A single judge of the Singapore High Court has held Section 377A criminalizing “gross indecency” of the Penal Code to be constitutionally valid. The effect of this judgment is to continue the persecution of gay men. Coming as it does close in the heels of the decision of the Supreme Court of India in Navtej Johar which held Section 377 of the Indian Supreme Court to be unconstitutional, the judgment disappoints the LGBT community worldwide. The author argues that the outcome is determined by the Courts self-perception of its role is limited to a literal interpretation of the text of the Constitution rather than a meaningful role of interpreting the Constitution in the light of values of dignity and substantive equality.
THE Singapore High Court last month rejected the challenge to Section 377A of the Singapore Penal Code (s.377A). The judgment by Justice See Kee Oon, in the case between Ong Ming Johnson And Attorney-General,  SGHC 63, thus dashed the hopes of the gay community there, at least for some time, to live life with dignity as full citizens of that country. This is for the second time when the court dismissed the constitutional challenge to s. 377A.
An earlier challenge to s.377A had also failed before the High Court, whose order was challenged in the Court of Appeal which had also rejected in Lim Meng Suang and another v Attorney-General and another appeal and another matter  1 SLR 26 (“Lim Meng Suang CA”). The Singapore High Court can take up a case in its original jurisdiction on an originating Summons. A decision by the High Court is appealable to the Court of Appeal. The Court of Appeal is the final court. There is no separate Supreme Court like in our system. Together, the High Court and the Court of Appeal constitute the Supreme Court of Singapore.
The second set of challenges, through Originating Summons, were filed by three gay men, Ong Ming Johnson, a 43-year-old disc jockey and producer; Roy Tan Seng Kee, a 61-year-old retired general practitioner; and 42- year-old Bryan Choong Chee Hoong, the former executive director of LGBT non- profit organisation, Oogachaga in the High Court of Singapore.
S 377 of the Singapore Penal Code, was borrowed from and was identical to the Indian S. 377 held the field for a long time. In 1938[i], s. 377A also introduced into the Penal Code, dealing with gross indecency amongst men. S.377A provided as follows:-
“377A. 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.”
In 2007 s. 377 was deleted from the Singapore Penal Code. However, s. 377A continued.
The Government, through the Attorney General, had argued that Lim Meng Suang CA was binding on the court and therefore, the Summons should not be entertained.
Challenge-based on Article 12(1) rejected
In Lim Meng Suang CA, the Court of Appeal had held that Article 12 (akin to our Article 14) was not violated as it satisfied the reasonable classification test. The differentia underlying the classification made in s 377A was intelligible and the classification made by s 377A which differentiates male homosexuals as a class also had a rational relation to the purpose of s 377A. The court also found that the purpose of s 377A is not an illegitimate purpose which infringed the guarantee of equal protection of the law under Art 12. There was an acceptable basis for the purpose of s 377A as formulated by Parliament, even if this purpose only related to male homosexual conduct and not female homosexual conduct. Therefore, s 377A did not contravene Art 12 and is not void for unconstitutionality.
The Plaintiffs, however, argued that their challenge to s.377A is reconsidered on the grounds that (1) the parties in Lim Meng Suang CA did not put forward arguments on the concept of human dignity, which would affect the constitutionality of s 377A; (2) after the decision in Lim Meng Suang CA, there had been a comprehensive consensus that sexual orientation is immutable; (3) that the personal liberty of homosexual men continued to be potentially affected by s 377A; and (4) that international judicial developments suggested that Lim Meng Suang CA should be departed from.
IN Indian when Navtej Johar, challenging the validity of Section 377 was heard, the judgments in NALSA, wherein transgender as a third gender on the basis of self-identification was specifically recognised and Puttaswamy, wherein the Court had specifically ruled that Koushal had wrongly decided on privacy, had already laid the ground for overturning s. 377 IPC. On the other hand, the second set of challenges before the Singapore High Court had the huge obstacle of Lim Meng Suang CA to overcome.
It was emphasised by the Plaintiffs that the Court of Appeal came to the conclusion it did in Lim it did so without the benefit of “fresh contemporaneous colonial-era material” (official reports which were not available to the Plaintiffs in Lim Meng Suang CA) and “subsequent developments.” (the notion of immutability of homosexuality which according to the Plaintiffs had been accepted post-Lim Meng Suang CA) which were not available at the time the decision was made.
In accordance with the practice of the Singapore High Court the hearing of the Originating Summons was not in open court but in Chambers. However, as the judge had indicated that he would give reasons, the same were provided in the judgment.
