any information related to the outbreak was termed as mere “rumours” and prohibited from being shared across any social media platform. There were numerous reported instances of police suppression when doctors, nurses and other associated personnel working in the frontlines faced strict penal measures by the police on grounds of spreading the information related to the virus.

 It was only due to a brave whistleblower, Chinese Dr. Li Wenliang, who risked his own safety and livelihood to spread news of the outbreak in Wuhan to his alumni peers via WeChat, that the world was able to learn about this dangerous phenomenon that China had tried to keep under wraps. He sent his message on December 30, and China alerted the World Health Organization (WHO) about its outbreak on December 31. Since January 1, researchers have learned that China has been censoring WeChat accounts for words related to the Cornonavirus, blocking certain combinations or anything negative towards President Xi Jinping.  Furthermore, China placed the entire affected province under lockdown without any prior notice, which deprived the residents any chance to ensure the availability of basic amenities of life such as food and medicine. Such a measure has affected vulnerable populations of society, including those with disabilities, illness, and the elderly and deprived them of their essential needs. These are direct violations to their right to health. There has been a mass-quarantine process of millions of people for the cause of limiting the spread from the city of Wuhan. Any offering measure by any section of society be it, Lawyers, Activists or Artists, has been prohibited, censored, threatened and harassed by the organs of the government. Despite having strict regulations against discrimination regarding communicable diseases, the machinery has apparently failed.

Coronavirus has not limited itself to Chinese province and other South-East Asian states have been affected, although not every state has adopted measures which violate human rights. Amidst the Chaos, the approach of Singapore has been a silver lining, which has won praises for its benevolence and informative approach rather than an authoritarian one. Singapore’s approach has been direct and effective to reduce panic, rumours and conspiracy theories, aligning itself correctly with the statement of the Prime Minister which was posted on social media in three languages, “Fear can do more harm than the virus itself. The speech alone was proven effective as the following weekend witnessed a reduction in crowds in the city-state. The Singaporean approach included prevention, contact tracing, quarantine and access to information. Singapore’s official website of the Ministry of Communications and Information provided useful and practical advisories on topics such as ‘When to See a Doctor’, ‘What happens to suspect cases’ and ‘How to practice good personal hygiene’. The approach of Singapore prioritized the welfare and safety of citizens over political stability and economic costs, which won praise across the world. Singapore was among the most affected regions of Asia (Orange alert). Still, it chose to inform its citizens rather than bury the situation. The constant live news coverage, transparency about developments, and inclusion of health workers in planning has proved to be effective in controlling the situation and reducing  panic among citizens. 

Public International Law dictates that regardless of a health emergency or an epidemic, the measures taken to affect human rights should be legal, necessary, reasonable and proportional. Every measure must be recorded in evidence and there should be strict adherence to the procedure prescribed. An undemocratic regime leaves no scope for a consequence to the state for failures in terms of epidemic response and as a result, there is no accountability from the state. The people residing in affected areas are shunned out without any scope for the expression of dissent or discontent or even a cry for help from the international community. Human rights cannot be allowed to be violated under the garb of a health emergency and every nation should take a lesson from the incident of the Coronavirus outbreak. The priority of taking measures to restrict the outbreak lies in equal pedestal with the significance of following due process without depriving the people of their human rights. The international community needs to take a stand, and every response from a government during the outbreak of an epidemic or a pandemic must be within the four corners of human rights.