High Court application
On Friday, 24 September 2010, well known human rights and criminal lawyer M Ravi filed an application in the High Court to challenge the constitutionality of Section 377A on behalf of his client Tan Eng Hong, who was charged for allegedly having oral sex with another consenting adult male, Chin, in a locked cubicle of a public toilet.,. Ravi's main argument was that Section 377A was fundamentally a provision of the law that falls into the category of laws that express human prejudices. A considerable amount of background research regarding the case was done by then law undergraduate, Indulekshmi Rajeswari.
Tan was originally charged under Section 377A but to avoid the inconvenience of a constitutional challenge which would set a precedent and open the floodgates to other constitutional challenges, the Attorney-General’s Chambers (AGC) withdrew the 377A charges in mid-October 2010 and substituted charges under Section 294(a) instead.
Section 294(a) of the Penal Code states:
"Whoever, to the annoyance of others does any obscene act in any public place...shall be punished with imprisonment for a term which may extend to 3 months, or with fine, or with both"
Section 294(a), in contradistinction to Section 377A, does not discriminate against gay men as it applies to anyone who has sex in a public place, regardless of gender. Section 294(a) also carries a lighter penalty of a maximum of 3 months' imprisonment as compared to Section 377A's maximum of 2 years in jail, even for sex in a private environment.
On 10 November 2010, Chin pleaded guilty to the substituted charge of Section 294(a) and was fined S$3,000. In mid-December 2010, Tan also pleaded guilty under Section 294(a) and was likewise fined S$3,000.
During a public forum entitled, "377A – Where did it come from and where should it go" held from 3pm to 6pm on Saturday, 27 November 2010 at The Public House, 42 Circular Road, Boat Quay, organised by Vincent Wijeysingha and chaired by Mathia Lee, M Ravi and Wijeysingha both spoke regarding the forthcoming constitutional challenge:
At the hearing of the constitutional challenge on Tuesday, 7 December 10, the Assistant Registrar agreed with the Attorney-General’s application to strike out the case on the grounds that the plaintiff did not have standing ("locus standi" in legal terminology) since he was no longer being charged under Section 377A but under Section 294(a) instead, and therefore the proceedings were frivolous, vexatious and an abuse of process. Tan then appealed to the High Court to reverse the Assistant Registrar’s striking-out decision.
In a judgment dated 15 March 2011, High Court judge Lai Siu Chiu dismissed the first appeal relating to the constitutional challenge against Section 377A filed by Tan Eng Hong. However, she ruled that Tan did have "locus standi", that is, he was affected by this law to have a legitimate interest in the issue but that there was no "real controversy" which required the court’s attention ("real controversy" being legalese meaning that it was not a matter of importance to be decided by a court), thus reaffirming the Assitant Registrar's striking-out decision (see full text of judgment,). Many observers regarded Justice Lai's judgment as incongruous, as how could the issue be of no "real controversy" when the law affected the lives of thousands of gay men in Singapore?
Appeal against High Court striking out decision
M Ravi's appeal against Justice Lai's "no real controversy" ruling took place in the Supreme Court on Tuesday, 27 September 2011,,,. Owing to widespread publicity by Roy Tan in the LGBT community,, the court's gallery, for the first time in this particular case, was packed with interested observers. These were the arguments M Ravi used to bolster his case:,.
Landmark ruling by Court of Appeal on "real controversy"
On Tuesday, 21 August 2012, after nearly a year of deliberation, Singapore’s Court of Appeal, in a 106-page judgment, overturned High Court judge Lai Siu Chiu’s decision on 15 March 2011 when she ruled that there was no "real controversy" which required the court’s attention ,,,,.
The 3 presiding Judges of Appeal, Justices VK Rajah, Andrew Phang and Judith Prakash, found an arguable case on the constitutionality of Section 377A that ought to be heard in the High Court. They explained that Tan was at the outset arrested, investigated, detained and charged exclusively under Section 377A. This, they said, squarely raised the issue as to whether Tan's initial detention and prosecution were in accordance with the law. Secondly, there was a real and credible threat of prosecution under Section 377A.
They said Tan would be allowed to vindicate his rights before the courts based on a finding that there was an arguable violation of his constitutional rights. The judges also wanted to acknowledge that Section 377A in its current form extended to private consensual sexual conduct between adult males, adding that "this provision affects the lives of a not insignificant portion of our community in a very real and intimate way. The constitutionality or otherwise of Section 377A is thus of real public interest. We also note that Section 377A has other effects beyond criminal sanctions." (See full text of judgment in main article: Archive of Judgment of Court of Appeal dated 21 August 2012).
Another seminal point in the ruling was that the appeal judges were "unable to agree with the AG that violations of constitutional rights only occur when a person is prosecuted under an allegedly unconstitutional law." This corollary of this was that any Singapore citizen had the standing to challenge the constitutionality of a law as long as he felt that his constitutional rights were being violated by the impugned law, even though he had not been charged under it. This groundbreaking implication was first realised and articulated by Roy Tan on the Singapore gay news list (SiGNeL).
Gay couple files similar constitutional challenge
As soon as other stakeholders like Fridae founder, Stuart Koe, realised the implication of the Court of Appeal ruling, a gay couple in a 15-year relationship, Gary Lim and Kenneth Chee, who were hitherto a very private couple and who preferred to maintain a low profile, were persuaded by lawyer Indulekshmi Rajeswari to join the challenge and to be its new face. This strategy was undertaken to garner broad-based support from the LGBT community and to present a favourable, wholesome image of the gay community to the general public. The lawyers assigned to them were well known human rights campaigner, Choo Zheng Xi, founder of The Online Citizen, Choo's boss, seasoned lawyer, Peter Low, both of Peter Low LLC, and Indulekshmi Rajeswari, who as a law student, had helped M Ravi with the research on the challenge and who after graduation, worked for the law company Myintsoe & Selvaraj. Their case was scheduled to be heard in the High Court on 14 February 2013.
Lim and Chee contended that the statute discriminated on the basis of sexual orientation, which makes it a violation of Article 12 of the Constitution stating that "all persons are equal before the law and entitled to the equal protection of the law". They argued before Justice Quentin Loh during a closed-door hearing on Wednesday that Section 377A was "absurd, arbitrary and unreasonable" for several reasons. For example, it criminalised the "identity" of a person - premised on their argument that homosexuality is "innate and immutable" - and the fact that it is selectively and arbitrarily enforced. The government had said at the conclusion of the parliamentary petition to repeal 377A in 2007 that the law would be kept but not proactively enforced.
The Attorney-General's Chambers, however, submitted that the statute differentiated between men and women, and not specifically to gays. In other words, the law also applied to heterosexual or bisexual men. It added that Section 377A had the "clearly-stated purpose of reflecting public morality" - a point contested by Lim and Chee, who pointed out that it does not cover lesbians and heterosexuals who choose to commit other acts which are against public morality, such as adultery or pre-marital sex.
Indiegogo fundraising campaign
On 18 April 2013, Lim and Chee decided to appeal the recent High Court judgment and solicited the help of media-savvy stakeholders from the gay community in launching a fundraising campaign on Indiegogo to raise US$50,000 to meet court costs:
The entire amount was raised within 18 hours of the launch of the campaign and eventually far exceeded the requested figure (final tally $107,730), earning it the disctinction of being the most popular Indiegogo community campaign worldwide to date. The excess cash was used to pay their lawyers who were initially willing to undertake the case pro bono and to settle relevant expenses.
Tan Eng Hong files separate challenge
M Ravi, on behalf of his client, Tan Eng Hong, filed a separate challenge to the constitutionality of Section 377A in the High Court. Tan's case was initially slated for slightly earlier, on 25 January 2013 but was later postponed to 6 March 2013, later than the gay couple's challenge.
Religious and political opposition
On 13 January 2013, Faith Community Baptist Church founding pastor Lawrence Khong told his congregation with Emeritus Senior Minister Goh Chok Tong in the audience that his church members were committed to “build strong families in Singapore” and by their definition the family unit “comprises a man as Father, a woman as Mother, and Children.”
Khong warned that they “see a looming threat to this basic building block by homosexual activists seeking to repeal Section 377A of the Penal Code.”
A statement later released by the church stated, “Reverend Khong used the opportunity to highlight to Mr. Goh that homosexual activists have been increasingly stepping up to challenge this framework, especially in their efforts to repeal Section 377A of the Penal Code – a move detrimental to family and family ties.”,
Khong's actions were probably made in response to an earlier meeting in November 2012 by representatives from queer womens' group Sayoni with Minister of Law and Foreign Affairs, K Shanmugam, in which they discussed the multifarious, cascading effects of laws and censorship in Singapore,,,,. The minister replied that the "majority’s social acceptance" was needed before there could be any changes in laws and policies. A raging online debate ensued in the mainstream media.
A second pastor, Yang Tuck Yoong of Cornerstone Community Church, later posted a message on his website urging Christians to be “battle-ready” for “not just for this battle, but for the many battles ahead of us” against the “LGBT bloc”. However, he subsequently removed more than 100 words from his original statement after numerous complaints, both from the LGBT community and its mainstream supporters. Researcher Scott Teng, aged 29, subsequently lodged a police report against Yang, saying it was "an incitement of violence".
After a speech at the Singapore Perspectives conference organised by the Institute of Policy Studies on Monday, 28 January 2013, Prime Minister Lee Hsien Loong was asked by a participant, civil society activist Braema Mathi, how the fact that the Republic was a secular country reconciled with “an old and archaic law that nearly discriminates against a whole (group) of people”. Lee replied, “Why is that law on the books? Because it’s always been there and I think we just leave it.”, The LGBT community expressed their extreme disappointed with his comments.
High Court hearing of 377A constitutional challenge
Gay couple's case
On Thursday, 14 February 2013, the High Court held the first full hearing of the constitutional challenge filed by gay couple Gary Lim and Kenneth Chee. The case was heard by Justice Quentin Loh and was conducted in chambers, meaning that only the parties who were directly involved in the matter could attend. Chee and Lim were not present for the hearing which lasted three and a half hours. Their lawyers filed a 123-page submission.
