Stranger than Fiction: Opportunities for a new narrative in Dominico-Haitian relations under Covid-19

by Maria Cristina Fumagalli and  Bridget Wooding

In May 2012, the Dominican writer Junot Díaz published ‘Monstro,’ a science-fictional short story which depicts the post-apocalyptic scenario of a mysterious viral outbreak in Haiti and its repercussions on the island of Hispaniola as a whole and in the Dominican Republic in particular. We will not provide a full analysis of the short story itself here — for more on ‘Monstro’ in the wider context of Hispaniola border relation see Fumagalli’s On the Edge: Writing the Border between Haiti and the Dominican Republic (LUP, 2015; 2018)– but, since Díaz’s dystopic future clearly resonated with the present of his 2012 readers and anticipates aspects of our current predicament, we will use it as a springboard to provide a quick snapshot of a ‘life as we know it’ to which, post-Covid-19, the island of Hispaniola cannot and should not return.

Taking place in a non-specified point in the future where most of the beaches of the Dominican Republic are submerged and the countryside is deserted because of the ‘Long Drought,’ ‘Monstro’ suggests that this lethal viral outbreak is concomitant, possibly even directly connected with environmental degradation and what is no longer possible to call ‘natural’ disasters since they are provoked or made much more severe by human action and political choices. ‘Monstro’ then informs us that the first Haitians to be infected are the ‘poorest of the poor,’ foregrounding the pernicious correlation between health and wealth and indirectly denouncing how political neglect increases the vulnerability of those who are not in a position to protect themselves. These poor, in fact, are housed in unspecified ‘relocation camps,’ a reference which evoked the precarious life conditions of those who were relocated in relief camps created in Haiti after the devastating 2010 earthquake which claimed the lives of hundreds of thousands and affected millions. These camps were still open when Díaz published his short story two years after the earthquake and, distressingly, on the tenth anniversary of the earthquake in January 2020, the Director of the International Organisation for Migration (IOM) in Haiti lamented that 30,000 earthquake survivors were still encamped in Haiti, without access to promised housing.

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A boy stands at a makeshift camp on the grounds of the Petionville Golf Course in Port-au-Prince, Haiti, January 26, 2010 (Photo. REUTERS).

In the Dominican Republic, Haiti is used as the negative foil in anti-Haitian, racist, and ultra-nationalistic discourses which offer a simplified artificial picture which posits the two countries and peoples sharing the island of Hispaniola as different and incompatible (i.e. Dominicans are white or mixed race; Haitians are black; Dominicans are Catholic, Haitians practise Voudou), demonize Haitians, and disenfranchise Dominicans of Haitian descent.  In the aftermath of the devastating 2010 earthquake, these discourses, capitalising on the strategically fomented fear of a Haitian invasion which (allegedly) perpetually threatens the Dominican Republic, warned that the Dominican apocalypse was impending due to the imminence of a stampede of desperate Haitians crossing the border into the country.  This stampede, which never happened in reality, is represented, in Diaz’s ‘Monstro,’ by a horde of Haitians who, infected by the virus and turned into an unmanageable, bloodthirsty, and homogenous mass of murderers and cannibals, are ominously moving in unison towards the border with the Dominican Republic.

When the Haitian horde reaches the border, Dominican authorities decide to close it and instruct the army to meet the “invaders […] with ultimate force’ to prevent the viral infection spreading to the Dominican Republic. Similarly, when faced with the 2011 Haitian outbreak of cholera which was to kill thousands of Haitians, the immediate answer of the government of the Dominican Republic was, as it is the case in Diaz’s ‘Monstro,’ to close the border, (allegedly) to prevent the spreading of this potentially lethal disease.  This pathologization of Haiti and the Haitians was not a novelty: in the early 1980s, for example, Haitians were classified by the United States’ Center for Disease Control (CDC) as a ‘risk category’ and HIV-carriers based on an erroneous identification of Haiti as the point of origin of AIDS.

In ‘Monstro,’ the spreading of this mysterious virus in Haiti is facilitated by international neglect: since “it was just poor Haitians types getting fucked up,” Díaz’s narrator explains, “once the initial bulla died down, only a couple of underfunded teams stayed on” to try to better understand the virus and mitigate its consequences.  Haiti had begun its long battle with the cholera epidemic only a year before the publication of ‘Monstro,’ but it was already becoming clear (staunch denials on the part of the UN notwithstanding) that the epidemic had been introduced in the country by a Nepalese contingent of the United Nations mobilised to assist the population after the earthquake. In May, in a letter to the United Nations secretary general, António Guterres, thirteen UN rights monitors strongly criticised the UN for its “deeply disappointing” failure to make amends for having brought cholera to Haiti. After highlighting the inadequacy of the UN response to the Haitian crisis, the lead signatory of the letter, Philip Alston, the UN monitor on extreme poverty and human rights, concluded that the UN’s reprehensible conduct could only be understood by accepting that “racism” must have played a part.

