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Gay Adoption and Judicial Decision Making, Singapore Style

Published

6 years ago

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by Remy Choo Zheng Xi, Peter Low & Choo LLC

UKM vs Attorney-General, the recent “gay adoption” case, is a study in difficult judicial decision making, Singapore style.

In summary, a three Judge bench of the Singapore High Court allowed a Singaporean gay father’s appeal to adopt his biological son conceived of a surrogate mother. The judgment was written by Chief Justice Sundaresh Menon.

The profundity of the effect of the judgment is difficult to overstate: with the stroke of a pen (and 145 pages of the written word), the future of a closely-knit stable family unit has been re-ordered the better. After all, how can you quantify the value of the sense of relief and comfort conveyed by a hug, “a little longer and a little tighter”?

However, it is equally difficult to overstate the narrowness of the basis of the decision.

Despite (or perhaps because of) the boldness of the outcome in the case before it, the Court emphatically asserted and developed its theory of judicial restraint, i.e. of not second-guessing the Executive and Legislature in their decision-making more generally.

So, in one sense, the case is bold. The Judges bucked public policy (hostility to the formation of same-sex family units) to uphold the welfare of a Child born to a gay man. The judgment effectively lets the father of the Child bring his son up in a loving family unit with his long-term same-sex partner.

However, those tempted to cheer the judgment as a paradigm of judicial activism should moderate their expectations. The judgment also re-affirms that legislative intent is front and centre of the Court’s decision-making process more broadly.

In the judgment, the Court weighed the purpose of the Adoption of Children Act in one scale and asked: what is in the best interest of the welfare of the Child?

In the other scale, the Court measured out the absence of legislative policy against surrogacy and public policy against the formation of same-sex family units.

Ultimately, the welfare of the child weighed more heavily in the Court’s mind.

Interpretation of the Adoption of Children Act

In UKM, the main question as framed by the Court was whether an Adoption Order would be in the best welfare of the Child under Adoption of Children Act.

The “pivot” on which the case turned is found in paragraph 60 of the judgment: during oral arguments, the Court invited lawyers for the Government to address the Court on the Child’s prospects of remaining in Singapore in the long term, irrespective of the adoption proceedings.

The Government was unable to respond because counsel did not have instructions. As a result, the Court found that there was uncertainty over whether the Child could remain in Singapore if the Adoption Order were not granted.

Following from the Government’s position, the Court reasoned that if granting the Adoption Order could increase the Child’s chances of remaining in Singapore with his family in the long term, then the Adoption Order should be granted.

Reviewing the relevant citizenship provisions in the Constitution, the Court held that if the Adoption Order were granted, the Child could at least be considered for citizenship by descent under Article 124 (1) of the Constitution. If the Adoption Order were not granted, the Child would have to apply under Article 124 (2), which would require “special circumstances” before citizenship were granted.

Apart from the citizenship issue, the Court chose not to give significant weight to the following three other reasons advanced by the father: –

  1. That adoption would have a transformative effect on the wellbeing of the Child as it would confer “legitimacy” on the child;
  2. That adoption would conclusively sever any residual rights the surrogate mother of the child may have; and
  3. Benefits that adoption may confer in a situation where either parent died without leaving a will.

The Court also chose not to give any weight to an argument by the AG that the child might face social stigmatisation and confusion because he was being brought up in an “unconventional family” in the context of a “predominantly conservative society in Singapore”.

In deciding UKM, the Court was very careful to emphasize that their decision on the Adoption Order was made “on the particular facts of this case”.

“Public policy” and Judicial decision-making

While the outcome of this particular case is worth celebrating, the broader significance of the judgment is more conventional and in line with more conservative Singaporean judicial thought.

In a nutshell, the broader message arising out of this judgment is that if a piece of legislation involves a socio-economic or legal issue, the Courts are very unlikely to second guess the policy approach of the Executive or Legislature.

The message from the Court is clear: when it comes to matters of public policy, the role of the Court is to, in the words of the Chief Justice “expound, and not to expand”. In case you don’t get the memo, the judgment is emphatic: “The courts are not the vanguard of social reform” (emphasis mine).

Where the resolution of a legal issue involves legislation of a socio-economic or legal nature, the Chief Justice Menon affirms that “the court should, as a general rule, be very cautious about resting its decision on public policy”.

The Chief Justice goes on to explain that the Singapore Courts would be “very slow to decide a case based on any adaptation of the legislative regime founded on what they themselves happen to think about the asserted public policy, whether socio-economic or legal, even if the relevant legislation is revealed to be lacking in some respect”.