Arguing that section 377A was constitutional, the Attorney-General said that the law applied to all men, not just self-identified gay men, who have sex with other men; the law “reflects public morality” and "because there is a scientifically-established difference between the public health risks associated with sex between men and sex between women."
Supporting affidavits by Prof. Roy Chan, founder and president of Action for AIDS, and Bryan Choong, centre manager and counsellor of Oogachaga, a gay and lesbian affirmative counseling agency in Singapore, to explain the negative effect of Section 377A on homosexual men were not allowed by the judge.
Tan Eng Hong's case
On Wednesday, 6 March 2013, Justice Quentin Loh heard lawyer M Ravi's arguments on behalf of his client Tan Eng Hong, opposed by Aedit Abdullah from the Attorney-General’s Chambers (AGC).
Ravi’s case for the repeal rested on 2 articles of Singapore’s Constitution. First, Article 9(1) states that "No person shall be deprived of his life or personal liberty save in accordance with law. “Law” here has been conclusively agreed to mean “natural justice”, not just what was in the statute books. Ravi argued that Section 377A did not meet the requirements of natural justice, since it was “inherently absurd, arbitrary [and] vague”. It was absurd and arbitrary because it persecuted people born with an immutable sexual orientation, and vague because its interpretation rested on the extremely subjective concept of “gross indecency”.
Second, Article 12(1) states that "All persons are equal before the law and entitled to the equal protection of the law." Section 377A discriminated based on sexual orientation, which had been recognised as contravening legal principles of equality in Hong Kong, India, Nepal, Fiji, the US, Portugal, Chile and Peru. The law was also discriminatory within the homosexual community because there was no convincing reason why gay male sex was criminalised while lesbian sex was legally sanctioned.
The AGC’s case, on the other hand, fundamentally rested on the principle of “public morality”, a concept explicitly referred to in the Constitution. Aedit claimed that the Singaporean public still clearly viewed gay sex as immoral, quoting Singapore’s Nanyang Technological University’s study that found that by 2010, 64.5% of Singaporeans still held negative attitudes towards homosexuals, with 25.3% expressing positive attitudes and 10.2% neutral. He further countered that comparisons of Singapore to Hong Kong, the US and India were invalid, given that their legal systems formally recognised a right to individual privacy, whereas Singapore’s did not.
Justice Loh, who did not appear to be swayed by either side, reserved judgment on the case.
High Court judgment on gay couple's challenge
On Wednesday, 10 April 2013, the High Court released Justice Quentin Loh's 92-page judgment.
In it, Loh said that “s 377A essentially addresses a social and public morality concern which our Legislature identified in 1938 and subsequently affirmed in 2007.” Addressing the frequently asked question which was also raised by the plaintiffs, i.e., why retain Section 377A if no one was to be prosecuted under it, Loh stated, “If there’s no prosecution of s 377A offences, that is no ground to say that s 377A is unconstitutional.”
He added, “(D)uring the October 2007 Parliamentary Debates, Parliament considered s 377 and s 377A carefully, and after debating the matter fully, endorsed the repeal of s 377 but chose to retain s 377 A. I can see no basis in this case to interfere given my reasons set out above. It is clear that Parliament saw a reasonable differentia upon which to distinguish between two classes: anal and oral sex in private between a consenting man and a consenting woman (both aged 16 and above) was acceptable, but the same conduct was repugnant and offensive when carried out between two men even if both men were consenting parties. There is therefore no reason to strike down the basis of the classification prescribed by s 377A – viz, male homosexuality – as arbitrary or discriminatory, or on the ground that it does not bear any rational relation to the purpose of the provision.”
He concluded that, “In my judgment, the object of s 377A is clear. It criminalises male homosexual conduct that is not acceptable in our society. Its retention was endorsed by Parliament in 2007… I also find that the purpose of s 377A is not a purpose which is so patently wrong as to render it an illegitimate purpose upon which to base a classification prescribed by the law."
Members of the LGBT community expressed their outrage at the ruling.
On 18 April 2013, the gay couple announced that they would file an appeal against the ruling. Stakeholders launched a fundraising campaign on the popular crowdfunding website, Indiegogo, to raise S$50,000 to help meet court costs. The campaign video was produced by film directors Boo Junfeng and Loo Zihan. The fundraiser proved to be the most successful in Singapore's history with the amount requested exceeded in a matter of weeks and the final figure totalling over S$100,000. This was testimony to the amount of support that the LGBT community bestowed on the couple, in contrast to the almost non-existent support offered to Tan Eng Hong.
During Pink Dot 2013, Gary Lim and Kenneth Chee were invited to be the flag bearers on the podium but no invitation was extended, nor gratitude expressed to or even mere mention made of the initiators of the constitutional challenge - Tan Eng Hong and M Ravi who clinched the successful court rulings which enabled the challenge to come thus far. This led astute observers like Lisa Li and others to comment that the LGBT community indulged in discrimination against its own members - those who were not in relationships and who did not possess the poster-friendly image that the gay couple projected,. The discrepancy was redressed when M Ravi was invited to give a speech the following year at Pink Dot 2014 (see video:).
Change in gay couple's legal team
On Tuesday, 9 July 2013, Lim and Chee issued a media statement that they had appointed Senior Counsel, Deborah Barker, who was a partner and head of Litigation & Dispute Resolution at KhattarWong LLP, one of Singapore’s leading law firms, to represent them at the Court of Appeal.
They had also filed for the admission of Queen's Counsel, Lord Peter Goldsmith, to argue their appeal as co-counsel with Barker. Lord Goldsmith Q.C. was Chair of Asia and European Litigation at Debevoise and Plimpton LLP, and was Attorney-General for England, Wales and Northern Ireland from 2001 to 2007 under Prime Minister Tony Blair,.
Intervention by Tan Eng Hong
On Tuesday, 13 August 2013, lawyer M Ravi, on behalf of his client Tan Eng Hong, made an application to the High Court to be recognised as an interested party and to intervene in Gary Lim and Kenneth Chee's upcoming Court of Appeal hearing as the outcome of the gay couple's appeal could affect Tan's case in which judgment was still pending ,,,,. This was despite the fact that it had been 2 years and 11 months since Tan's matter came before the Court.
Gay couple's Queen's Counsel application rejected
On Thursday, 19 September 2013, Court of Appeal Justice V K Rajah dismissed the gay couple's application for Queen's Counsel, Lord Peter Goldsmith, to represent them. He ruled that the application did not meet the requirement for admitting foreign senior counsel on an ad hoc basis under the Legal Profession Act, where there must be a “special reason” to do so,,,.
High Court judgment on Tan Eng Hong's challenge
On Wednesday, 2 October 2013, High Court Justice Quentin Loh today released a 54-page judgment which stated that he "found that the statute has not infringed the rights of the plaintiff, Tan Eng Hong, and is not inconsistent with Articles 9 and 12 of the Constitution of Singapore, which ensures that one will not be deprived of his life or personal liberty save in accordance with law and that all persons are equal before the law and entitled to the equal protection of the law, respectively."
While Justice Loh responded to wide-ranging arguments from decisions made by foreign courts to decriminalise male to male sex to criminalising a "natural and immutable attribute" made by M Ravi, he also said of section 377A, "The purpose and object of s 377A when its very first predecessor was enacted in 1938 was to respond to a prevalence of grossly indecent acts between makes – whether in public or in private – which the Legislature deemed a regrettable state of affairs that was not desirable... The purpose and object of s 377A remains the same today."
Tan Eng Hong successfully applies to consolidate both challenges
On Thursday, 10 October 2013, Judges of Appeal Andrew Phang, VK Rajah and Woo Bih Li convened on an urgent basis and ruled that the issues in both cases were essentially the same and should be heard together,,,. M Ravi explained that his client's application to have the 2 cases consolidated was "essentially for the beneficial effect of preventing a multiplicity of actions and preventing the same questions of law and constitutional issues from being tried on separate occasions with potentially different results." He added that should judgment be issued in the gay couple's case before Tan's appeal was heard, his client "may be deprived of or have abbreviated his opportunity to vindicate his rights through access to the entire appellate process."
Court of Appeal hears 377A constitutional challenge by Tan Eng Hong & gay couple
On 14 and 15 July 2014, Court of Appeal Justices Andrew Phang, Belinda Ang and Woo Bih Li heard the challenges to the constitutionality of Section 377A from both parties - Tan Eng Hong, and the gay couple, Lim Meng Suang and Kenneth Chee.
The couple's lawyer, Deborah Barker, said her clients, who had been in a romantic and sexual relationship for the past 16 years, were not seeking to change the Constitution, but only to enforce it. They were not asking for social change or the affirmation that male homosexual conduct was acceptable in Singapore. Rather, they were seeking a ruling that the majority could not impose its views, disguised as public morality, to target an unpopular minority group by restricting their intimate conduct in private which was legal for everyone else,,.
M Ravi, acting for Tan Eng Hong, argued that he was not asking the court to decide on questions of social policy but to deal with the issue of whether Section 377A unlawfully discriminated against a segment of society. He said, “To characterise the potential violation of a fundamental right against a not insignificant segment of society as a matter of social policy that is up to the legislature is to completely disregard the function of this court. This case is squarely a matter of constitutional law. The legal issue the court is constitutionally mandated to determine is whether 377A unlawfully discriminates against a segment of our society.”
Ravi said Section 377A infringed on the right to equality under Article 12 and violated the rights of gay people to life and personal liberty under Article 9 of the Constitution. He argued that gay males and lesbians were treated differently under the law – Section 377A only criminalises sex between males, but not between females.
Presiding judge Andrew Phang said that the Court of Appeal should not, without a legal basis, “step into the shoes of parliament” which decided in 2007 not to repeal Section 377A and that a decision would be delivered in due course.