In a move that reveals how racism and colourism also go hand in hand with anti-Haitianism in the Dominican Republic, the popular name of the epidemic which, in Díaz’s short story, begins to manifest itself by making Haitians blacker, is ‘Negrura.’  We are informed that Haitian–Dominicans and Haitians living in the Dominican Republic began to be ‘deported over a freckle,’ a comment that openly criticises the way in which, over many years, the Dominican government has been using arbitrary deportations (often targeting dark-skinned individuals regardless of their legal status) as a means to control and regulate ‘Haitian’ immigration, and, more specifically, of the resumption of deportations after the cholera epidemic as a ‘prophylactic’ measure.

 

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Face in limbo, camp Parc Cadeau, Haiti, December 4, 2015 (Photo. Michelle Siu)

Sadly, deportations continued to be used also after the publication of Diaz’s story in 2012.  On the 23rd September 2013, a ruling of the Dominican Constitutional Court ordered all birth registries from 1929 had to be audited for people who had been (allegedly) wrongly registered as Dominican citizens, de facto denationalizing over 133,000 Dominicans, mainly of Haitian descent.  The 2013 ruling was supported by the same well-established Dominican anti-Haitian racist ultra-nationalistic discourses which in the post-earthquake and post-cholera scenarios –but also on a myriad of many other occasions– had fomented hatred and paranoia, and demonized or pathologized Haiti, Haitians, and Dominicans of Haitian descent. A moratorium on deportations of Haitians with irregular migration status in the Dominican Republic took place during the eighteen months while a national regularization plan for foreigners was operated up until the middle of 2015, when registration for the plan lapsed. Deportations started up again in earnest. Unfortunately, the mix of euphemistically labelled “spontaneous returns” (often motivated by anti-Haitianism whipped up by elite nationalists), extra-official deportations and official deportations evidenced many of the shortcomings seen earlier in the process of deportations, when expulsions of Haitians had happened, en masse, from the Dominican Republic.  The humanitarian crisis derived from this intense cross-border movement is perhaps best exemplified by the camps established on the Haitian-Dominican border, such as the Parc Cadeau complex, where scholars suggest that, from a bio-politic prism, this forced displacement could be included in the “death zones of the world.”

 

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Masked mask, part of sculpture, Jean Philippe Moiseau, May 2020

Ironically, in 2020, before the first case of Covid-19 was detected in Haiti, it was the Haitian President Jovenel Moïse who unilaterally closed the land border with the Dominican Republic, mindful of the country’s long struggle against cholera which was only controlled in January 2019.  Paradoxically, Haiti had its lock-down first in the Americas before the arrival of Covid-19 and is one of the last countries assailed by the pandemic in the western hemisphere.  In the final months of 2019, in fact, Haiti was in lock-down, or peyi-lok, a creole epithet which alludes to the nationwide political and economic protests which, precipitated by anticorruption scandals revealed in mid-2018, paralysed the country. The Haiti-Dominican Republic border was not closed but most schools and businesses were shut down.

It is evident that the Covid-19 emergency constitutes a huge challenge for the island of Hispaniola, where health services in both countries are far from fit for purpose and containment and control will likely consist in a long haul. Haiti will be hard put to deal with coronavirus, due to a notorious lack of installed health services capacity and social distancing will be virtually impossible in urban areas because of overcrowded housing and informal labour patterns. Similarly, health services are weak in the neighbouring Dominican Republic and containment measures have not been uniformly applied despite a state of emergency having been decreed. On top of that, legislation adopted in the Dominican Republic in 2014 to restore the documents of denationalised persons has been unevenly and timidly applied, such that most of those affected by the operation of the law do not have their Dominican ID, hence have limitations on realising their rights to health and education and have been absent from ongoing social protection measures in place prior to the pandemic.  Likewise, hundreds of thousands of irregular migrants have, since 2014, engaged with the state in a regularisation programme only to find that they currently have a fragile or out-of-status legality. In these circumstances there is little incentive for them to come forward and stake claim to humanitarian aid from the authorities because they may fear deportation when the health crisis subsides.