As demonstrated earlier, in the balancing exercise, the conservative approach to interpreting legislative intention by the Courts worked to the father’s advantage in this case.

Reviewing legislative debates, the Court found itself unable to see a clear public policy against surrogacy.

In summary, the way the Court was able to thread the needle and rule in favour of the father was: –

  1. To find that it was in the welfare of the child to make the Adoption Order;
  2. To determine that there was no public policy against surrogacy;
  3. There is a public policy against formation of same-sex family units;
  4. But on balance, the welfare of the needs to be placed first.

Progressive Enough?

UKM is a judgment that, in many ways, is as notable for what it is not rather than what it actually is.

UKM is not a constitutional case, i.e. it is not a case involving a fundamental liberty protected under the Constitution such as the right to equal protection under the law (Article 12) or the right to life and liberty (Article 9).

To the extent that anyone reading UKM may want to crystal-ball gaze into what the Courts’ approach may be to a constitutional question (for instance, s377A), looking for clues in the judgment may prove futile. Indeed, the Chief Justice specifically said it was not making any comment on the issue of S377A in light of one or more pending cases.

It is also important to highlight that although the judgment identifies certain policies that are clearly discriminatory against LGBTI persons, the Judgment refuses to make any value judgment about the correctness of such policies.

Ultimately, UKM is a judgment that, in a phrase used by the Chief Justice, “may not be progressive enough for some” but “may be too progressive for others”.

The full judgment can be found here: https://www.supremecourt.gov.sg/docs/default-source/module-document/judgement/ukm-v-attorney-general.pdf

The above post is first published as a Facebook note by Mr Choo and reproduced with permission.

 

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Commentaries

Lim Tean criticizes Govt’s rejection of basic income report, urges Singaporeans to rethink election choices

Lim Tean, leader of Peoples Voice (PV), criticizes the government’s defensive response to the basic living income report, accusing it of avoiding reality.

He calls on citizens to assess affordability and choose MPs who can truly enhance their lives in the upcoming election.

Published

1 year ago

on

15 September 2023

By

SINGAPORE: A recently published report, “Minimum Income Standard 2023: Household Budgets in a Time of Rising Costs,” unveils figures detailing the necessary income households require to maintain a basic standard of living, using the Minimum Income Standard (MIS) method.

The newly released study, spearheaded by Dr Ng Kok Hoe of the Lee Kuan Yew School of Public Policy (LKYSPP) specifically focuses on working-age households in 2021 and presents the latest MIS budgets, adjusted for inflation from 2020 to 2022.

The report detailed that:

  • The “reasonable starting point” for a living wage in Singapore was S$2,906 a month.
  • A single parent with a child aged two to six required S$3,218 per month.
  • Partnered parents with two children, one aged between seven and 12 and the other between 13 and 18, required S$6,426 a month.
  • A single elderly individual required S$1,421 a month.
  • Budgets for both single and partnered parent households averaged around S$1,600 per member. Given recent price inflation, these figures have risen by up to 5% in the current report.

Singapore Govt challenges MIS 2023 report’s representation of basic needs

Regrettably, on Thursday (14 Sept), the Finance Ministry (MOF), Manpower Ministry (MOM), and Ministry of Social and Family Development (MSF) jointly issued a statement dismissing the idea suggested by the report, claiming that minimum household income requirements amid inflation “might not accurately reflect basic needs”.

Instead, they claimed that findings should be seen as “what individuals would like to have.”, and further defended their stances for the Progressive Wage Model (PWM) and other measures to uplift lower-wage workers.

The government argued that “a universal wage floor is not necessarily the best way” to ensure decent wages for lower-wage workers.

The government’s statement also questions the methodology of the Minimum Income Standards (MIS) report, highlighting limitations such as its reliance on respondent profiles and group dynamics.

“The MIS approach used is highly dependent on respondent profiles and on group dynamics. As the focus groups included higher-income participants, the conclusions may not be an accurate reflection of basic needs.”

The joint statement claimed that the MIS approach included discretionary expenditure items such as jewellery, perfumes, and overseas holidays.

Lim Tean slams Government’s response to basic living income report

In response to the government’s defensive reaction to the recent basic living income report, Lim Tean, leader of the alternative party Peoples Voice (PV), strongly criticizes the government’s apparent reluctance to confront reality, stating, “It has its head buried in the sand”.