Court of Appeal rules 377A constitutional
In a 100-page judgment released by the Court of Appeal on 28 October 2014, Justices Andrew Phang, Belinda Ang and Woo Bih Li ruled that Section 377A was constitutional,,,,,. The decision covered both contesting cases by gay couple Gary Lim and Kenneth Chee, as well as Tan Eng Hong (see Archive of Court of Appeal judgment in Lim Meng Suang & Tan Eng Hong v AG, 28 October 2014).
The court rejected Tan's lawyer, M Ravi's argument that Section 377A was absurd because it criminalised a minority based on a core aspect of their identity which was unchangeable. It noted that there were still conflicting scientific views on whether sexual orientation was unchangeable so it was premature to express any conclusive views on it. In any case, the supposed unchangeability of sexual orientation was an "extra-legal" issue that was outside the remit of the court.
While Article 12 of the Constitution guaranteed equal protection, Singapore's legislature was allowed to pass laws that treated people differently if they were based on a "reasonable classification". The court used the "reasonable classification test" to determine whether a statute that differentiated was consistent with Article 12. Under this test, a statute that differentiated was constitutional if the classification was based on an "intelligible differentia", meaning a distinguishing feature that was discernible, and if the differentia bore a rational relation to the objective of the law. It maintained that the classification prescribed by Section 377A, i.e., men who performed acts of "gross indecency" with other men, was based on an intelligible differentia. After analysing historical documents on the enactment of Section 377A, the court ruled that there was a "complete coincidence" in the relation between that differentia and the purpose and objective of Section 377A - to enforce societal morality. As such, Section 377A passed legal muster under this test. The court went on to note that Article 12 did not address the issues involved in Section 377A. While the provision specifically prohibited discrimination based on religion, race, descent or place of birth, the words "gender", "sex" and "sexual orientation" were noticeably absent.
In conclusion, the judges noted the "vexing difficulty" in dealing with the emotional extra-legal considerations surrounding the topic, and emphasised that they could only consider the legal arguments. They stated, "While we understand the deeply-held personal feelings of the appellants, there is nothing that this court can do to assist them. Their remedy lies, if at all, in the legislative sphere."
Statements by both plaintiffs in response to judgment
Lawyer M Ravi commented, "Today’s decision has legitimised discrimination against gay men and approved the criminalisation of the conduct of their private lives by statute.", He called the ruling a "huge step backwards for human rights in Singapore".
"We are deeply disappointed with the judgement of the Court and though it has ruled that it is beyond its judiciary function to help the lgbt community, we are thankful that the justices have taken the time to consider this appeal in detail. We hope that parliament will be able to do so as well.
While the legal road for us has ended, we believe and hope that this case has inspired Singaporeans - straight, gay, bisexual and transgender - not to keep silent in the face of prejudice and inequality.
We have been in a loving relationship for over 17 years and this past year has been an incredible milestone for us. We decided to embark on this journey because we felt that the LGBT community deserves to be recognized as equal to the rest of society in the eyes of the law and have been witness to the discrimination and unfair treatment of the LGBT community on the basis of S377A of the Penal Code.
Being a part of this historical campaign provided us the opportunity to show young LGBT people that there are gay and lesbian couples in Singapore who have weathered the discriminatory nature of our society and though we have to strive harder than heterosexual couples to be together, it can be done. We hope that we and the many other LGBT couples who are increasingly telling their stories will help others, and we hope that Singaporeans will see this as a minor setback for equality and fairness, and that we can as a country recognise the value of LGBT people.
We would like to thank the many people who have supported us on this fight. From the many who have donated funds to the legal case, to those who have contributed their knowledge and expertise. We also thank our lawyers Deborah Barker and Peter Low both of whom have been immensely supportive during the 2 phases of our legal challenge.
This particular journey may have ended for us but it continues for the rest of the community.
MARUAH's forum on 377A constitutionality judgment
On 1 February 2015, MARUAH organised a forum entitled, "Section 377A: What Does It Really Constitute?". It was held from 2:30pm to 5:30pm at #02-08, Heritage Place, 21 Tan Quee Lan Street, Singapore 188108. Advertisement: "The Court of Appeal has ruled that Section 377A is constitutional. What does this mean for the state of our civil liberties? Can we retain 377A, along with principles of equality and justice? Should gender and sexual orientation be included in our right to protection against discrimination? Come hear lawyers and academics speak on this matter."
Ivan Tan comes out
In December 2014, Ivan Tan gave an exclusive interview published in Vol. 4 (2014) of Queer Asian Spirit E-Zine in which he revealed that he was the "Tan Eng Hong" that had started the 377A Constitutional challenge with human rights lawyer M Ravi in 2010 (original content taken offline but see Archive of Queer Asian Spirit article, "The Accidental Activist: Ivan Tan takes on Singapore’s Anti-Gay Law", by Lee Anthony Shaw, QAS E-Zine, Vol. 4 (2014): Queer Diversity). Tan consented for the first time to having his photograph, which appeared at the bottom of the article, published in connection with the case. He had hitherto chosen to remain faceless to the public in the ongoing saga and had preferred to use his less well known Chinese name instead of the name by which most people knew him.
In the article, Tan talked about his spirituality which gave him to courage to launch the Constitutional challenge at great cost to his personal and professional life and to his family.
Indian's decriminalisation of gay sex and effect on Singapore
On Thursday, 6 September 2018, India's Supreme Court unanimously ruled to decriminalise consensual gay sex, with Chief Justice Dipak Misra calling Section 377 of the Indian Penal Code "irrational, indefensible and manifestly arbitrary". The historic ruling's reverberations extended to Singapore.
Tommy Koh encourages another 377A constitutional challenge
On the very same day that the Indian judgment was announced, Simon Chesterman, dean of the National University of Singapore's Faculty of Law, shared a New York Times story on the landmark event on his Facebook, congratulating a former classmate from India and others on the victory. In the comments section below Chesterman's post, veteran diplomat Prof Tommy Koh who was Ambassador-at-Large at the Ministry of Foreign Affairs wrote,,,:
"I would encourage our gay community to bring a class action to challenge the constitutionality of Section 377A".
Koh also liked a Facebook post on Friday, 7 September 2018 by Janadas Devan, the chief of Singapore government communications, which opined: "Speaking personally, I support Tommy's position. 377A is a bad law; it is bad law. Sooner or later, it will go. Pray sooner rather than later."
K Shanmugam: Singaporean society to decide on gay sex laws
- See also: K Shanmugam's views on homosexuality
On 7 September 2018, Law and Home Affairs Minister K Shanmugam, responding to the momentous development in India, commented that laws would have to keep pace with changes in societal views and it was up to society to decide which direction it wanted to take when it came to legislation on gay sex,.
He said: “Singapore...on this issue, it is a deeply split society. The majority oppose to any change to section 377A - they are opposed to removing it. A minority - I have to say, a growing minority - want it to be repealed. The Government is in the middle. This issue relates to social mores, values - so can you impose viewpoints on a majority when it so closely relates to a social value system?”
"The law is there but generally there have been no prosecutions for private conduct. People openly express themselves as gay, you got the gay parade. Police even approved a licensing for it, no-one gets prosecuted for declaring themselves as gay," he noted. “So really when was the last time someone was prosecuted?”
“Speaking for myself, if you ask me, in a personal capacity, personal view - people's lifestyles, sexual attitudes, (we) really should be careful about treating them as criminals or criminalising that." "But again it will be wrong for me to impose my personal views on society or as a policymaker,” he qualified. “We live our lives, live and let live. If one side pushes, you will expect a substantial push back.”
The following day, on Saturday, 8 September 2018, Shanmugam said that whether Section 377A was repealed or amended would be a matter for Parliament to decide,. He added that depending on the legislation, public opinion was "often relevant" during public policymaking in Parliament and "that is the jurisprudential approach that many Courts around the world, including Singapore, take. What the public thinks, whether it's a majority view or minority view, these are usually not considerations. You look at the law and you compare it against the Constitution," he added. However, when it came to whether a piece of legislation should be amended or repealed, that would be a matter for the Executive, which comprised the Cabinet, and Parliament. "The Executive proposes and Parliament decides, and usually, depending on the legislation, public opinion can be relevant," he explained. When asked whether Section 377A could be challenged again in Singapore courts, Shanmugam replied: "Technically, it is possible for people to bring a challenge and there are rules, jurisprudence on how such challenges will be dealt with by the Courts."
Tommy Koh's comments reignite debate on 377A
Members of the LGBT community cheered the note of support from Koh,,,. The organisers of Pink Dot quoted him on their Facebook page, with the hashtag #tryagain and added: "Time to get rid of the archaic law left behind by the British!" Leow Yangfa, the executive director of Oogachaga, told The Straits Times: "We would like to thank Prof Tommy Koh for the very generous word of encouragement for us to persevere in our efforts to seek equality and justice for everyone, regardless of our sexual orientation and/or gender identity."
However, on the other camp, conservative leaders fretted not just about the implications of India's historic move but also about Koh's Facebook comment. Pastor Lawrence Khong, chairman of LoveSingapore, a network of more than 100 churches in Singapore, quipped: "I'm somewhat concerned, perhaps even disappointed, that a public and some would consider a government figure is making a statement like that. It does not come across as being helpful to building cohesion in society. In considering this issue, we must consider how people feel about it not only as an issue of personal right, not only as an issue of discrimination, but also, what are the ramifications and social cost for society?" He urged the Government to take a cautious approach on the issue. The Singapore Islamic Scholars and Religious Teachers Association (Pergas) had previously asked Muslims not to attend any event that "supports transgression" of Islamic teaching on the family, including events in support of the LGBT community.
Lawyer Lim Biow Chuan, who was Deputy Speaker of Parliament, said the Government had been taking a cautious stance on the issue for many years. It had stated for the record that it would "accommodate the sensitivities of different communities so that there is room for all to exist harmoniously together". 377A was not proactively enforced, and all citizens, regardless of their sexual orientation, were free to lead their lives and pursue their activities in their private space without fear or violence or personal insecurity. Lim said: "It's still a very divisive issue in Singapore. If you look at our society today, we can't raise the topic without everyone getting riled up. I'm not convinced that (reviewing 377A) would be the right move at this point in time - it would just divide society. But maybe in the future, as people's values develop and change, we may find a better time to do so."
