Freedom of expression and sexual orientation: Textualist Singapore vs expansionist India

by Kartikeya Jaiswal and Pranay Modi 

This article was originally posted on Rightsblog.net

Introduction

‘Freedom of expression’ is a fundamental right guaranteed  by the constitutions of several democratic countries. It is an internationally recognised ‘human right’ and finds mention in Article 19 of the Universal Declaration of Human Rights (UDHR) . But while the right exists on paper, its actual extent, in different countries, depends entirely on the interpretation accorded to the words by those jurisdictions.

Sexual orientation and gender identity are pertinent examples here – whether the freedom of expression covers them or not depends entirely on the legal interpretation of ‘expression’.  In certain countries, the constitutional interpretation of this right has enabled the legal recognition of sexual orientation and gender identity as human rights. In others, it has led to the continued criminalisation of sexuality and gender identity

Issue

Recently, the Singapore High Court, while deciding the constitutionality of Section 377A of the Penal Code – having implications on the legalisation of homosexuality – was faced with the question; does freedom of expression include sexual orientation? The court, vide Ong Min Johnson v. Attorney-Generalanswered  in the negative; and its analysis was in stark contrast to the analysis of the Supreme Court of India in Navtej Singh Johar v. Union of India, where the question was answered in the affirmative.

 

Singapore

Section 377A of the Penal Code criminalises ‘acts of gross indecency’ between men in public or private. In Johnson, the question arose:  does Article 14(1)(a) of the Singapore Constitution– which protects the freedom of expression – encompass sexual orientation as well? To answer the question, the Court applied the Tan Cheng Bock framework – a three-pronged method deployed for the interpretation of statutes.

First, the court considered the context in which ‘expression’ was used within the legal code as a whole (para 245). It determined context by noting the marginal note accompanying Article 14, which reads “Freedom of speech, assembly and association:. The absence of the term ‘expression’ from the marginal note, was interpreted as a clear indication that the expression was not a stand-alone right. ‘Expression’ must be read with ‘speech’ and must “necessarily point towards some form of verbal communication”. Thus, ‘expression’ under Article 14(1)(a) protects “freedom of speech encompassing matters of verbal communication of an idea, opinion or belief and not male homosexual acts”(para 255).

Second, the court considered the legislative purpose of enacting the term ‘expression’. It noted that when the constitution was adopted, there was no reference to a free-standing right of expression and ‘expression’ was only used in furtherance of the right to free speech (para 257).

The third prong of the test – comparing purpose with ordinary meaning – only reinforced the court’s interpretation, that ‘expression’ only includes expression in the form of speech. Thus, the court concluded that Article 14(1)(a) does not confer the “right to engage in male homosexual acts as a form of ‘expression’”.

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India

The approach adopted by Justice See Kee Oon of the Singapore High Court, towards the interpretation of Article 14(1)(a), is in stark contrast to the approach adopted by the Supreme Court of India, while interpreting Article 19(1)(a) of the Indian Constitution – which is in pari materia to Article 14(1)(a) of the Singaporean Constitution.

In 2014, the Indian Supreme Court – in a judgement which conferred legal validity to the identity of transgender individuals – had held that Article 19(1)(a) guarantees not just speech, but also thenatural rights inherent in the status of the citizens of a free country”.

This expansion of Article 19(1)(a) allowed the Supreme Court to adopt a natural rights approach in Navtej as well. The court observed that “sexual orientation is one of the many biological phenomena which is natural and inherent” and any law which discriminates on the basis of such an inherent property of identity, would violate Article 19(1)(a) of the Indian Constitution.

 

Analysis

Despite being common law courts, there is a fundamental difference in the way both jurisdictions conferred meaning to the term ‘expression’. These diametrically opposite conclusions are a function of the method of interpretation adopted, rather than any normative opinion on homosexuality.

