Supreme Court of Singapore passes up opportunity to decriminalise sex between men
Ong Ming Johnson v Attorney-General and other matters [2020] SGHC 63
Summary
In this case, Justice See Kee Oon of the Supreme Court of Singapore (the Court) declined to declare section 377A of the Penal Code (the Code), which criminalises acts of "gross indecency" – sex between consenting adult men - unconstitutional. Despite the law's origins under British colonial administration, the Court ultimately found that section 377A did not constitute an unlawful infringement on the rights of gay and bisexual men in modern day Singapore.
Facts
The case began as three separate claims brought by gay Singaporean men (together, the Applicants) who commonly sought a declaration that s 377A violates the Constitution of the Republic of Singapore (the Constitution). The Applicants consented for the three matters to be heard together.
Section 377A reads:
Outrages on decency
Any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to 2 years.
The Court was asked to consider whether s377A:
applies exclusively to non-penetrative homosexual activity which arises in the context of male sex work;
is subject to the presumption of constitutionality; and
violates Articles 9, 12, and 14 of the Constitution.
Judicial History
In 2015, the High Court dismissed a similar challenge against s 377A. The Court of Appeal subsequently affirmed this decision in Lim Meng Suang and another v Attorney-General and another appeal and another matter [2014] SGCA 53 (Lim Meng Suang), in which it held that section 377A:
was meant to address 'public morality', not male sex work specifically; and
covers both penetrative and non-penetrative sexual activity.
The Court decided that it was bound to adopt the conclusions reached in Lim Meng Suang in relation to the object and scope of s 377A, under the principle of stare decisis. However, the Court also stated that, even if it was not required to adopt Lim Meng Suang, it saw no reason to deviate from the Court of Appeal's reasoning and conclusions.
Decision
The Court decided against the Applicants on each point, and rejected their application on the following grounds.
(a) Scope of s 377A
The Applicants first sought to establish that s 377A only criminalised non-penetrative homosexual behaviour occurring in the course of sex work, and therefore any acts beyond this definition were not prosecutable. The Court disagreed. By applying principles of statutory interpretation established in Tan Cheng Bock v Attorney-General [2017] SGCA 50 (Tan Cheng Bock), the Court held that s 377A captures "all forms of male homosexual activity including penetrative and non-penetrative sex, whether in public or private and with or without consent". Furthermore, using the legislative material from the colonial era as an interpretative aid, the Court inferred that this construction aligned with the lawmakers' intention.
(b) Presumption of Constitutionality
In Singapore, a rebuttable presumption of constitutionality applies to laws which are subject to constitutional challenge. The Applicants attempted to establish that the presumption did not extend to s 377A, primarily because it was passed before the Constitution was implemented.
The Court of Appeal opined in Lim Meng Suang that the presumption is easier to overcome in relation to laws pre-dating Singapore's independence, because the pre-independence legislature would not have fully considered all views before enacting the laws concerned. Nevertheless, the Court held that the presumption of constitutionality applies strongly in the case of s 377A. In 2007, the Singapore Parliament debated the constitutionality of s 377A at length, and ultimately decided to preserve its inclusion in the Code. This discussion was found to sufficiently evidence the post-colonial legislature's acceptance of s 377A. Furthermore, the Court felt that Parliament was the most suitable body to ensure alignment between the interests of Singapore's citizens and the law, and that the Court should not intervene in this regard.
(c) Article 12 – Right to Equality Before the Law
The Applicants further asserted that the law contravened Article 12 of the Constitution, because it unlawfully discriminates against sex between men (as opposed to homosexual or heterosexual activity involving women) and because it targets conduct in private which does not harm public morals. Article 12 provides that "all persons are equal before the law and entitled to the equal protection of the law". The Court applied the reasonable classification test established in Tan Cheng Bock, which requires the Court to assess whether the demarcation of sexual conduct based on gender is so unreasonable as to be illogical and/or incoherent, having regard to the provision's purpose.