He strongly questioned the government’s endorsement of the Progressive Wage Model (PWM) as a means to uplift the living standards of the less fortunate in Singapore, describing it as a misguided approach.

In a Facebook video on Friday (15 Sept), Lim Tean highlighted that it has become a global norm, especially in advanced and first-world countries, to establish a minimum wage, commonly referred to as a living wage.

“Everyone is entitled to a living wage, to have a decent life, It is no use boasting that you are one of the richest countries in the world that you have massive reserves, if your citizens cannot have a decent life with a decent living wage.”

Lim Tean cited his colleague, Leong Sze Hian’s calculations, which revealed a staggering 765,800 individuals in Singapore, including Permanent Residents and citizens, may not earn the recommended living wage of $2,906, as advised by the MIS report.

“If you take away the migrant workers or the foreign workers, and take away those who do not work, underage, are children you know are unemployed, and the figure is staggering, isn’t it?”

“You know you are looking at a very substantial percentage of the workforce that do not have sufficient income to meet basic needs, according to this report.”

He reiterated that the opposition parties, including the People’s Voice and the People’s Alliance, have always called for a minimum wage, a living wage which the government refuses to countenance.

Scepticism about the government’s ability to control rising costs

In a time of persistently high inflation, Lim Tean expressed skepticism about the government’s ability to control rising costs.

He cautioned against believing in predictions of imminent inflation reduction and lower interest rates below 2%, labeling them as unrealistic.

Lim Tean urged Singaporeans to assess their own affordability in these challenging times, especially with the impending GST increase.

He warned that a 1% rise in GST could lead to substantial hikes in everyday expenses, particularly food prices.

Lim Tean expressed concern that the PAP had become detached from the financial struggles of everyday Singaporeans, citing their high salaries and perceived insensitivity to the common citizen’s plight.

Lim Tean urges Singaporeans to rethink election choices

Highlighting the importance of the upcoming election, Lim Tean recommended that citizens seriously evaluate the affordability of their lives.

“If you ask yourself about affordability, you will realise that you have no choice, In the coming election, but to vote in a massive number of opposition Members of Parliament, So that they can make a difference.”

Lim Tean emphasized the need to move beyond the traditional notion of providing checks and balances and encouraged voters to consider who could genuinely improve their lives.

“To me, the choice is very simple. It is whether you decide to continue with a life, that is going to become more and more expensive: More expensive housing, higher cost of living, jobs not secure because of the massive influx of foreign workers,” he declared.

“Or you choose members of Parliament who have your interests at heart and who want to make your lives better.”

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Political observers call for review of Singapore’s criteria of Presidential candidates and propose 5 year waiting period for political leaders

Singaporean political observers express concern over the significantly higher eligibility criteria for private-sector presidential candidates compared to public-sector candidates, calling for adjustments.

Some also suggest a five year waiting period for aspiring political leaders after leaving their party before allowed to partake in the presidential election.

Notably, The Workers’ Party has earlier reiterated its position that the current qualification criteria favor PAP candidates and has called for a return to a ceremonial presidency instead of an elected one.

Published

1 year ago

on

5 September 2023

By

While the 2023 Presidential Election in Singapore concluded on Friday (1 September), discussions concerning the fairness and equity of the electoral system persist.

Several political observers contend that the eligibility criteria for private-sector individuals running for president are disproportionately high compared to those from the public sector, and they propose that adjustments be made.

They also recommend a five-year waiting period for aspiring political leaders after leaving their party before being allowed to participate in the presidential election.

Aspiring entrepreneur George Goh Ching Wah, announced his intention to in PE 2023 in June. However, His application as a candidate was unsuccessful, he failed to receive the Certificate of Eligibility (COE) on 18 August.

Mr Goh had expressed his disappointment in a statement after the ELD’s announcement, he said, the Presidential Elections Committee (PEC) took a very narrow interpretation of the requirements without explaining the rationale behind its decision.

As per Singapore’s Constitution, individuals running for the presidency from the private sector must have a minimum of three years’ experience as a CEO in a company.

This company should have consistently maintained an average shareholders’ equity of at least S$500 million and sustained profitability.

Mr Goh had pursued eligibility through the private sector’s “deliberative track,” specifically referring to section 19(4)(b)(2) of the Singapore Constitution.

He pointed out five companies he had led for over three years, collectively claiming a shareholders’ equity of S$1.521 billion.

Notably, prior to the 2016 revisions, the PEC might have had the authority to assess Mr Goh’s application similarly to how it did for Mr Tan Jee Say in the 2011 Presidential Election.