At a book launch on Friday evening, 7 September 2018, Ho Kwon Ping, chairman of Singapore Management University, responding to a question from an audience of more than 100 tertiary students, said that he backed Prof Koh’s stance, adding that it was “fundamentally untenable” for the Government to keep 377A without enforcing it. He questioned what it was doing to the notion of the rule of law. “Either you have 377A and you justify to people, which (will cause) a furore, or you repeal. You cannot have your cake and eat it too, and say you want to please everybody, it’s on the statutes, it is illegal in Singapore, but you are not prosecuting.” His personal views were that to be anti-LGBT was to be “on the wrong side of history”, as the issue had long evolved from being one framed around one’s morality or sexual orientation to one of fundamental human rights. Ho, who was also executive chairman of Banyan Tree Holdings, advised that it would be good for Singapore to show that “we are on the right side of history, rather than to be the last country in Asia to repeal such a law. We are certainly not going to be the first country — we are not leading it — but it would be a bit embarrassing to be the last man standing.”
Opinion pieces on the issue were also published by Bertha Henson, Lianhe Zaobao,, SG Magazine,, The Independent SG,, Dear Straight People, and Salt & Light,. The Online Citizen raised the sensitive question of whether the PAP government was trading gay rights for Christian support,.
On 13 September 2018, the National Council of Churches of Singapore (NCCS) released a statement saying that it did not support the repeal of Section 377A, adding that it believed "the homosexual lifestyle is not only harmful for individuals, but also for families and society as a whole",,,. The statement went on to say that the Bible "clearly and categorically prohibits homosexual behaviour because it is a perversion of the way in which God has ordered human sexual relationships. The repeal of Section 377A would result in the normalisation and promotion of this lifestyle, which in turn would lead to undesirable moral and social consequences, a slippery slope as seen in some countries taking this step."
The NCCS' stance was rebutted in an article by pro-LGBT Christian Asher Mak who wrote that Christians saw LGBT rights as an issue to tackle but did not hear the stories of hurt and rejection experienced by the community. Leslie Lee wrote to the Ministry of Home Affairs to raise the possibility that the statement issued by the NCCS contravened the Maintenance of Religious Harmony Act. He encouraged others who believed that Singapore should remain secular to write in too,. Rio Hoe call into question the importance of "traditional family values",.
On 10 September 2018, The Straits Times published the results of an online survey by Ipsos Public Affairs, an independent market research company, conducted over a period of four days from end-July to early August 2018 to understand the current social attitudes towards same-sex relationships,. It showed that slightly more than half (55%) of the people in Singapore still supported Section 377A while 12% said they opposed it. 33% of the residents here were more accepting of same-sex relationships than he or she was five years before, while 35% were not.
A total of 750 Singaporean citizens and permanent residents aged 15 to 65 took part in the study. Sentiment varied according to gender, with males more likely to strongly support the law than females. Singapore residents aged 15 to 24 were more likely to oppose the law, while residents aged 55 to 65 were more likely to support it. People here were also asked the extent to which they agreed or disagreed with the statement "I believe that Singaporeans should be able to participate in same-sex relationships". 28% agreed with the statement, while 38% did not.
Ipsos said the findings indicated that attitudes towards the issue of same-sex relationships had changed and were likely to continue to change, albeit at a slow pace. This change was attributed to perceptions of shifts in Singapore's social norms with respect to same-sex relationships, increased conversations on social media and more direct exposure to same-sex relationships. Ipsos associate research director Robert McPhedran said: "This research indicates that the normative values of Singaporeans with respect to LGBTQ issues are gradually shifting. As has occurred in other countries globally, increased dialogue regarding same-sex relationships has contributed to higher acceptance among Singaporeans. This is particularly the case for the younger generation. Nonetheless, as PM Lee has previously noted, a social consensus remains far from being reached."
A 2014 survey of more than 4,000 Singapore residents conducted by the Institute of Policy Studies similarly found that people here were largely conservative. In the study, 78.2% of respondents said that same-sex relationships were wrong, while 72.9% were not in favour of gay marriage.
Blackbox Research survey
Market research consultancy Blackbox Research conducted a poll commissioned by Yahoo! News Singapore from 12 to 19 October 2018 on attitudes towards anti-gay laws using a sample size of 1000 Singaporeans and permanent residents.
One of the questions posed in the survey was: “Repealing Section 377A would lead to the breakdown of the family unit in Singapore. Do you agree?” 36% strongly agreed or agreed with the statement while some 28% strongly disagreed or disagreed with it. The remaining 36% of respondents were neutral on the issue. By age group, fewer respondents aged 15-24 years old agreed with the statement, compared with those from the older age groups. Only 25% from the age group strongly agreed or agreed with the statement, followed by 35% who were neutral and 40% who strongly disagreed or disagreed with it. Among those aged 50 years and above, 41% agreed that the removal of the law would be detrimental to the Singapore family unit. About 33% of the respondents in the age group were neutral on the statement and 26% strongly disagreed or disagreed with it.
Over three in 10 Singapore residents agreed that the absence of a law criminalising sex between women was harmful to society. Of the other respondents, about 26% strongly disagreed or disagreed with the statement, while 41% were neutral. Among the respondents by gender, more males strongly agreed or agreed with the statement at 35%, compared with 32% of females. The proportions of males and females who were neutral on the statement were 40 and 41%, respectively. The proportions of males and females who strong disagreed or disagreed with the statement were 25 and 27%, respectively. The proportions of respondents who strongly agreed or agreed with the statement were somewhat consistent across all age groups: 31% (15-24 years old), 35% (25-34 years old), 31% (35-49 years old) and 35% (50 years old and above). Among those who strongly disagreed or disagreed with the statement, the proportions were 34% (15-24 years old), 27% (25-34 years old), 24% (35-49 years old) and 25% (50 years old and above). The proportions who were neutral were 34% (15-24 years old), 38% (25-34 years old), 45% (35-49 years old) and 41% (50 years old and above).
More than half of Singapore residents strongly agreed or agreed that religious views and opinions should not influence Singapore’s laws. Of the other respondents, about 20% strongly disagreed or disagreed with the statement, while 29% were neutral. By age group, the biggest proportion of respondents who strongly agreed or agreed with the statement was 54% among those who were 50 years old and above, followed by 52% (15-24 years old), 49% (25-34 years old) and 47% (35-49 years old). Among those who strongly disagreed or disagreed with the statement, the proportions were 25% (15-24 years old), 20% (25-34 years old), 17% (35-49 years old) and 21% (50 years old and above). The proportions who were neutral were 23% (15-24 years old), 31% (25-34 years old), 36% (35-49 years old) and 25% (50 years old and above). By gender, more males strongly agreed or agreed with the statement at 52%, compared with 49% of females. The proportions of males and females who were neutral on the statement were 28 and 31%, respectively. The proportions of males and females who strong disagreed or disagreed with the statement were the same at 20%.
Another question posed was: “Singapore should keep Section 377A even if it is not enforced. Do you agree?” Of the 1,000 respondents, 42% strongly agreed or agreed with the statement, with 19% strongly disagreeing or disagreeing. The remaining 40% expressed a neutral stance on the issue. The results were largely consistent across male and female respondents. The proportions of male and female respondents who strongly agreed or agreed with the statement were 41% and 42%, respectively. The proportions of males and females who strongly disagreed or disagreed with the statement were 21 and 17%, respectively, while the remaining 38% of males and 41% of females were neutral on the issue. By age group, fewer respondents aged 15-24 years old strongly agreed or agreed with the statement, compared with those from the older age groups. Only 28% from the age group strongly agreed or agreed with the statement, compared with 41% (25-34 years old), 38% (35-49 years old) and 48% (50 years old and above). Among those who strongly disagreed or disagreed with the statement, the proportions were 27% (15-24 years old), 22% (25-34 years old), 19% (35-49 years old) and 15% (50 years old and above). The proportions who were neutral were 45% (15-24 years old), 38% (25-34 years old), 43% (35-49 years old) and 37% (50 years old and above).
Johnson Ong files fresh constitutional challenge
On Monday, 10 September 2018, barely 4 days after the historic striking down of Section 377 of the Indian Penal Code, then 43-year old internationally renowned disc jockey, producer and owner of a digital marketing agency Johnson Ong Ming, who went by the stage name of DJ Big Kid, filed a challenge with the High Court against Section 377A, arguing that the law was unconstitutional,. Ong was represented by lawyers Eugene Thuraisingam and Suang Wijaya who acted pro bono. The Attorney-General was listed as the defendant and a pre-trial conference was fixed for 25 September 2018.
In his filing, Ong, who was in a relationship with a male partner for more than a year, said he was aware of the ruling in October 2014 that rejected the constitutional challenge filed by Tan Eng Hong and gay couple Gary Lim and Kenneth Chee but argued the court should depart from that precedent given international judicial developments since then, including the recent Indian Supreme Court judgment. He was also relying on a 2015 report by the United States Substance Abuse and Mental Health Services Administration (SAMHSA)which argued that "sexual orientation is unchangeable or suppressible at unacceptable personal cost". Ong also pointed out that Section 377A targeted only gay men and not gay women, and therefore contravened the right to equality enshrined in Article 12 of the Constitution.
On Wednesday, 12 September 2018, Ong responded to queries from TODAY newspaper via email, saying that he believed repealing the section would put an end to the "online assaults, vitriol and abuse" against the LGBTQ community,. He felt “energised” by the news of India’s ruling and decided to “take up” Prof Koh’s challenge. Ong's lawyers intended to adduce expert evidence which included proof that same-gender sexual orientation (including identity, behaviour, and attraction) and variations in gender identity and gender expression were “a part of the normal spectrum of human diversity and do not constitute a mental disorder”. If established that sexual orientation was unchangeable or not suppressible, they would argue that the criminalisation of consensual sex was a violation of human dignity and breached Article 9(1) of the Constitution, which stated: “No one shall be deprived of life and personal liberty save in accordance with law”. However, the court previously held that Section 377A did not contradict Article 9 as the phrase “life and liberty” was only to be used in reference to the protection of the personal liberty of a person from unlawful incarceration, and not to the right of privacy and autonomy in personal relationships. The lawyers additionally planned to argue that there had been many changes and legal developments around the world since the previous challenge was struck out, citing cases in the United States, Belize, Taiwan, Hong Kong and India,.
