September 9th, 2015

happy girl

More Lim Meng Suang.

You know a judgment is really bad when there are new things about it that completely stuns you, and not in a good way, when you re-read it again for the millionth time. I re-acquainted myself with the parts of Lim Meng Suang that dealt with the separation of powers and the Court of Appeal's self-limiting vision of its role under the aforesaid, and I could not believe what I read in paragraphs 73 and 74. It is so incredible that it deserves to be reproduced in full:

It will be seen that art 12(1) comprises two main limbs. The first states that '[a]ll persons are equal before the law'.... No reasonable person would seri0usly attempt to controvert this particular statement, as it is just and fair from 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 criterion (or set of criteria) for determining whether the appellants' art 12(1) rights have indeed been violated.

What, then, about the second limb of art 12(1), which states that '[a]ll persons are...entitled to equal protection of the law'? 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..., 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.
(emphasis mine; original emphasis removed)

I don't even know how to express the intellectual affront of this passage in a formal and academic way, and since this is my blog and not a paper, I won't even bother to use polite language to mask my sheer incredulity that this passage was really written by our Court of Appeal. There are at least two things wrong with it. First, is it not plainly obvious that 'the law' in Article 12 refers to the law in general? To put it another way, when the Constitution says that '[a]ll persons are equal before and law and entitled to equal protection of the law', a plain reading of it surely points to the conclusion that it is referring to 'the law' generally. The Court, in fact, answered its own question with the underlined part of the passage. It makes little sense to interpret 'the law' as anything but referring to the law generally - i.e. the law as an idea, a legal system, something that purports to assert authority over its subjects, not specific legislations and statutes - because the effect of that is absurd. As the Court itself already said, why would the appellants argue that they should be accorded equal protection under section 377A when they are challenging the constitutionality of section 377A? This argument is so absolutely self-defeating and absurd that I cannot imagine it was raised by parties at all.

Second, regardless of what submissions were actually made, this entire argument is simultaneously tedious navel-gazing, legal creativity stretched to its limits, and a classic example of a strawman argument. I just don't understand what the point even is in bringing this up because it is so obvious that it's not even a real argument. I can't even bring myself to say that it's a plausible argment...because it's not. The most I can say is that it's possible that one would interpret 'the law' to refer to section 377A but oh my god, it is so plainly absurd and illogical that it beggars belief that it would be seriously considered, let alone seriously written about by the Court of Appeal.

Okay, I'm done ranting. It's dinner time, after which I will stalk Dr Chee at Clementi Avenue 6. Can't wait!