The Court rejected the Applicants' argument. It drew attention to Loh J's interpretation of the reasonable classification test from Lim Meng Suang, which affirmed that legislation that divides the population into specific classes is not inherently unlawful. Rather, the critical concern is that "like should be treated alike". The Court then found that it was neither illogical nor incoherent to omit sex between women from the provision's scope, because the purpose of s 377A was to safeguard public morals and reflect societal morality by specifically criminalising sex between men. Since the Parliament is the appropriate body to make determinations as to public morality, the courts should not bear responsibility for making such determinations. The Court also relied on the existence of distinctions between women and men throughout Singaporean law to justify his conclusion.
(d) Article 14 – Right to Freedom of Expression
The Applicants similarly argued that s 377A contravened Article 14 of the Constitution, which contains the rights of Singaporean citizens to freedom of speech and expression. The Applicants contended that private, consensual acts of sexual intimacy are a form of expression, and therefore could not be broadly restricted. However, the Court rejected this interpretation of the right to freedom of expression. The Court, referring to explanatory materials, concluded that Article 14 only protects verbal communication of an idea, opinion or belief, and therefore "expression" in the form of sex between men is not protected under Article 14.
(e) Article 9 – Right to Life and Personal Liberty
The Court was then asked to consider whether s 377A breached Article 9(1) of the Constitution, which states that "no person shall be deprived of his life or personal liberty save in accordance with law". The Applicants argued that sexual orientation is biologically determined and immutable, and therefore the criminalisation of sex between men arbitrarily punishes an individual's ingrained identity in violation of Article 9(1). The Court accepted expert evidence on the scientific determinants of homosexuality to decide this point. It found that there is no definitive consensus that homosexuality is caused by genetic determinants alone, and was thus disinclined to rule in favour of the Applicants. In addition, it held that because s 377A only criminalised “acts of homosexuality”, not people of a particular sexual orientation, it was therefore compatible with Article 9(1).
Finally, the Applicants asserted that s 377A had no legal effect, because it had fallen into disuse. The Singapore Parliament has previously publicised their reluctance to prosecute offences under s 377A where contravening acts occur in private between consenting adults. The Applicants argued that, as a result, s 377A had become redundant, and therefore could not be considered a 'law' for the purposes of Article 9(1). The Court refuted this position. Despite Parliament's unwillingness to enforce s 377A, the Court found that the provision still safeguards public morality by illustrating societal disapproval of sex between men, and provides a mechanism whereby indecent behaviour which involves other elements of illegality (such as paedophilia) can be prosecuted.
Commentary
This case is the latest in a long line of decisions confirming Singapore's judiciary as a poor protector of the rights and freedoms of LGBT+ people. While section 377A is no longer regularly enforced, it is an ongoing threat to the safety and liberty of gay and bisexual men in Singapore, and a symbol of the discrimination and lack of acceptance the Singaporean LGBT+ community continues to face. In addition to s 377A, Singapore refuses to give legal recognition to same-sex relationships, prohibits same-sex couples from adopting children, and provides LBGT+ people with few protections against discrimination.
Section 377A is also contrary to international human rights laws. Article 17(1) of the International Covenant on Civil and Political Rights (ICCPR) states that "No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation". The UN Human Rights Committee has confirmed that Article 17(1) protects private consensual sexual activity. However, Singapore has so far refused to sign the ICCPR, and remains the only highly-developed nation to do so.
In Australia, sex between consenting adult men have been decriminalised in all States and Territories since 1997. The last government to do so was Tasmania, which has since publicly apologised to those who were affected by the law. In the period leading up to its decriminalisation, advocates in Australia criticised Parliament for its failure to align the legislation with modern social standards. While there is much progress for Australia still to make, this decision demonstrates that Singapore remains far behind Australia and accepted international standards in respect of legal protections and acceptance for individuals regardless of sexual orientation.
Read the full decision here.