The Plaintiffs challenge to s. 377A was on the grounds of violation of Articles 9(1), 12 and 14 of the Singapore Constitution, which are similar to our Articles 21 14 and 19 respectively as set out in the following table:-
Plaintiffs arguments and the court’s responses
377A targeted male prostitution, commercial sex according to contemporaneous material
One of the man arguments of the Plaintiffs was that the legislative purpose of the colonial legislature in enacting s 377A in 1938 was to target the mischief of “rampant male prostitution” and/or commercial sex and that s 377A was not intended to criminalise penetrative sex, which was dealt with by S. 377. There was no overlap between S. 377 and S. 377A. They covered separate fields. Once s. 377 had been deleted there was no question of criminalizing penetrative sex amongst males.
The judge held that these issues had been dealt with by the Court of Appeal in Lim Meng Suang CA, which had held that s. 377 A was amenable to broader interpretation. It was (a) of general application, and (b) intended to safeguard public morals to enforce a stricter standard of societal morality. Sources of legislative material indicated this. However, the Plaintiffs wanted to rely on other materials, which had been recently declassified and were not available to the Plaintiffs in Lim Meng Suang CA. The judge held that these other materials were not legislative materials but he took the Plaintiffs’ case at its highest and proceeded to examine each of these materials on the assumption that they could all be taken into account.
The judge held that the Moses report reflected the recognised problem of colonial civil servants engaging in homosexual activities with boys… this did not necessarily limit its scope… to only commercial and non-penetrative male homosexual activity as contended by the Plaintiffs.
The McKnight Letter, according to the judge, urged the authorities to introduce greater oversight over prostitution in general, and not solely over male prostitution.
The judge further noted that S. 377 A was based on the s 11 of the 1885 UK Act. Therefore the plain intent must have been that all acts of gross indecency covered by the UK Act would be included, so that a consistent and harmonious set of laws would govern all such conduct in the UK and in Singapore.
He further noted that in the Wolfenden Report, the Committee on Homosexual Offences and Prostitution in the UK had observed in 1957 that while “gross indecency” is not statutorily defined, it appears “to cover any act involving sexual indecency between two male persons.”
He observed that the remarks of Lord Macaulay in the Works of Lord Macaulay: Speeches – Poems & Miscellaneous reflected both the continuing concerns with societal morality as well as the reluctance to generate public discourse on these “odious” offences that remained extant in post-Victorian 1938 in colonial Singapore.
He further held that the s 377A should be seen as a general provision criminalising homosexual acts of gross indecency as offences against public morality, instead of a specific provision targeting commercial male prostitution when it was enacted in 1938.
Thus the judge followed the ruling in Lim Meng Suang CA holding that the purpose and object of S. 377A was intended to be of general application, and was not intended to be merely confined only (or even mainly) to the specific problem of male prostitution (notwithstanding the fact that this would be covered as well) and necessarily covered acts of penetrative sex as well.
He concluded that he remained bound by the Court of Appeal’s holding in Lim Meng Suang CA in respect of the purpose or object of s 377A but even if he were not so bound as a matter of stare decisis, he found no reason to differ from the Court of Appeal’s reasoning and conclusions.
The Plaintiffs’ argument that “presumption of constitutionality has no role in constitutional adjudication” was rejected by the court.
In respect of Article 12, similar to our Article 14, it was agreed that the settled law in Singapore is (1) that the impugned law must be based on an intelligible differentia; and (2) the intelligible differentia has to have a rational relation to the object sought to be achieved by the legislation.
On intelligible differentia, the court rejected the contention of the Plaintiffs that s. 377A could not be targeted at the male homosexuals as it was settled law in Singapore to treat men and women differently.
In view of the finding that the object of s. 377A was a matter of public morality, the court held that the objections on rational nexus based on the assumed object to curb male prostitution were non-starters. Similarly, as the object was held not to be obscure, the judge held; in fact, it was clear that the object of s.377A was to safeguard public morals, hence the objection based on that was also rejected. For that reason, it was also held not to be under-inclusive. The judge further found that it was not for the courts to decide whether female sexuality should be or not included.
The Plaintiffs argued that s. 377A is over-inclusive as it targets conduct in private which does not harm public morals. The court held that this argument presupposes that conduct in private can be divorced from precepts of public morality; this was exemplified by the fact that there are various instances under Singapore law where private acts are criminalised due to concerns over the degeneration of public morality. The act of incest, for instance, is criminalised under s 376G of the Singapore Penal Code, the court pointed out. The court concluded that seen in this light, it cannot be maintained that s 377A is over-inclusive.