Ong, who was a Pink Dot 2010 ambassador,, also chose to mount the court challenge as LGBTQ groups were "not allowed to organise" and "don't see ourselves represented positively on mainstream media, if at all,. "Without access to help and resources, navigating through life is a lonely and often stressful process for every LGBT Singaporean," he said. "Most importantly, I am not a criminal and I do not want to go through life being branded as one by my own country. It takes a psychological toll on you going through life thinking you are less than everyone else."
Ong added: “I feel the current sentiment is that we have for decades silently suffered through enough discrimination at our workplaces, in our communities and within our own families, and not so recently, by conservatives, and religious organisations.” While he expected a “public backlash even to my own personal detriment” following his move, he reiterated that he was unperturbed and “ready for it”. He was “hopeful” and felt that he stood a good chance this time round. He explained that a successful court challenge would be "a monumental moment for not just the LGBTQ community but for all Singaporeans because gay rights, like women’s rights, like any subjugated minority rights, are human rights",.
Another round of keep/repeal 377A petitions
Please Keep Penal Code 377A in Singapore
On 10 September 2018, an individual who published his name as Paul P. organised a petition to the Government on Change.org entitled, "Please Keep Penal Code 377A in Singapore". It was aimed at Singaporeans, who, like himself, believed that "the vocal minority" should not "impose their values and practices on the silent majority who are still largely conservative," and that marriage should only still be "an acceptable norm between a man and a woman". By the time of the petition's closure on 24 September 2018, it had garnered 108,917 signatures. Critics of the petition noted that most of the signatories supported keeping Section 377A on religious grounds, citing holy books and sacred texts on why they did not want LGBTQ lifestyles to be accepted. While well within their right to express their beliefs, a glimpse through all the submitted comments prompted the casual reader to seriously question their line of thought. The online platform also allowed anyone to sign as many times as they wanted, was easy for bots to infiltrate/populate, did not collect relevant data, and did not distinguish foreigners from Singaporeans/PRs.. Members from the anti-gay camp also individually wrote letters to Law Minister K Shanmugam and MPs in their constituency. In late September 2019, a document was circulated online arguing for the retention of Section 377A,.
- Main article: Ready4Repeal
Ready4Repeal is an online movement and petition for the repeal of Section 377A of the Singapore Penal Code. It was started in early September 2018 by Glen Goei and Johannes Hadi because Section 377A was being excluded yet again from the Penal Code Review to be held in 2019, and the founders of the movement did not want the LGBTQ+ community to be left behind. To date, it has garnered 50,495 signatures. The lead signatories are Professor Tommy Koh, Professor Kishore Mahbubani, Professor Walter Woon, Ho Kwon Ping, Claire Chiang, Hsieh Fu Hua, Theresa Foo & Harold Foo, Professor Tan Tai Yong and others.
Another petition by Gabriel Tang-Rafferty addressed to the Government chalked up 17,610 signatures out of the targeted 25,000 as of 12 September 2018.
Walter Woon in favour of repealing 377A because of "constitutional problem"
During the 12th NUS Tembusu Forum entitled "Are Human Rights Truly Universal?", which lasted two hours and was attended by about 250 students, held on the night of Tuesday, 18 September 2018, National University of Singapore (NUS) law professor Walter Woon, a former Attorney-General, said he was in favour of repealing Section 377A because of what he saw as a "constitutional problem",. The Government had said that the law would not be proactively enforced but Woon cited Section 35(8) of the Constitution to make the point that the powers to prosecute lay with the Attorney-General.
He said: "So we have a very dangerous precedent here where the political authorities are saying to the Public Prosecutor, who is supposed to be independent, there are some laws that you don't enforce. I find that very uncomfortable." He added that that homosexual sex was "absolutely impossible to prove" as a practical matter. "As a matter of principle, if these are consenting adults, why should it carry a jail term?" While considered a sin by certain religions, it could be accorded similar treatment to adultery and fornication, which are not crimes under the law, he elaborated, saying: "If it is a sin, it is between you and God."
NUS Centre for International Law chairman Prof Tommy Koh agreed that the provision should in principle be done without, but said abolishing it was "not so simple" given a potential political pushback. A majority of Singaporeans were against a repeal going by opinion polls, he pointed out. "The compromise is a law in the book, but Singapore will not enforce that law," he explained, adding that the Government's difficulty in balancing opposing opinions "should not be underestimated".
V.K. Rajah: "Section 377A: An impotent anachronism"
- Main article: Archive of The Straits Times article, "Section 377A: An impotent anachronism", 30 September 2018
On 30 September 2018, V.K. Rajah, who was Attorney-General from 2014 to 2017, who had been a judge on the Supreme Court and Court of Appeal, and who was one of the three judges who delivered the landmark ruling on Tan Eng Hong's constitutional challenge in 2012 (see above), penned an op-ed article for The Sunday Times entitled, "Section 377A: An impotent anachronism". In it, he argued for the decriminalisation of private sexual acts between males.
AG Lucien Wong: Government has not removed prosecutorial discretion for 377A
- See also: Prosecutorial discretion in Singapore
On Tuesday, 2 October 2018, Attorney-General Lucien Wong said that the Government had not removed or restricted prosecutorial discretion for Section 377A, noting that former AGs, Professor Walter Woon and V. K. Rajah, "have recently suggested that it is not desirable for the Government and Parliament to direct the public prosecutor (PP) not to prosecute offences under Section 377A of the Penal Code, or to create the perception that they are doing so. Such comments may give rise to the inaccurate impression that the exercise of the PP's discretion has been removed or restricted in respect of Section 377A. Where the Police conducts investigations into an offence under Section 377A, the Police will decide whether or not there is sufficient basis to refer the case to the PP. It will then be for the PP to determine whether to prosecute. In doing so, the PP exercises his independent discretion on whether to charge the offender, solely on the basis of his assessment of the facts, the law, and the public interest. While the PP is entitled to consider public policies in exercising his discretion, these do not fetter the exercise of prosecutorial discretion.
He also noted that "the Government's position on Section 377A is that the Police will not proactively enforce this provision, for instance by conducting enforcement raids. However, if there are reports lodged by persons of offences under Section 377A, for example, where minors are exploited and abused, the Police will investigate." To illustrate this point, Wong cited an example of when, in 2008, then Deputy Prime Minister and Minister for Home Affairs Wong Kan Seng "explained that in the case of an offender who had been charged under Section 377A of the Penal Code, a police report was lodged by a 16-year-old male who had oral sex with the suspect". The police referred the case to the PP after completing investigations, and the PP "decided to charge the accused under Section 377A after taking into account all the facts and circumstances of the case, including the complainant's age and the fact that the offence had taken place in a public toilet".
V. K. Rajah's reply
"Opinion piece reiterates prosecutorial discretion
I refer to the Straits Times report, "Government has not curbed public prosecutor's discretion for Section 377A: A-G Lucien Wong" (Oct 2).
Far from suggesting that the public prosecutor (PP) does not retain the sole discretion to prosecute, my Insight piece in The Sunday Times affirms and reiterates such prosecutorial discretion. And that is precisely why the present situation is so unsatisfactory.
Each new PP could very well take a different and subjective view of what circumstances merit prosecution.
In this connection, the following observations made by a current deputy attorney-general, Mr Hri Kumar Nair, on Oct 22, 2007 (in Parliament, while he was an MP), are both prescient and pertinent:
"...it is unclear what the current legal position is.
"...Does it mean that the police will not act on complaints or that suspects may be investigated but ultimately not arrested or prosecuted? Or is it the case that the Attorney-General (A-G), who has prosecutorial discretion, may prosecute some but not all offenders?
"That puts the A-G in a difficult position because selective prosecution will give rise to more issues. But if the intention is not to do anything at all, then what is the purpose of having the law? Does it not hurt our credibility that we have laws that are toothless?
"...in the long run, making some conduct criminal under our Penal Code whilst stating that the law will not be enforced, simply invites attacks on the integrity of the code."
As for the 2008 case referred to in the Attorney-General's Chambers statement, it is important to point out that the offending conduct in question occurred in September 2007, before parliamentary debates started. Further, the charge was not pursued although taken into consideration.
Reference might usefully be made to the 2010 case against Mr Tan Eng Hong. Mr Tan and his co-offender were initially charged under Section 377A, but the charges were withdrawn and substituted with different offences shortly after Mr Tan filed a challenge against the constitutionality of 377A.
As far as I am aware, these are the only instances when Section 377A was invoked after the 2007 parliamentary debates.
On Sept 8 this year, chief of government communications Janadas Devan made the following statement in his Facebook page: "But the Government does not and will not enforce 377A." This illustrates how ambiguous the present enforcement situation is."
AG Lucien Wong's reply
"Public prosecutor's stand on Section 377A consistent
Mr V. K. Rajah's letter states that: "Far from suggesting that the public prosecutor (PP) does not retain the sole discretion to prosecute, my Insight piece in The Sunday Times affirms and reiterates such prosecutorial discretion." (Opinion piece reiterates prosecutorial discretion; Oct 5).
In his Insight piece, Mr Rajah had said that: "Selective enforcement of laws undermines the rule of law, creating perceptions that prosecutions can be directed by the Government or pursued on non-legal grounds."
The purpose of my statement on Tuesday was to dispel any such perception by making it clear that where the police refer cases under Section 377A of the Penal Code to the PP, the PP exercises his discretion on whether to charge the offender and for what offence, based on his assessment of the facts, the law and the public interest.
In his letter, Mr Rajah himself affirms and reiterates this.
Mr Rajah will also agree that the PP is able to exercise such discretion without any interference.
