Tan Eng Hong v AG (2012) SGCA 45 is a case of immense significance and students of Constitutional Law will no doubt be referred to this case on the interpretation of Article 4 of our Constitution.
As much as there has been much talk about the ‘victory’ for the gay community in getting past the first hurdle in this attempt to have s.377A of the Penal Code declared void, the fact is that this Court of Appeal decision has already become a landmark in relation to Article 4. Whether the proceedings eventually lead to a declaration that s.377A is void or not, is something that we will have to wait and see.
The Article 4 issue
Interestingly, the specific issue of whether Art 4 can be relied on was not raised at the High Court and the AG raised this argument only on appeal at the Court of Appeal. So, thanks to the AG’s Chambers we now have an authoritative pronouncement on the application of Article 4.
What does Article 4 say?
This Constitution is the supreme law of the Republic of Singapore and any law enacted by the Legislature after the commencement of this Constitution which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.
The gist of the AG’s argument was that if a legislation enacted after 1965 were to be inconsistent with the Constitution, then that unconstitutional legislation can be declared to be void. But, where the offending legislation was already in existence before 1965, then Article 4 cannot be used to render the legislation void. Section 377A of the Penal Code is a colonial invention and if the AG’s argument was accepted, then all pre-independance laws will be immune from Constitutional challenge.
The Court of Appeal rejected this argument and upheld the principle of the Supremacy of the Constitution:
“The supremacy of the Constitution is necessary for the purposes of the Constitution to be protected as it ensures that the institutions created by the Constitution are governed by the rule of law, and that the fundamental liberties under the Constitution are guaranteed. Therefore, we find that the supremacy of the Constitution cannot be dependent on when a law was enacted: constitutional supremacy must apply equally both to laws which pre-date and laws which post-date the enactment of the Constitution “
A very literal reading of Article 4 of the Constitution would have led the Court of Appeal to a very different decision and the AG might have succeeded it immunising much of our laws from Cosntitutional control. Given that there has been no previous case in Singapore on this issue, the Court of Appeal surveyed several Malaysian cases (not entirely consistent decisions) and arrived at the conclusion that Art 4 applied to both pre-independance and post-independance laws. In the words of the Court:
“We thus find that the mere accident of vintage should not place an unconstitutional law which pre-dates the Constitution beyond the potency of Art 4”
Let us not underestimate the significance of what has happened. Gay men may not have gained a victory yet. Singaporeans, in general, definitely have.
(I have simplified the analysis of the Court in an attempt to highlight the significance of the case.)