 

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Masked Mask, Jean Philippe Moiseau, June 2020

The Dominican Republic and Haitian authorities have been correct in leaving a certain flexibility with the land border, enabling some 50,000 Haitians to return home since the pandemic was declared.  However, there is the danger that once more the border area between the two countries becomes instrumentalized as a temporary humanitarian corridor for the duration of the health crisis and the long term demands of cross-border workers may be yet again overlooked.

Despite all the challenges that it presents, however, the pandemic also provides opportunities to improve border relations and finally address the predicament of segments of the populations in precarious legality like Haitian migrants and denationalised Dominicans of Haitian ancestry.  Social protection mechanisms activated by the Dominican authorities for humanitarian assistance and those made unemployed by the health crisis, in fact, do not cover persons living and working in the country without a Dominican ID document.  In order to be effective in the Dominican Republic, which has the worst mortality rate in the insular Caribbean, in fact, the Coronavirus response has to include those who have been routinely marginalised and neglected.

We have engaged, since 2013, in the development of artistic and literary projects (i.e. public talks, book launches, workshops, concerts, photographic exhibitions, artistic performances, publications in English, French, and Spanish, YouTube video) aimed at foregrounding and enhancing social and cultural unity in order to counter dominant discourses and pernicious racist and discriminatory practices which deny the existence of collaborative linkages and cultural continuities between the peoples and countries sharing the island of Hispaniola.  We are therefore fully alert to the notion that a post-Covid-19 return to ‘life as we know it’ whereby anti-Haitianism, deportations, and denationalization are the status quo, is to be firmly resisted and avoided and, as many other activists on the ground, we believe that policy advocacy must support different ways of sustainably including these side-lined groups, often ostracised because of their ethnicity, in order that they may fully belong in Dominican society, benefiting from risk management both now and in the future.

 

ABOUT THE AUTHORS

Maria_FumagalliMaria Cristina Fumagalli is Professor of Literature at the University of Essex. She is the author of On the Edge: Writing the Border between Haiti and the Dominican Republic (2015; 2018), the first cultural and literary history of the region, and, more recently, of the chapter   “‘When Dialogue is No Longer Possible, What Still Exists Is the Mystery of Hope’: Migration and Citizenship in the Dominican Republic in Film, Theatre and Performance” in Border Transgression and Reconfiguration of Caribbean Spaces. Moïse, Myriam & Fred Réno (Eds). NY: Palgrave MacMillan (2020). She is Investigadora Asociada of Observatory Caribbean Migrants (OBMICA), Santo Domingo.

Bridget_WoodingBridget Wooding is a researcher, advocate, writer, trainer, and expert witness on migration related issues. She coordinates the Observatory for Caribbean Migrants (OBMICA), based in Santo Domingo (www.obmica.org), since 2009. She is the author of numerous publications, including books and articles on nationality matters and the migration dynamics affecting the Dominican Republic, the island of Hispaniola, the insular Caribbean, and respective Diasporas. She is the author of the chapter “The seeds of Anger: Contemporary issues in forced migration across the Dominican-Haitian border” in Border Transgression and Reconfiguration of Caribbean Spaces. Moïse, Myriam & Fred Réno (Eds). NY: Palgrave MacMillan (2020).

Remembering Srebrenica

this article was originally posted on University of Essex News on 5th July

 

25 years ago this month, a genocide unfolded in Srebrenica.  To mark Srebrenica Memorial Week, Essex Human Rights Centre has issued a statement and Members of the Centre have offered reflections.

 

***Trigger Warning: this report contains descriptions of sexual violence and genocide.

The Srebrenica genocide

Between late 1992 and the spring of 1995, the conflict in the former Yugoslavia led to thousands of Bosnian Muslims seeking refuge in the area around Srebrenica, a town in eastern Bosnia and Herzegovina.

To protect this group, on 16 April 1993 the United Nations Security Council passed Resolution 819, demanding all parties treat “Srebrenica and its surroundings as a safe area which should be free from any armed attacks or any other hostile act.”

Despite this – and the presence of United Nations peacekeepers in the area – on 6 July 1995, Bosnian Serb forces attacked Srebrenica.

Following a decree from the Bosnian Serb leader Radovan Karadzic that the Bosnian Serb Army should make life “unbearable” for those living in Srebrenica, more than 8,000 Bosnian Muslim boys and men were detained, abused, tortured and executed.