I had also highlighted a 2008 case which illustrates the Government's and the prosecution's respective longstanding approaches to Section 377A cases.
Mr Rajah suggests that this case may not be relevant as the offending conduct occurred in September 2007, before the parliamentary debate on Section 377A.
However, the Government's position that the police will not proactively enforce Section 377A with respect to private acts had been made public since at least 2006.
When the Ministry of Home Affairs launched the public consultation on proposed amendments to the Penal Code, The Straits Times reported that: "While it is still technically illegal for men to have sex with other men, the ministry reiterated that it will not be proactive in enforcing this law against consensual acts that take place in private." (Law on 'unnatural' sex acts to be repealed; Nov 9, 2006).
The PP has consistently taken the position that, absent other factors, prosecution under Section 377A would not be in the public interest where the conduct was between two consenting adults in a private place.
This was the case when Mr Rajah was the PP and remains so today.
Bryan Choong files constitutional challenge
In November 2018, LGBT rights advocate Choong Chee Hong, better known as Bryan Choong, filed a case in the Supreme Court against the Attorney-General, stating that Section 377A was "inconsistent" with portions of the Constitution, and "is therefore void".
Choong, then 41 years of age, was the former executive director of Oogachaga, a non-profit organisation working with the LGBT community. According to court documents, Choong stated that Section 377A was inconsistent with Article 9 of the Constitution, which states: "No person shall be deprived of his life or personal liberty save in accordance with law." The two other portions deemed "inconsistent" were: Article 12, which states that all persons are equal before the law and entitled to its equal protection; and Article 14, which states that every citizen of Singapore has the right to freedom of speech and expression. Article 14 also states that all citizens of Singapore "have the right to assemble peaceably and without arms" and have the "right to form associations".
Choong, who declined to be interviewed by the media, was represented by Senior Counsel Harpreet Singh Nehal from Cavenagh Law, as well as a team from Peter Low and Choo law firm comprising lawyers Remy Choo Zheng Xi, Priscilla Chia Wen Qi and Wong Thai Yong. Responding to queries from The Straits Times, the
Attorney-General’s Chambers (AGC) said it had received the papers and was studying them. The AGC spokesman added: "We are unable to comment further as the matter is now before the courts."
Chan Sek Keong analyses rulings on constitutionality of 377A
On Wednesday, 20 February 2019, the NUS Faculty of Law's Centre for Asian Legal Studies organised a seminar entitled, "The Criminal Law on Morality and Constitutional Equality: The Road Not Taken". It lasted from 3:00pm to 4:00pm and was held at the Moot Court at NUS' Bukit Timah Campus. The speaker was Distinguished Fellow Chan Sek Keong, former Chief Justice of the Supreme Court of Singapore and the chairperson was Adjunct Professor Kevin Tan of the NUS' Law Faculty. In 2015, the Court of Appeal dismissed the appeals of Tan Eng Hong and Lim Meng Suang and upheld the constitutionality of Section 377A. The Court of Appeal applied the reasonable classification test and held that by inserting this then-new provision into the Penal Code, the Straits Settlements Legislative Council had intentionally targeted male homosexuals, and that so long as all male homosexuals were treated alike, there was no discrimination within the meaning of Article 12(1) of the Constitution. In the talk, Chan analysed both decisions of the High Court and of the Court of Appeal and proposed an alternative but legally and constitutionally coherent reading of the law. Many in the audience, which comprised mainly NUS law undergraduates although there were also academic and practising lawyers present, made detailed notes of Chan's lecture. These notes would later be shared with other human rights lawyers who felt that Chan's expert legal opinion and arguments could be used in a new challenge against the constitutionality of Section 377A.
8 months later, on Monday, 14 October 2019, Chan published an official 72-page academic paper based on his talk on e-First, the online prior-to-print publishing module of the Singapore Academy of Law Journal. It was entitled, “Equal justice under the constitution and Section 377A of the Penal Code - The Roads Not Taken”, ,.
The following were the paper's conclusions:
- Section 377A was not intended to cover penetrative sex, that is, anal or oral sex, when it was enacted in 1938 as the same offences had already been covered by Section 377 since 1872. Section 377A covers only non-penetrative sex, such as masturbation and other kinds of sexual touching and “lewd” acts.
- In so far as the Courts have decided that Section 377A does not violate the fundamental rights of equality before the law and equal protection of the law on the basis that Section 377A covers penetrative sex, the decisions are not binding on lower courts as being given per incuriam.
- If so, it is open to an applicant or defendant in a new action or prosecution to contend that Section 377A violates Article 12(1) of the Constitution on the ground that it unreasonably or arbitrarily discriminates against male homosexuals in respect of acts of gross indecency of a non-penetrative nature.
- If Section 377A had been enacted to criminalise penetrative sex covered under Section 377, it would have the effect of impliedly repealing the same offences in Section 377. If Section 377A had impliedly repealed those offences in Section 377 in 1938, those offences criminalised by Section 377A would have been impliedly repealed by Section 376(1)(a) in 2007 to the extent of their inconsistency, that is, with respect to consensual penetrative sex between males.
- Under Section 376(1)(a), consensual penetrative sex between males in private is no longer criminalised as an unnatural offence (because Section 377 has been repealed) but is punishable under Section 20 of the Minor Offences Act or Section 294(a) of the Penal Code, if performed in public.
- The legislative purpose or object of Section 377A determined at the time of its enactment in 1938 will always remain the same thereafter. Accordingly, the retention of Section 377A by Parliament in 2007 does not affirm or reaffirm its 1938 purpose.
- Section 377A was enacted for the purpose of dealing with the mischief of male prostitution and its associate activities (which involved male homosexual conduct) which were rife in 1938, and not because male homosexual conduct was not acceptable in Singapore society in 1938.
- The purpose of Section 377A as described above ceased to exist or was no longer valid in 2007 or 2013, or there was no evidence that similar conditions existed in 2007 or 2013. Accordingly, the legislative classification (or differentia) would no longer be reasonable and would not have rational relation to the purpose of Section 377A (having ceased to exist). Section 377A therefore cannot satisfy the requirements of the reasonable classification test and therefore violates Article 12(1).
- Section 377A, being a pre-constitution law, cannot be declared void for unconstitutionality because Article 162 requires any existing law to be construed to conform to the Constitution. Accordingly, the court has to interpret Section 377A by reading it to have a meaning that does not violate the Constitution. How Section 377A should be construed (or read) to conform to the Constitution depends on the nature of its inconsistency with Article 12(1).
- If the purpose of Section 377A has ceased to exist in 2007 or 2013, Section 377A may be construed to conform to the Constitution by reading it as a gender-neutral provision that criminalises non-penetrative sex of gross indecency committed in public.
PM Lee Hsien Loong: 377A will be around "for some time"
On Wednesday, 26 June 2019, Prime Minister Lee Hsien Loong took questions from the audience after his speech at the Smart Nation Summit held at the Marina Bay Sands. When asked by an unidentified member of the audience how Singapore's regulations could be made more diverse to attract tech talent, including those with other sexual orientations, Lee replied that Section 377A "will be around for some time" but it would not hinder the country's efforts to attract tech talent,.
On the issue of inclusiveness, Lee said that Singapore had been open to the LGBT community. “You know our rules in Singapore. Whatever your sexual orientation, you are welcome to come and work in Singapore,” he said. “But this has not inhibited people from living, and has not stopped Pink Dot from having a gathering every year. It is the way this society is: We are not like San Francisco, neither are we like some countries in the Middle East. (We are) something in between, it is the way the society is.” Such a “framework” would not hinder the technology scene here, added Lee. The Pink Dot event was set to take place that very weekend, on Saturday, 29 June 2019.
Pink Dot 2019 changes light-up message from "TOGETHER" to "REPEAL 377A"
Upset that PM Lee Hsien Loong had used Pink Dot as a showcase of how his government was accepting of the LGBT community while at the same time still refusing to repeal Section 377A, the organisers of Pink Dot 2019, who had made discrimination against LGBT people in Singapore their theme for the year, made a last-minute change of their climactic light-up message from "TOGETHER" to "REPEAL 377A". The tone of the event was also dramatically changed for the very first time in the group's 11-year history from one of docility to one of protest.
Roy Tan files constitutional challenge
On Friday, 20 September 2019, then 61-year old retired GP and long-time LGBT activist Roy Tan filed a new constitutional challenge in the High Court. He was represented by lawyer M Ravi who had joined Carson Law Chambers. The Attorney-General (AG) was listed as the defendant.
According to Tan, his challenge was based on "novel arguments". For example, the Public Prosecutor had discretion on whether or not to prosecute an accused person under Section 377A and the Government had said that the law would not be enforced against acts done in private. This was incongruous with Section 14 of the Criminal Procedure Code, which requires the police to unconditionally investigate all complaints of suspected arrestable offences. "This subjects gay men to the potential distress of an investigation into private conduct where they have a legitimate expectation that the state will decline to prosecute. It represents not only a contradiction between the Public Prosecutor's prosecutorial discretion and the non-discretionary carriage of criminal justice on the ground but is also a restriction on their personal liberty, which is not consistent with Article 9(1) of the Constitution."
The case also sought to challenge the Court of Appeal's previous ruling in 2014 that Section 377A was constitutional. The 3-judge Court of Appeal had then rejected two separate challenges by Tan Eng Hong, who was also represented then by M Ravi, and a gay couple, Gary Lim and Kenneth Chee. The highest court in Singapore upheld Section 377A, rejecting arguments that the provision contravened the Constitution. The court held that Section 377A did not violate Article 9 as the phrase "life and liberty" referred only to the personal liberty of a person from unlawful incarceration and not to the right of privacy and personal autonomy.
As for Article 12, the court held that Section 377A passed a test used by the courts in determining whether a law complied with the constitutional right of equality. In Singapore, the courts had used the "reasonable classification test" to determine whether a statute that differentiated was consistent with Article 12. Under this test, a statute that differentiated was constitutional if the classification was based on an "intelligible differentia" – a discernible distinguishing feature shared by those who were treated differently – and if the differentia bore a rational relation to the objective of the law. The court held in 2014 that the classification prescribed by Section 377A - men who performed acts of gross indecency with other men - was based on an intelligible differentia.
