Rightism, Reasonableness and Review: Section 377A of the Penal Code and the Question of Equality – Article Two
(2022) 34 SAcLJ 529
In an article that was published recently, this author argued against the desirability of a “rightism” oriented approach towards construing fundamental liberties in general, fueled by values-based reasoning. In the context of broadly framed equality clauses, arguments for expansive readings of existing rights or declaration of new rights warranting stricter degrees of scrutiny are driven by the values of egalitarian liberalism. The nature of the reasonable classification test and its reasonableness as a mode of constitutional adjudication is also discussed, in the light of the interplay between constitutional principles like the separation of powers, rule of law and democracy, where rights are taken reasonably, balanced against competing norms and interests, rather than being taken “seriously” as Dworkinian trumps which valorise individual autonomy. This article continues the discussion and focuses upon the specificities of the Art 12 challenges towards the constitutionality of s 377A of the Penal Code (Cap 224, 2008 Rev Ed) (“s 377A”), engaging how legislative purpose retained in pre-Independence laws should be construed and arguing that scoping equality through the reasonable classification test remains appropriate within a communitarian polity. This test confides morally controversial questions with far-reaching social consequences to the legislative province where a holistic scrutiny of all issues may be afforded and political compromises made, as distinct from narrowly framed rights-based legal arguments before courts which may obscure broader implications of how changes to a law may affect competing rights, duties and public goods. The amendability of the Constitution, the wide-ranging reach of equality to any differentiating law, and constitutional principles of separation of powers, rule of law and democracy may be enlisted in defence of the reasonableness of the reasonable classification test, and the normative desirability of resisting the juristocratic path of rightism.