It must be noted that unlike in India where Article 15(1) forbids discrimination based inter alia on sex, Article 12(2) does not protect against discrimination on the ground of sex (see the table). However, the Plaintiffs pointed out that Singapore had committed to gender equality in the UN, specifically in the Singapore’s Fourth Periodic Report to the UN Committee for the Convention on the Elimination of all forms of Discrimination Against Women. The court, however, pointed out that Article 12(2) is silent on gender equality and therefore the Periodic Report would be of no assistance.
The argument of the Plaintiffs’ that Article 12(1) affords general and substantive protection and therefore male homosexual should be protected under it was rejected on the ground that substantive protection is coloured by Article 12(2). Article 12(2) is coloured by Article 12(1). In other words equality and equal protection of law, an omnibus constitutional provision, is being held to be governed by a narrower anti-discrimination provision. It is akin to saying that for example In India, content of Article 14 is conditioned by Article 15 or Article 16. It does not stand to reason.
The Plaintiffs relied on the developing jurisprudence in similar countries to point out the limitations of the classification test under Article 12 and for the adoption of the doctrine of proportionality while applying Article 12. However these were all rejected by the court. The doctrine of proportionality goes beyond the classification or the arbitrariness doctrine as pointed out in our Supreme Court in Teri Oat Estates v. U.T., Chandigarh, (2004) 2 SCC 130,
“By proportionality, it is meant that the question whether while regulating exercise of fundamental rights, the appropriate or least restrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case may be. Under the principle, the court will see that the legislature and the administrative authority “maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve.”
Reliance on the Malaysian Federal Court in Sivarasa Rasiah v Badan Peguam Malaysia & Anor  2 MLJ 333 (“Sivarasa”) which accepted that Art 8(1) of the Malaysian Federal Constitution incorporates the doctrine of proportionality was negated on the ground that it was based on the doctrine of “arbitrary or excessive,” which was absent in Article 12. Moreover, Sivarasa was doubted by the Malaysian Court of Appeal in Public Prosecutor v Yuneswaran a/l Ramaraj  6 MLJ 47 at , which also affirmed the proposition that “the courts in this country do not comment on the quality of a law, that is to say, the courts do not consider it any part of its judicial function to paint any law as ‘reasonable’ or ‘unreasonable’ or ‘harsh’ or ‘unjust’”.
The acceptance of proportionality doctrine by the Supreme Court of India in Om Kumar v Union of India, AIR 2000 SC 3689 was rejected on the ground that the Singapore courts have made clear that they continue to subscribe to the traditional principles of judicial review.
This standard of review explained by the US Supreme Court in Romer v Evans, 517 U.S. 620 (1996) was also found to be at odds with the reluctance of the Singapore judiciary to address extra-legal arguments.
The application of the Hong Kong’s Final Appeal’s decision in Secretary for Justice v Yau Yuk Lung Zigo,(2007) 10 HKCFAR 335 (“Yau Yuk Lung Zigo”) which posited that a proportionality-based approach ought to be developed was ruled out on the ground that, given that Hong Kong’s Bill of Rights implements the provisions of the International Covenant on Civil and Political Rights … the application of the “justification test” is not unexpected. However, as Singapore has not adopted the ICCPR. As such the decision in Yau Yuk Lung Zigo was considered to be less relevant to the Singaporean context.
It is rather surprising that the High Court refused to go beyond the classification doctrine which has inherent limitations. The interpretation of law and particularly fundamental rights cannot be frozen when Constitutional courts in all liberal democratic countries perceive them as dynamic.
Text and context of Art 14(1)(a) [Akin to our Article 19(1) (a) with reasonable restrictions under Article 19(2)
The Plaintiffs’ argued that the “freedom to speech and expression” in Article 14(1) (a) included sexual expression, that is sexual intimacy, also.
The court observed that in Singapore courts have used marginal notes, though with caution, in interpreting statutes. The marginal note did not have the term “expression “indicating the freedom related to the verbal form. Moreover, according to the court, the ordinary meaning of the term “expression” was also indicated that it was in the verbal form, that is communication of an idea, opinion or belief, and “expression” in the form of male homosexual acts would not qualify for protection under Art 14(1)(a).