The court also ruled that Section 377A fell outside the scope of Article 12, which forbids discrimination of citizens on grounds including religion, race and place of birth. The court observed that Article 12 did not contain the words "gender", "sex" and "sexual orientation", which related to Section 377A. Tan felt that the court had erred in ruling that Section 377A passed the test and disputed that the law was based on an intelligible differentia. He said acts of "gross indecency" may take place between men only, women only and a mix of men and women, but "such acts cannot be meaningfully distinguished across the three classes". "However, Section 377A only proscribes acts between males. There is therefore no intelligible differentia as Section 377A was intended to proscribe acts of gross indecency,” he added.
During the pre-trial conference held on 8 October 2019, the court informed M Ravi that Tan's case, as well as the other two challenges filed in 2018 by Johnson Ong Ming and Bryan Choong were scheduled to be heard in chambers on 13, 15, 18, 20, 21 and 22 November 2019,,. All three cases would be heard in the presence of all the lawyers arguing for their respective plaintiffs on each of the dates. Tan said: "The court may ask questions directed at the lawyers of the other cases while they are all in the courtroom at the same time."
Yale-NUS talk on striking down of India's Section 377
On 11 November 2019, Yale-NUS organised a talk by Indian lawyer Menaka Guruswamy entitled, "Litigating freedom: the battle to overturn India's Penal Code 377". An anti-LGBT petition addressed to the Government was rustled up by someone with the name of Esther Lee on CitizenGo. It carried the heading, "Say NO to YALE-NUS Event Titled "LITIGATING FREEDOM...” Using Foreigners To Influence Our Nation’s Court Of Law!" and garnered over 10,000 signatures,.
Commenting on Facebook the same day that the talk was held, Law Minister K Shanmugam wrote:
"Several people have written to me, objecting to a talk to be given by Dr Menaka Guruswamy, today. The talk is organized by Yale-NUS College. She is slated to speak on what happened in the Indian courts, on s377. There is also a Petition asking the Government to stop her talk.
The main objection appears to be that legal challenges to s377A are about to be heard in Court, and this talk could be sub judice.
I don’t see a significant risk of sub judice. Dr Guruswamy is a Senior Advocate of the Supreme Court of India. One may agree or disagree with her views, but I am sure she knows about rules relating to sub judice; and I don’t see an objection to her speaking about the law, and what happened in the Indian Supreme Court, where their s377 was successfully challenged."
Bryan Choong's challenge
At 2:30pm on Wednesday, 13 November 2019, in a High Court hearing held in chambers, Justice See Kee Oon presided over the constitutional challenge of Choong Chee Hong, better known as Bryan Choong. Choong's court submissions adduced fresh evidence using documents from the United Kingdom’s National Archives that were only recently declassified between 2014 and 2016,. The newly surfaced historical files were argued as being vital in proving that Section 377A was meant to target commercial sex rather than to criminalise all consensual gay sex between men.
In their court filing, Choong’s lawyers - Senior Counsel Harpreet Nehal Singh of Audent Chambers, Remy Choo Zheng Xi, Priscilla Chia and Wong Thai Yong of Peter Low & Choo, and Jordan Tan of Cavenagh Law - argued that a 1940 report which was declassified in 2016 showed that the enactment of Section 377A by the British colonial legislature was in response to an “outbreak” of male prostitution in Malaya at the beginning of 1938. The report was addressed to George Gater, who held the title of Permanent Under-Secretary of State for the Colonies and made it “crystal clear” that there was a relationship between the two phenomena. The report detailed two cases in 1938, the year the law was enacted. The first, which took place three months before Section 377A came into effect, involved a colonial official named Reeves who was suspected of having relations with male prostitutes but was not charged initially as there was no proof. The second event involved another official, Rivaz, who was sacked as the charges, similar to those made against Reeves, were justified following the enactment of Section 377A. Choong’s lawyers also cited another case referencing a document dated 24 March 1938, which was declassified in 2014, in which a European warder of the Straits Settlements Prisons, Moses, resigned after being caught in January 1938 attempting to sodomise two male prostitutes. This document was a communication from Sir Thomas Shenton, governor and high commissioner of the Straits Settlements, to the secretary of state for the colonies. The lawyers argued that there was a “problem within the civil service of civil servants patronising male prostitutes” and that this gave rise to the law.
The legal team was building on arguments by gay couple Lim Meng Suang and Kenneth Chee whose challenge was rejected by the Court of Appeal in 2014. The lawyers considered a 1937 annual crime report, also used by the couple, that noted a discovery of a “widespread existence of male prostitution” in the British colony during the 1930s. The Court of Appeal in its 2014 ruling considered the possibility that Section 377A could have been enacted with the specific purpose of criminalising male prostitution, but ruled otherwise due to a lack of evidence. The court stated instead that the law was for “general application”. In their submissions, the lawyers said if the court held that the effect of Section 377A was not limited to commercial sex between men, the law would then be inconsistent with Article 12(1) of the Singapore Constitution, which states that all persons are equal before the law. They argued that the purpose of Section 377A, which was to criminalise male prostitution, did not match its current effects, and criminalises gay acts more generally. This way, the effect of Section 377A would be deemed “overly broad” and therefore, unconstitutional. The lawyers said: “It would be extraordinary to conclude in the face of the above evidence, in conjunction with the fresh documents, that the legislative purpose of 377A was anything other than (for the purposes of combatting male prostitution).” The legal significance of this conclusion, they said, is that if the purpose of Section 377A was to criminalise male prostitution only, then applying it to criminalise all homosexuals had gone overboard. “Should the analysis be any different just because the rights of a minority of the population (gay and bisexual men) are being trampled upon to further a narrow legislative purpose, which is to target male prostitution?” the lawyers asked.
The lawyers also floated a second argument that the colonial era rule was inconsistent with Article 14 of the Singapore Constitution, which protects the rights of all adults to freedom of expression through private consensual acts of sexual intimacy. They argued that Section 377A prohibited the right of “one class of adult citizens” – homosexual men – from expressing consensual acts of sexual intimacy. Describing the reach of the law as “absolute and categorical”, they said it had extended into the “privacy of one’s home and even long term, committed relationships”. Yet another part of their submissions argued that Section 377A was inconsistent with Article 12 of the Singapore Constitution, which states that all persons are equal before the law and are entitled to the equal protection of the law, and therefore unconstitutional. The lawyers questioned: “What would be the purpose of Article 12 if it only protected discrimination against the majority and not discrimination against the minority?”
Choong’s affidavit stated that the legal application was made because he believed that the right to equal protection under the Constitution could not just protect the personal intimacies and choices of some Singaporeans but not those of others. “What is at stake here goes to the very right of individuals like me, to define our humanity and to live this one life we each have in a way that is authentic and true to who we are,” he said. “Just as heterosexual couples have an interest in consensual intimacy, so, too, do adult gay couples.” Asserting that the original legislative purpose of Section 377A is “obscure and extremely cryptic”, he said: “The only ex post facto justification of Section 377A appears to be to send a message through the criminal law that the private intimate conduct of people like me is frowned upon by certain segments of our citizens. “There appears to be no other reason behind Section 377A.” He added: “Section 377A sends the message that gay men like me and many others are second-class citizens and lawbreakers, and this in turn adds to discrimination and misunderstanding throughout our society.” He also said that to say that there is nothing to fear because Section 377A will not be actively enforced is “not only inaccurate (gay men risk investigation), it adds insult to injury”. “It reinforces the fact that Section 377A serves no purpose but to discriminate against gay men,” he said.
Johnson Ong's challenge
The second case, that of disc jockey Johnson Ong, was heard at 10am on Monday, 18 November 2019 in the High Court and also presided over by Justice See Kee Oon. Ong's legal team, consisting of Eugene Thuraisingam, Suang Wijaya and Johannes Hadi of the Eugene Thuraisingam law firm, argued that Section 377A violated Article 9 of the Constitution guaranteeing the right to life and personal liberty, and Article 14 guaranteeing freedom of expression.
The lawyers presented expert evidence from six medical professionals to back up their claims, including three called by Ong and three called by the AGC. Those called by Ong were British psychiatrist Dinesh Bhugra, a professor of mental health and diversity at the Institute of Psychiatry at King's College London; Dr Jacob Rajesh, a senior consultant psychiatrist at the Promises Clinic in Novena Medical Centre; and American public health and epidemiology professor Chris Beyrer of the Johns Hopkins Bloomberg School of Public Health. Those called by the AGC were Dr Cai Yiming, an emeritus consultant in the Department of Developmental Psychiatry at the Institute of Mental Health; retired geneticist John Tay Sin Hock, who was the former Head of Division of Human Genetics at the National University of Singapore; and Dr Derrick Heng Mok Kwee, group director of the Public Health Group in the Ministry of Health.
The experts on both sides largely agreed that sexual orientation could not be wilfully changed and that biological factors such as one's genes and non-social environmental factors such as exposure to different levels of hormones in the womb were contributors to one's sexual orientation. There was also no credible scientific evidence that "therapy" aimed at changing sexual orientation, such as reparative or conversion therapy, was safe or effective, they added.
But the experts differed on whether choice and social environmental factors like culture played a role in determining sexual orientation. Dr Cai said there is "very little we can scientifically conclude about whether there is choice in sexual orientation". Dr Tay said that genetics may play some part in determining sexual orientation but are not the sole cause of it, suggesting that culture plays a role as well. Ong's lawyers contended that the scientific literature cited by Dr Cai contradicted his conclusion. They also argued that Dr Tay did not cite any evidence to support his conclusion that cultural factors play such a role.