The International Court of Justice and the International Criminal Tribunal for the former Yugoslavia established that the ethnic cleansing that took place in Srebrenica amounted to genocide.

 

A statement from Essex Human Rights Centre to mark Srebrenica Memorial Week 2020

In the worst mass atrocity on European soil since 1945, over 8,000 Muslims, including children, were massacred, in July 25 years ago. Today, we honour the memory of those who were slain in Srebrenica, express solidarity with the survivors and reflect on the lessons of that savagery.

The important lesson that we draw from this and other genocides is that they do not happen spontaneously. Such atrocities begin with attitudes of intolerance and unchecked expressions of hostility towards others based on their identity. They are led by entrepreneurs of hate, catalyzed by discrimination and powered by impunity. They tell a tragic tale of numerous missed opportunities and are an indictment of our collective failure to stop the escalation of intolerant attitudes to mass slaughter at every stage of that collapse. The Srebrenica genocide was the tragic outcome of a sustained campaign over several years that drew on discrimination, exclusion, forced deportation, torture, systematic sexual violence and mass murder.

All of us can and should act to combat such horrors. We must challenge the exclusion, scapegoating and stigmatisation that fray social capital and destroy the pillars of trust amongst various communities resulting in devastation for all. This is all the more important in our interconnected world where every one of us can contribute online and offline to build trust and promote inclusion.

 

 

Reflections

Dr Ahmed Shaheed, Senior Lecturer in the School of Law and UN Special Rapporteur on freedom of religion or belief said: “Today, as we remember Srebrenica, we join the surviving friends and families in paying tribute to the victims of this genocide. We call on all to be clear-eyed about the lessons of the past and reject discourses of denial, and to work collectively to strengthen the societal foundations of peace and trust. ‘Never again’ must well and truly mean ‘never again’.”

Dr Carla Ferstman, Senior Lecturer in the School of Law and Human Rights Centre, and formerly the Executive Legal Advisor of the Commission for Real Property Claims of Refugees and Displaced Persons in Bosnia and Herzegovina, one of the international institutions established as part of the peace process to address the consequences of ethnic cleansing, noted that: “The genocide in Srebrenica occurred within a context of ethnic cleansing involving mass expulsions of the civilian population, unlawful confinements, enforced disappearances, mass rape, sexual assault, torture, as well as the destruction of mosques and community centres. It has left massive scars on the local population. There have been vital efforts to secure accountability, which have resulted in important convictions of senior military leaders for the genocide. But it is also important to recognise the need to secure justice for victims, to recognise the suffering they have endured, and to ensure their right to a remedy and reparations. That fight continues.”

Dr Andrew Fagan, Director of the Human Rights Centre, said: “One of the main reasons for the establishment of the modern human rights movement was the Holocaust: a European genocide. Despite the development of a vast body of international human rights law and the growth of a global human rights movement, the world witnessed another European genocide barely half a century later.

“Srbrenica bears many lessons for us today. One of the most important is that the human rights community must never assume that our work is complete, particularly in those parts of the world where it is wrongly assumed that human rights are largely secure.

“The vital need to never become complacent is fundamental to the Human Rights Centre’s approach to supporting the human rights project and hence the importance of remembering the genocide suffered by Bosnian Muslims in Srebrenica in 1995.”

Our thanks to Amnesty International for the image used on this page.

 

 

 

Protecting the rights of sex workers during a pandemic

by Astha Madan Grover

 

The COVID-19 pandemic has exposed many of the the pre-existing inequalities in society. It has disproportionately affected already marginalized communities that live outside societal protection mechanisms, often in financially precarious situations.  Sex workers are one such community whose rights need to be protected and respected.  Sex workers are entitled to human rights which include labour rights under the aegis of international protection frameworks.

From an International Law Perspective, the United Nations Charter (1945) obligates all UN bodies and agencies to promote and respect the “dignity and worth of the human person”, and The Convention on the Elimination of all Forms of Discrimination Against Women (1979) safeguards the right of female sex workers against discrimination.  It also grants them the right to social and economic security, right to privacy, the right to work, the right to freedom from stigma and prejudice and equal protection from the law and freedom from discrimination.  Recent research by Human Rights Watch shows that the criminalisation of sex work increases the vulnerability of sex workers, because attackers perceive them as easy targets due to stigmatization by law enforcement agencies.  Criminalisation has also been found to restrict sex workers’ right to health.

