![]() However, that process was abruptly disrupted by the Supreme Court’s decision in Roe v Wade in 1973, in which the court held that the Due Process Clause in the Fourteenth Amendment to the United States Constitution provided a “right to privacy” that protected a pregnant woman’s right to choose whether to have an abortion. In the 1970s, state legislatures in the United States seemed to be leaning towards the gradual liberalisation of abortion statutes. One need only consider the outsized consequences of the decision of the Supreme Court of the United States in Roe v Wade 410 US 113 (1973) (“ Roe v Wade”) to comprehend this point. The political process, in contrast, seeks to mediate – it strives for compromises and consensus in which no one side has to lose all.Ħ Second, even those who place a higher premium on outcomes than processes have every reason to be invested in having social controversies resolved by robust public debate rather than by litigation. And this is so for good reason, because litigation is a zero-sum, adversarial process with win-lose outcomes. ![]() However sub-optimally some may think politics performs that function, the courts can never discharge that function simply because it is not their constitutional role to mediate such differences in society. ![]() The single biggest advantage of the political process – in fact, its raison d’ ê t re – is its ability to accommodate divergent interests and opinions (see likewise Trials of the State at p 65). Litigation, on the other hand, is “not a consultative or participatory process” but “an appeal to law” (see Jonathan Sumption, Trials of the State: Law and the Decline of Politics (Profile Books Ltd, 2019) (“ Trials of the State”) at p 65). At the heart of politics lies the project of democratic engagement, as politicians aim to persuade voters by appealing to hearts and minds. Politics seems the more obvious choice than litigation for debating and resolving highly contentious societal issues. Our judgment is thus equally applicable to the current s 377A of the Revised PC and Arts 9, 12 and 14 of the Revised Constitution.)Ĥ One may well ask whether litigation is, in fact, the optimal way to resolve such differences. Likewise, the present Arts 9, 12 and 14 of the Constitution of the Republic of Singapore 1965 (2020 Rev Ed) (“the Revised Constitution”) are in pari materia with the corresponding Articles of the Constitution that were in force at the material time. (For completeness, we note that the current s 377A of the Penal Code 1871 (2020 Rev Ed) (“the Revised PC”) is in pari materia with s 377A of the PC, which was the version of the provision that was in force at the time of the appellants’ respective applications and the subject of the present constitutional challenges. On both sides of this divide, the continued existence of s 377A in our statute books has taken on particular importance because of what it is thought to signify. What rights the appellants claim to be fundamental, others view as controversial what is to the appellants deeply personal and even definitive of their identity, others regard as offensive. Yet, for a law that has come to be intensely personal to many for what it means both practically and symbolically, it has also assumed an exceedingly public dimension. Although s 377A is a law that, on its face, purports to do no more than prohibit particular sexual acts, its penalty and purpose carry more profound consequences, touching upon “the most private human conduct” and often in the context of the most private relationships (see Lawrence et al v Texas 539 US 558 (2003) at 567). ![]() The appellants contend that s 377A is unconstitutional by reason of its inconsistency with Arts 9, 12 and/or 14 of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”). 1 These appeals concern the constitutionality of s 377A of the Penal Code (Cap 224, 2008 Rev Ed) (referred to hereafter as “s 377A” and “the PC” respectively), an issue which is before this court not for the first time.
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