From Adrian Tan, President of The Law Society of Singapore:
Don't litigate.
I'm talking about asking a judge to change laws made by the legislature. I'm talking about that type of litigation.
Normally, if people are unhappy about a law made by their legislature, they ask their elected representatives to change the law.
Those representatives debate the law openly in the legislature. They discuss the views of the community, special interest groups and national policies affected by the law. If the law is repealed, it's because it is in the national interest.
That's democracy.
That's why, in many countries, when people want to effect change, they ask their elected representatives to do so. Doing it this way is the norm.
But in the United States, it’s common for people to ask the court to strike down laws passed by their elected representatives. There, litigation is used to fight social issues, such as abortion. The US has its own historical reasons for using the court in that way.
Let's be clear: when people ask a judge to strike down a law, they are expressing doubts about their own democratic process. They are saying that they don't trust their politicians, or their elections, or their legislative process. That's why they seek to effect social change through litigation.
But there are problems when people ask a judge to strike down a law passed by the legislature.
Problem 1: If a judge strikes down a law, it may affect other people who did not have a say in the decision.
Problem 2: A judge generally focuses on technical stuff, such as whether the law is constitutional. The judge typically won’t consider the wider, non-legal implications of striking down that law. That's not the judge's job.
This brings me to Section 377A of the Penal Code, which criminalises male homosexual conduct.
People have asked the court to strike down 377A. In the latest case, our highest court didn’t strike it down, but said that in future cases, it might do so.
In response, the Government said it will repeal 377A and pass laws to protect the definition of marriage. It will be done in Parliament.
That's a democratic way of changing the law. I made this point at a panel discussion on 377A (link below). I didn’t offer my personal views on 377A and marriage: that’s for another post.
But what if, after Parliament passes those laws about marriage, someone goes to court to challenge those laws? Well, Parliament can pass a law to say that those laws can't be challenged in court.
Well, what if someone goes to court to challenge that law that says that the law cannot be challenged in court? What if someone goes to court to challenge whether 377A should be repealed at all?
You see where I'm going with this?
We shouldn't adopt the US approach. We shouldn't ask the court to rule on social issues. We should effect social change through Parliament. The court isn't meant to be a surrogate Parliament.
We shouldn't import the tactics of the culture war from the United States into our country.
#law #society #lgbtq
