Rightism, Reasonableness and Review: Section 377A of the Penal Code and the Question of Equality

Abstract

This paper examines the article 12 equality jurisprudence with specific reference to the case law and legal discourse over the constitutionality of section 377A of the Penal Code (Cap 224, 2008 Rev Ed). This implicates interpretive method, construing legislative purpose in pre-Independence laws which have been legislatively debated and retained post-Independence, issues related to interpreting constitutional rights, and the judicial role in the face of morally contentious legal questions. The prevailing test of ‘reasonable classification’ and the accompanying presumption of constitutionality has been criticized in two primary ways. First, that it has been misapplied; second, that it constitutes deferential review, in according primary weight to the ‘reasonableness’ of Parliament and political constitutionalism, which detractors urge should be replaced by a more robust test of judicial scrutiny. The article contests the argument that section 377A fails to satisfy the reasonable classification test, particularly because it serves no purpose or an inadequate purpose given its original rationale. It argues that calls to revise the reasonable classification test in favor of a preferred vision of substantive equality constitute an unwelcome invitation to ‘rightism’ and a ‘living tree’ approach to judicial review, which trades in value arguments based on an egalitarian liberal theory of the good. It argues that scoping equality through the reasonable classification test remains appropriate within a communitarian polity, given the constitutional roles of the courts and Parliament, the wide-ranging reach of equality to any differentiating law, constitutional amenability and what might be described as a ‘moral questions’ doctrine, which informs a calibrated approach to judicial review.