In Singapore, the court adopted a textualist approach and stuck to the core meaning of ‘expression’, refusing to consider the penumbra of meanings. At the heart of the judgement is the belief that the judicial process simply does not allow for the kind of social progress sought by the petition.

The Indian Court, on the other hand, disregards the fetters of textual limitations and expands the scope of the text. It confers meanings on ‘expression’ found beyond the core and within the penumbra. This expansionist approach – dubbed ‘transformative constitutionalism’ – enables the progression of rights. It displays the willingness of the Indian court to push the envelope and take up the mantle of social progress for itself.

 

Conclusion

Although to decide whether one of these approaches is better than the other is a matter for posterity. But for now, what is clear is that the Singapore High Court is not regressive in its normative morality, but simply that it is strict in its judicial process.

Nevertheless, the implications of this judgment on Singapore’s LGBTQI community – and their human rights – cannot be ignored. While the Singapore High Court has maintained the propriety of the judicial process and the separation of powers by leaving it to the legislature to take the final decision, it has failed to give immediate relief to LGTBQI persons. The continued denial of their human rights is predicated upon the continued persistence of Singaporean peoples’ political right to a disciplined judiciary. In this deadlock, it is incumbent upon the Singaporean Parliament to step in and protect the human rights of Singapore’s LGBTQI community, in line with the international standards of the UDHR and the Yogyakarta Principles.

Even though the Singapore High Court has given adequate reasoning by deeming it fit for the legislature to scrap Section 377A; expanding the scope of ‘freedom of expression’ would have sent a strong message, both domestically and internationally, as the LGBTQI community keep on fighting for their basic human rights.

 

ABOUT THE AUTHORS

KartikeyaKartikeya Jaiswal studied law at Jindal Global Law School in New Delhi, and graduated in August 2019.  He is now advocate practising law in new Delhi.

 

 

PranayPranay Modi studied law at Jindal Global Law School in New Delhi, and after graduating is now a Research Fellow at Vidhi Centre for Legal Policy, New Delhi

International Human Rights News: Weekly Roundup

by Julia Kedziorek and Amita Dhiman

Each week students at the University of Essex Human Rights Centre prepare an overview of the past week’s human rights related news stories from around the world.  This summary contains news articles from 5th March to 11th March 2020.

This week’s stories in focus

International Women’s Day Protests around the world

Women took to the streets around the world on the 8th March to protest against inequality and gender violence…

Mexican women: “This is our feminist spring”

80,000 people took the streets of Mexico on 8th March, protesting against gender-based violence. Women went on strike for a day, across areas of both professional and domestic life, to highlight the impact of their absence. Mexico has the highest number of murders of women, averaging more than 10 a day,  320 in January 2020 alone.

The aim of the protests was to challenge the misogynistic view of women held in Mexico’s masculine culture. “Mexico is a country of rights, but only on paper” said  Ana Pe cova, Director of EQUIS Justice for Women.

Female protestors in Kyrgyzstan arrested

In Bishkek, Kyrgyzstan, dozens of women were arrested for ‘public order offences’ as they protested against gender violence and inequality, while masked men attacked them, injuring some and tearing up their placards

 

Stop the executions of tortured detainees!

Death_penaltyBahrain
Human Rights Watch is calling for the Bahraini authorities to overturn the death sentences of two men who allege they were tortured during detention.  Their original convictions were reversed in Oct 2018 when evidence emerged to support their torture allegations but was reinstated by the High Court of Appeal in 2020.

Egypt
UN human rights experts have called for the release of 4 minors, among those facing death sentences in a mass trial in Egypt.   British MPs are urging the Foreign Secretary to intervene on human rights grounds, and Amnesty International’s MENA Research and Advocacy Director, Philip Luther said “The death penalty can never deliver justice” particularly when the defendants have alleged that they were subject to torture.