Yet, in its current formulation, the PEC is bound by the definitions laid out in the constitution.

Calls for equitable standards across public and private sectors

According to Singapore’s Chinese media outlet, Shin Min Daily News, Dr Felix Tan Thiam Kim, a political analyst at Nanyang Technological University (NTU) Singapore, noted that in 2016, the eligibility criteria for private sector candidates were raised from requiring them to be executives of companies with a minimum capital of S$100 million to CEOs of companies with at least S$500 million in shareholder equity.

However, the eligibility criteria for public sector candidates remained unchanged. He suggests that there is room for adjusting the eligibility criteria for public sector candidates.

Associate Professor Bilver Singh, Deputy Head of the Department of Political Science at the National University of Singapore, believes that the constitutional requirements for private-sector individuals interested in running are excessively stringent.

He remarked, “I believe it is necessary to reassess the relevant regulations.”

He points out that the current regulations are more favourable for former public officials seeking office and that the private sector faces notably greater challenges.

“While it may be legally sound, it may not necessarily be equitable,” he added.

Proposed five-year waiting period for political leaders eyeing presidential race

Moreover, despite candidates severing ties with their political parties in pursuit of office, shedding their political affiliations within a short timeframe remains a challenging endeavour.

A notable instance is Mr Tharman Shanmugaratnam, who resigned from the People’s Action Party (PAP) just slightly over a month before announcing his presidential candidacy, sparking considerable debate.

During a live broadcast, his fellow contender, Ng Kok Song, who formerly served as the Chief Investment Officer of GIC, openly questioned Mr Tharman’s rapid transition to a presidential bid shortly after leaving his party and government.

Dr Felix Tan suggests that in the future, political leaders aspiring to run for the presidency should not only resign from their parties but also adhere to a mandatory waiting period of at least five years before entering the race.

Cherian George and Kevin Y.L. Tan: “illogical ” to raise the corporate threshold in 2016

Indeed, the apprehension regarding the stringent eligibility criteria and concerns about fairness in presidential candidacy requirements are not limited to political analysts interviewed by Singapore’s mainstream media.

Prior to PE2023, CCherian George, a Professor of media studies at Hong Kong Baptist University, and Kevin Y.L. Tan, an Adjunct Professor at both the Faculty of Law of the National University of Singapore and the NTU’s S. Rajaratnam School of International Studies (RSIS), brought attention to the challenges posed by the qualification criteria for candidates vying for the Singaporean Presidency.

In their article titled “Why Singapore’s Next Elected President Should be One of its Last,” the scholars discussed the relevance of the current presidential election system in Singapore and floated the idea of returning to an appointed President, emphasizing the symbolic and unifying role of the office.

They highlighted that businessman George Goh appeared to be pursuing the “deliberative track” for qualification, which requires candidates to satisfy the PEC that their experience and abilities are comparable to those of a typical company’s chief executive with shareholder equity of at least S$500 million.

Mr Goh cobbles together a suite of companies under his management to meet the S$500m threshold.

The article also underscored the disparities between the eligibility criteria for candidates from the public and private sectors, serving as proxies for evaluating a candidate’s experience in handling complex financial matters.

“It is hard to see what financial experience the Chairman of the Public Service Commission or for that matter, the Chief Justice has, when compared to a Minister or a corporate chief.”

“The raising of the corporate threshold in 2016 is thus illogical and serves little purpose other than to simply reduce the number of potentially eligible candidates.”

The article also touches upon the issue of candidates’ independence from political parties, particularly the ruling People’s Action Party (PAP).

It mentions that candidates are expected to be non-partisan and independent, and it questions how government-backed candidates can demonstrate their independence given their previous affiliations.

The Workers’ Party advocate for a return to a ceremonial presidency

It comes as no surprise that Singapore’s alternative party, the Workers’ Party, reaffirmed its stance on 30 August, asserting that they believe the existing qualifying criteria for presidential candidates are skewed in favour of those approved by the People’s Action Party (PAP).

They argue that the current format of the elected presidency (EP) undermines the principles of parliamentary democracy.

“It also serves as an unnecessary source of gridlock – one that could potentially cripple a non-PAP government within its first term – and is an alternative power centre that could lead to political impasses.”

Consistently, the Workers’ Party has been vocal about its objection to the elected presidency and has consistently called for its abolition.

Instead, they advocate for a return to a ceremonial presidency, a position they have maintained for over three decades.

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