Two approaches to interpreting the Constitution
In his letter “Constitution should be based on idea of civil association, not consensus” (Nov 6), the writer advocated a Constitution based on the principle of free and equal citizenship, instead of public consensus.
In his letter “Constitution should be based on idea of civil association, not consensus” (Nov 6), the writer advocated a Constitution based on the principle of free and equal citizenship, instead of public consensus.
This debate raises an interesting issue: How should our Constitution be interpreted? Its use of ambiguous words such as “life”, “personal liberty” (Article 9) and “equal” (Article 12) leaves significant room for interpretation. These words concern contested concepts that can be interpreted for or against the constitutional validity of Section 377A of the Penal Code.
There are two possible approaches to interpretation. First, a court may look at the Article’s plain text to decipher the Constitution framers’ intention.
This was the Court of Appeal’s approach, as evidenced by its statement that “within the prohibited grounds of discrimination delineated in Art 12(2), there is no reference to ‘sex’, ‘sexual orientation’ or ‘gender’”. The court stated also that “there is nothing precluding a legislature from amending the Constitution accordingly”.
The second approach is to turn to universal principles of morality, such as free and equal citizenship, taking guidance from theorists who have expounded upon these.
If the court had interpreted Article 12 on this basis, Section 377A could have been struck down for discriminating against homosexual males.
The latter approach, though, is not without problems.
First, do these universal principles even exist? If so, must our Constitution be guided by the principle of free and equal citizenship? Why not other principles?
Second, in Singapore’s pluralistic society, who should decide what these principles are? Leaving this decision to Parliament runs the risk of tyranny of the majority and the nebulousness of public consensus.
There is no easy solution.
Adding new phrases into the Constitution will not resolve these problems. Instead, it would gloss over the question at the heart of the debate: Whether universal principles of morality or the framers’ intent should form the basis of our Constitution.
This can guide the courts in interpreting the Constitution in future.
Failing to realise that a choice can be made may favour the first approach to interpretation.
After all, it is often easier to rely on written text than on unwritten principles of morality.