‘LGBT+ free zones’ in Poland 

LGBTFreezonesOver 100 municipalities in the south-east of Poland have declared themselves as “LGBT ideology free” zones.  There has been a rise of right-wing rhetoric from the ‘Law and Justice’ ruling party, declaring the LGBT community a threat to traditional Catholic based Polish morality.  The anti-LGBT movement’s aim is to stop the “rainbow plague” (a term coined by the Archbishop of Krakow), destroying the morality of Poland’s youth.  Although the zones have no basis in law, they are a clear example of encouraging discrimination.

Bart Staszewski (pictured), an LGBT activist and film-maker, has created “Military zone-do not enter”-style road signs as part of a project to highlight the discrimination.  Adam Bodnar, Poland’s independent Commissioner for Human Rights, stated the Government is increasingly homophobic in its sentiments and questioned the allocation of EU funds in areas that allow discrimination to flourish. The European Parliament adopted a convention condemning the so called  “LGBTI-free zones” in December 2019.

The abduction of the daughter of Dubai ruler from a UK street

Shamza_AlMaktoumThe lapsed investigation into the disappearance of Sheikha Shamsa, the daughter of the ruler of Dubai, from the streets of Cambridge 20 years ago is to be reviewed by police.   Human Rights Watch is pressing for the release of the ruler’s 2 daughters, who are said to be held captive in the UAE.  Shamsa was abducted in 2000 and her sister, Latifa, was kidnapped and forced back to Dubai, after fleeing on a boat to India in 2018.  Mohammed Bin Rashid Al Maktoum is the Emir of Dubai and the Vice President and Prime Minister of the United Arab Emirates.  Sheikh Mohammed has strong ties with the UK, creating the largest horse racing team in the world and is a regular at Ascot, often photographed with the Queen.

 

Other stories making the news around the world

International

Africa

Europe

Latin America and the Caribbean

Middle East

North America

South and South-East Asia

West and Central Asia

Issues that Malawi Human Rights Commission must consider in its national inquiry on LGBT Rights

By Alan Msosa

It has been reported  that this July the Malawi Human Rights Commission (MHRC) will conduct a survey to establish the views of lesbian, gay, bisexual, and  transgender (LGBT) Malawians. This survey follows an instruction by the Ministry of Justice, issued in November 2016, for MHRC to hold a national public inquiry to seek peoples’ views about homosexuality in order to inform the government’s decision  to decriminalise or not anti-gay laws. According to MHRC Chairperson, Justin Dzonzi, a report of the survey will be submitted to the Ministry of Justice by the end of October. In this article, I discuss the importance of the survey and propose how MHRC can use the national inquiry to bridge the gap between opposing views in the debate about homosexuality in Malawi.

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Why Malawi is not (currently) repealing anti-gay laws

By Alan Msosa

In recent years growing global advocacy calling for the repeal of anti-gay laws has faced fierce resistance especially in Africa. Proponents argue that decriminalisation of same-sex acts is necessary to end discrimination and facilitate protection of LGBTIQ persons’ human rights.

Same-sex sexual acts are illegal in 74 countries globally, that is 39% of United Nations’ member states. 93% of Commonwealth citizens live in jurisdictions where same-sex acts are a criminal offence. In Africa, such acts are criminal in 34 states, or approximately 62% of African Union member states.

In Malawi, same sex acts are criminalised under sections 137A, 153, 156 of the penal code on unnatural offences, indecent practices between males, and indecent practices between women respectively. In addition, the Marriages, Divorce and Family Relations Act makes it illegal to claim a gender identity other than that assigned at birth. Continue reading

University of Essex Human Rights Centre qualify for oral round of LSE-Featherstone Sexual Orientation and Gender Identity Moot competition

A University of Essex Human Rights Centre team has qualified for the oral rounds of the second LSE-Featherstone Sexual Orientation and Gender Identity Moot competition. The competition will take place on 3rd to 4th March 2017 at the London School of Economics. The Essex team consist of postgraduate students Luiza Drummond Veado, Fredrik Aahsberg and Angela Giannini. The coaches are PhD students Paulina Jimenez Fregoso and Alan Msosa.

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