In late August 2005, courts in Hong Kong and Fiji struck down their respective laws against homosexual sex. Like Singapore, Hong Kong and Fiji were once British colonies and the laws had similar origins, dating from Victorian England.

In a judicial review initiated by 20-year-old William Leung, Hong Kong High Court Justice Michael Hartmann said these laws are merely "disguised discrimination founded on a single basis sexual orientation."

They are "demeaning of gay men who are, through the legislation, stereotyped as deviant. The sections also constitute ... a grave and arbitrary interference with the right of gay men to self autonomy in the most intimate aspects of their private lives."

The Court ruled that these laws violated the Basic Law's guarantees of equality and privacy. The Basic Law is Hong Kong's constitution.

Prior to 1991, Hong Kong proscribed gay sex regardless of age, even if consensual and in private. However, as a result of an earlier suicide of a police inspector, who was believed to have been blackmailed for his homosexuality, the law was softened to apply only to males under 21 years old.

The plaintiff Leung argued that this was discriminatory, since heterosexual sex was legal for anyone aged 16 and above.

The judge agreed and declared the laws unconstitutional.

In Fiji, Thomas McCosker and Dhirendra Nadan were convicted in April this year under similar laws and sentenced to 2 years in jail. That their intimacy was completely consensual and occurred in McCosker's apartment was not in dispute.

In their appeal, their counsel argued that the laws on "offences against nature" and "gross indecency" violated Fiji's constitution, which forbids discrimination on grounds of sexual orientation (among other grounds), and at the same time guarantees the right to privacy.

High Court judge Justice Gerard Winter agreed, and overturned their convictions.

Hong Kong's case was considered noteworthy by many observers, as it pointed to the independence of the judiciary and set a good precedent for the justice system, now that Hong Kong is part of China.

The Court's decision was reported in some detail by major newspapers and online media around the world, including The New York Times, The San Francisco Chronicle, the BBC and The Age (Australia).

In Singapore, while 'Today' carried a two-sentence report, the Straits Times did not report on it at all, despite devoting 2 – 3 pages every day to news from China and Hong Kong.

One cannot help wondering why. Did the Straits Times think, unlike so many newspapers from leading cities, that the landmark case was insignificant, or was it necessary to deny its significance?

Another pertinent question is whether a similar Court decision is conceivable for Singapore, and in this regard, a quick look at our constitution and judicial history suggests it probably isn't.

Unlike the constitutions of Hong Kong and Fiji, Singapore's guarantees of rights are either very narrow or riddled with exemptions. Our "equal under the law" clause 12(1) appears to be either contradicted or else qualified by the non-discrimination clause 12(2), which effectively allows discrimination except solely on ground of religion, race, descent and place of birth.

Unlike the constitutions of Hong Kong and Fiji, Singapore's does not have a clause providing for the right of privacy.

As for judicial review, which was the route taken by William Leung to secure his rights in Hong Kong, in 40 years of independence, Singapore has not seen any successful challenge to any law on constitutional grounds.

On the contrary, there is an increasing tendency of the government to exclude more and more of their decisions from judicial review. For example, observers have noted that decisions of the Presidential Elections Committee regarding eligibility are not subject to judicial review. If one day, the Committee were to act arbitrarily, and issue no explanation for their decision, there is no recourse.

Singapore likes to boast about how efficient our justice system is, but as these instances show, there is something about the constitutions and justice systems of Hong Kong and Fiji that serves to lead and inspire where ours may not.

Do these ranking tables merely praise our justice system for its speediness? Do they leave unanswered the question: what quality of justice?

Return to Introduction