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Issues faced by sex workers due to COVID-19

Unfortunately, due to the COVID-19 pandemic, sex workers are facing increased harassment and discrimination due to a lack of access to emergency social protection programmes as well as financial difficulties.  In most countries, given the criminalization of some or all aspects of sex work, the informal sector is unable to grant them benefits, such as access to national social protection schemes.  Migrant sex workers also face the risk of deportation due to lack of work permits.

Workers can also get pushed into compromising situations, where they are taken to work with clients who may not have their safety or best interests in mind.  They lower the price to attract more clients so they can support themselves.  Workers may also stay on with abusive partners to avoid homelessness.  Sex workers, who still engage with clients may contract the virus despite taking precautions such as checking for fever and taking the client’s travel history.

Many workers live in shared accommodation,  which enables the rapid spread of the virus.  Sex workers, including those working in brothels, are usually self-employed.  They receive no remuneration for the period during which they do not get work.  Workers are unable to provide for their families due to the lack of clients and may have no other employment prospects as many of them have been forced into prostitution from a young age.

The HIV epidemic is an ever-present threat to sex workers and it has now been added to by COVID-19.  HIV, though does not spread through the air and can be prevented by using protection while engaging in sexual intercourse.  HIV can also be treated through the use of antiretroviral therapy (ART).  While it does not completely cure patients, it does enable them to live long and healthy lives.

 

Measures taken worldwide to protect sex workers

Germany legalised sex work in 2002 and has over 200,000 practising sex workers.  The government ordered the closure of all brothels and other ‘non-essential’ businesses such as clubs and bars on the 14th of March.  Susanne Wilp, the spokesperson for the Association of Erotic and Sexual Services Providers, states that business has gone down by 90% and due to their lack of income, they face homelessness.  A similar fate is being faced by sex workers in Amsterdam, where sex work is also legal.

Japan has allowed sex workers to apply for governmental aid in some cases.  However, the requirements for applications are rigid and will force workers to ‘out’ themselves to their communities.  Employers are eligible for subsidies, if their employees have to stay home to care for children during school closures, and sex workers can also receive cash handouts.  (Though the requirements do not clearly state whether the handout is for those who have lost a portion of their income or those who have been dismissed entirely.)  The rigid rules require workers to show proof of income, which is difficult to show as they are usually paid under the table.  Many sex workers do not report their occupation or entire income on their tax returns due to a fear of repercussions and a sense of stigma.  Admitting non-disclosure of income could lead to its own set of consequences.

Thailand has made sex workers eligible for grants in the government’s pandemic relief package and the Malaysian government is providing housing and monthly remuneration for the homeless; most of whom are sex workers.  These workers have to hide their occupation to receive the benefits as sex work is illegal in Malaysia despite being practised widely.

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The Way Forward

Taking sex work online is one way for workers to protect themselves during the pandemic.  This is done through photos, videos, video conferencing, and phone sex.  However, this kind of work has its limitations as well.  Workers may not have the required equipment or technical know-how to facilitate work this way.  Workers with an existing base of online followers find it easier to monetize their online services.  In addition, posting online may compromise the privacy of workers who may not want to reveal the nature of their work to family and friends.  Performing online may also not be a viable solution for workers with children and families at home.  A lack of consistent internet access may also hinder the ability to perform online.  Moreover, workers earn less working online and laws are not designed to protect these workers from privacy breaches and dangerous clients they could encounter as a result of working online.

UNAIDS and the Global Network of Sex Work Projects have called on countries to take action to protect the health and human rights of sex workers.  These measures should include access to national social security schemes, unemployment benefits and financial aid, providing healthcare services to migrant sex workers, appropriating emergency housing for homeless sex workers, halting prosecution and arrests for all sex work-related activities, ending the use of criminal law, promoting COVID-19 testing and providing visa extensions to migrant sex workers.

Sex workers need more allies. Global bodies such as Amnesty International and the World Health Organisation support their demands for legalization and decriminalisation.  Sex worker rights should matter to everyone who cares about gender inequality, migration, public health or poverty.  The need to protect sex workers during this pandemic is incredibly important as they are one of the most marginalised groups in society. Sex workers must be included in the decision-making process when it comes to legislation and programmes that can impact them.  They should have the right to work safely and on their terms and this includes protection during a world-wide pandemic.

 

ABOUT THE AUTHOR

Astha Madan Grover - Photo (1)Astha is a second-year law student at the National University of Juridical Sciences, Kolkata.  She has a keen interest in public policy, gender law, and public health.

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