Moreover, the court went on to say that the Report of the Constitutional Commission 1966 (27 August 1966), recommended that-
“We recommend the retention of Article 10 of the Constitution of Malaysia and that it should be written into the Constitution of Singapore. This Article gives every citizen the right to freedom of speech, assembly and association.”
The Court noted that no mention was made of any independent free-standing right to freedom of expression.
Reliance by the Plaintiffs on the Canadian Supreme Court in of Irwin Toy Ltd v Quebec (Attorney General),  1 S.C.R. 927 and the Indian Supreme Court judgment in Navtej Singh Johar v Union of India, The Secretary and Ministry of Law and Justice, AIR 2018 SC 4321 was ruled out as the courts accepted the wider meaning of the term “expression” which was ruled out in interpreting Article 14(1) (a).
Again the fallacy in the courts reasoning is to accept a static meaning to a constitutional and fundamental right, when by their very nature they are dynamic.
The Yogyakarta Principles, according to the court, were, however, of limited assistance or relevance in the present case. With only 29 signatories to date, less than one-sixth of the 193 current member states of the United Nations have subscribed to them, and Singapore being not one of the 29 signatories, did not justify the use of these Principles, the court held.
Article 9(1) (life and liberty) and scientific evidence on the cause(s) of male homosexuality
A key plank of the Plaintiffs’ case was that there is now a comprehensive scientific consensus that a person’s sexual orientation is immutable as it is biologically determined. It was argued that although Lim Meng Suang CA, as well as Tan Eng Hong v Attorney-General  4 SLR 1059 (“Tan Eng Hong 2013”), had rejected this argument, the respective courts did not have the benefit of expert evidence in reaching their decision. The parties adduced a number of affidavits of expert witnesses, focusing on current scientific opinion on the nature of sexual orientation.
The court noted that in Lim Meng Suang CA, the Court of Appeal made clear that arguments based on scientific opinions on sexual orientation fall to be considered as extra-legal arguments and that are not within the remit of the court. In any case, the court found that the evidence adduced did not demonstrate any definitive conclusion on the immutability of one’s sexual orientation. The court further found that, there is scientific consensus for the proposition that a person’s sexual orientation is determined by both genetic and environmental factors. In any event, court agreed with the defendant’s argument that the court was not the appropriate forum to seek a resolution of a scientific issue that remains controversial.
Article 9(1): the right to life and personal liberty
The Plaintiffs further argued that s. 377A violates Art 9(1) of the Constitution as it seeks to attach criminal liability to male homosexuals on account of their ingrained identity or sexual orientation.
The court accepted the defendant’s submission that s 377A did not make a male homosexual a potential offender purely on account of his homosexual orientation. His identity or status is not an element of the offence per se, and whether the male person in question identifies himself as bisexual, heterosexual or homosexual, is completely irrelevant. Moreover, a heterosexual male can equally be prosecuted under s 377A if he commits such an offence. Therefore the Plaintiffs’ submission in this respect were rejected.
Non-enforcement of s 377A
Interestingly the Attorney-General made a statement that “where the conduct in question was between two consenting adults in a private place … absent other factors … prosecution would not be in the public interest.”
The Plaintiffs argued that this statement of the Attorney General was vague and unpredictable contrary to the provision in the Code which required gay and bisexual men to report their intention to engage in homosexual activity, which was required to be done under s. 424 of the Code. The court, however, accepted the statement of the Attorney General and further held that non-enforcement would also mean that there would be no obligation for reporting.
Finally, the Court rejected the argument that s. 377A has become redundant as first of all it reflected public morality and in any event, it would be enforced in respect of offences against minors.
Apart from the fact that in Navtej Johar, we in India had a relatively easy ride given that both NALSA and Puttaswamy had paved the way, it is also because the Singapore courts appear to follow the “literal” interpretation of fundamental rights whereas we in India interpret fundamental rights in an expansive way that there is such as a huge difference in the result, especially on the notions of equality which is still tied only to the classification test.
Also, unfortunately, the notion of dignity doesn’t appear to have been argued or considered.
However, there is still hope as the Petitioners have a remedy in the Court of Appeal. Surprisingly there has been not a whisper of protests from activist groups outside Singapore. When we suffered the Koushal decision, we got a lot of support from outside India also, which was a morale booster. Hopefully, we will not let down our Singaporean friends when they file the appeal. Hopefully, they will file and the oppressive law will go, and dignity and rights will prevail.
[Anand Grover is a senior advocate practicing in the Supreme Court of India]
Note: this article only brings out the key aspects of the judgment and is neither approval or critique of it.