"It is absurd, irrational and discriminatory to criminalise a person on the basis of his natural, unchangeable identity and for non-harmful private acts," the team said in a statement to the media summarising their arguments. The lawyers noted that their case differed from a previous case brought against Section 377A in 2010 by Tan Eng Hong, whose lawyer had argued that there was overwhelming evidence that a person's sexual orientation was biologically determined. Tan had provided the court with statements from medical and scientific bodies which were not formally entered as evidence, they said. "For the first time, there is expert evidence before the courts on the nature of sexual orientation. In the previous cases, the court was only asked to take judicial notice of scientific facts which required a different legal test," the lawyers said in their statement.
Roy Tan's challenge
The third case, brought by LGBT activist and retired general practitioner Tan Seng Kee, better known as Roy Tan, was also heard on Monday, 18 November 2019 in the High Court. Representing Dr Tan was human rights lawyer M Ravi who addressed the court on their arguments which centred on the incongruence between Parliament's decision not to proactively enforce Section 377A on the one hand, and important sections of the Criminal Procedure Code and the Penal Code on the other, and how this contravened Article 9(1) of the Constitution which states “No person shall be deprived of his life or personal liberty save in accordance with law”,.
Section 424 of the Criminal Procedure Code
One of Ravi's arguments was that the policy of non-proactive enforcement of Section 377A rendered the statute arbitrary in a way that it no longer constituted "law" within the meaning of Article 9(1), thereby making it unconstitutional. Ravi highlighted Section 424 of the Criminal Procedure Code (Duty to give information of certain matters) which states that the commission of such acts as mentioned under Section 377A, the intention to commit, or the knowledge of commission of such acts by others must be reported to the police. Failure to do so was punishable by up to 6 months' imprisonment or a fine of up to $3,000 as specified under Section 176 of the Penal Code (Omission to give notice or information to a public servant by a person legally bound to give such notice or information). Ravi argued that retaining Section 377A therefore doubly criminalised gay and bisexual men - on the first level, for committing acts prohibited under Section 377A and on the second level, for not reporting those acts to the authorities. As such, Section 377A, when read with Section 424 of the CPC and Section 176 of the Penal Code, infringed on the right of these men to life and liberty afforded to them under Article 9(1) of the Constitution. The lawyer also argued that Section 424 of the Criminal Procedure Code was another uncertain and inconsistent aspect of the enforcement of Section 377A since people might not be aware whether a failure to report such acts, given the Attorney-General’s non-prosecution policy, constituted a reasonable excuse not to do so. Furthermore, Ravi argued that Section 424 obliged gay and bisexual men to report their sexual activities or intentions to the police while also imposing an obligation on their friends, families, and even neighbours to do the same. He said: “This leads to an absurd and arbitrary application of Section 424 on openly gay and bisexual men as it may subject them to surveillance by their acquaintances as well as to the humiliating and degrading acts of enforcement mandated by the law.”
On the matter of obligating health professionals to report patients who violate Section 377A as well, Ravi argued that while an affidavit filed by Dr Derrick Heng on behalf of the AG asserted that the Ministry of Health “will not require its healthcare professionals to report patients to the police if they are aware that the patient has male sex partners, or even if the patient is HIV-positive,” this was also contrary to Section 424. The latter rendered criminal the omission of healthcare professionals in the civil service to report their patients to the police if they were aware of the sexual acts of their gay or bisexual patients. In this regard, contrary to the AGC’s assertion, the healthcare professionals were faced with the spectre of prosecution.
In terms of the enforcement of Section 377A, Ravi said: “The discretion vested in the Attorney-General towards the non-prosecution of sexual conduct between consenting male adults in private needs to be considered against this statutory obligation imposed on the police to investigate complaints.” He added that the circumstances in which the private sexual conduct between two consenting men would be investigated or prosecuted were unpredictable and vague.
Section 119 of the Penal Code
The third prong of this argument was that Section 119 of the Penal Code (A public servant concealing a design to commit an offence which it is his duty to prevent) also made it an offence for public servants not to take action against those who might commit offences, including those outlined under Section 377A. In fact, it was the duty of a civil servant to prevent the commission of offences or risk being caught by Section 119. To illustrate this, the lawyer gave an example of a domestic worker reporting to the police that her male employer was having sex with a consenting adult male. In such a case, the police are mandated by law to prevent the offence from taking place. Failing to do so would result in a criminal penalty as outlined in Section 119 - "imprisonment for a term which may extend to one-half of the longest term provided for that offence, or with such fine as is provided for that offence, or with both". Ravi argued that based on the evidence that the police will never, in practice, investigate allegations of private consensual sexual activities between men, it followed that Section 377A was arbitrary since it had no practical effect on law enforcement or alleged aims behind the legislation. “Instead it only serves to identify gay and bisexual men as potential criminals and gives rise to fear that they may, one day, be prosecuted,” he said.
In his conclusion, Ravi said “A measure will not qualify as “law” where it is so absurd or arbitrary a nature that it could not have been contemplated by the framers of our constitution as being “law” when they crafted the constitutional provisions protecting fundamental liberties. By extension, a provision which occasions an approach to enforcement which is absurd or arbitrary may also infringe Article 9(1).”.
In presenting its arguments to Justice See Kee Oon on Wednesday, 20 November 2019 in response to the three challenges before the High Court, the Attorney-General’s Chambers said that the question of whether or not to repeal Section 377A was a deeply divisive socio-political issue that should be decided by Parliament, not the judiciary, noting that this was the same position adopted by the Court of Appeal in 2014,,. In a 124-page written submission, the AGC noted that in 2014, the Court of Appeal had dismissed a similar challenge. It ruled then that the law, which criminalised acts of "gross indecency" between men, was consistent with the Constitution of Singapore. The AGC said in its submission that the High Court was bound to follow the decisions of the Court of Appeal, which was the highest court in Singapore, and should therefore dismiss the three recent cases. This was a key point presented by the AGC's lawyers, Deputy Chief Counsel Hui Choon Kuen, Deputy Senior State Counsels Denise Wong and Jeremy Yeo, and State Counsel Jamie Pang.
The AGC asserted that the role of the courts was to apply the law, not to determine social policy. It also noted that in other major jurisdictions such as Britain and Hong Kong where laws similar to Section 377A had been abolished, this was done by the legislature. A repeal of Section 377A would involve complex social and political considerations. These included religious sensitivities, conservative views on family and non-religious or non-traditional views that needed to be finely balanced. Parliament, which dealt with complex socio-political matters, was better placed to handle such issues compared to the judiciary, which was constrained by more restrictive procedures, the AGC said. It noted that the courts could only receive information that satisfied the rules of admission of evidence, but Parliament could consider information that did not, such as public sentiment. Parliament would also be able to implement "change management" if it decided to repeal the law, such as engaging relevant communities and their leaders to explain the rationale for the change and assuage any unfounded concerns.
Indian Supreme Court's decision irrelevant to Singapore
They argued that an Indian court’s decision to lift a ban on consensual gay sex in September 2018 was irrelevant to Singapore as the two countries took vastly different approaches to constitutional interpretation and review. Unlike the Indian courts, which recognised concepts such as “transformative constitutionalism”, the “progressive realisation of rights”, and the “doctrine of non-regression”, the Singapore courts did not view themselves as a driver of social change or transformation. And as the Singapore Constitution currently stood, there was no “free-standing” right to sexual freedom or privacy, so it could not be said that it was absurd and arbitrary to deprive homosexuals of their chosen form of sexual conduct. Also, concepts like privacy, human dignity and sexual identity could not be conferred the status of constitutional rights as they remained formless in Singapore versus “concrete rights” such as religion, free speech and freedom of movement, which were upheld with qualifications, within the context of larger interests such as public order and security.
“Unqualified rights inherently contradict a key tenet of our Constitution, which is that the interest of the larger community is placed over the interest of the individual,” they added. The Constitution also called it a violation only when laws discriminated against a citizen on grounds of religion, race, descent, or place of birth, they pointed out. The words “gender”, “sex” and “sexual orientation” were absent in this part of the Constitution, whereas the Indian Constitution expressly prohibited discrimination against any citizen on the grounds of sex. Renegotiating these areas was, anyway, out of the court’s reach, the state counsels stressed, as Parliament had the final say on the ambit of public order and morality. “It is Parliament, and not the courts, that should decide the deeply divisive socio-political issue of whether Singapore should continue to criminalise male homosexual sex acts,” they argued.
Against ex-Chief Justice's comments
The submissions also addressed the widely-discussed arguments of former Chief Justice Chan Sek Keong, although he was not an applicant. The state lawyers submitted that Chan's argument, that the original purpose of Section 377A was "impliedly repealed" when Section 377 was repealed in 2007, did not hold water. Section 377 covered penetrative sex acts "against the order of nature". In that same Bill that Parliament passed in 2007, Section 376 was added to criminalise non-consensual penetrative sex with a sub-section dealing with male-on-male acts of this type. “With all due respect, his argument is unconvincing,” the state counsels wrote. “It does not logically follow that just because a provision making non-consensual penetrative sex illegal is enacted, an earlier provision covering consensual penetrative sex is impliedly repealed.” They went on to note that Parliament proceeded on the basis that Section 377A covered penetrative sex acts and, after a debate, decided to retain it as a reflection of social morality concerning male homosexual sex acts. “How can we find that Parliament implied a result completely opposite to the result that Parliament expressly came to?” they said.
Disagreement on 377A's narrow purpose to fight male prostitution
Chan had also argued that the original purpose of Section 377A, when it was enacted in 1938, was meant to deal with a rising trend of male prostitution. This was a point advanced by Bryan Choong’s lawyers as well, who backed their argument with newly declassified documents from the United Kingdom’s National Archives. But the state counsels said Section 377A was listed under the heading “Unnatural Offences”, which suggested that its purpose was linked to the inherent quality of the acts it prohibited. Therefore, Section 377A should be seen to be for “general application”, and not that it was to serve a narrow purpose of combating male prostitution, they said. Making mention of Chan’s argument that Section 377A served no legitimate purpose since the prevailing policy was to not proactively enforce it, they added: “Section 377A is fully able to serve its purpose, which is to send a certain moral signal, by its mere existence regardless of whether and how it is enforced. This is a “common-sense argument.”
377A not as absurd as law banning left-handed people from using lifts
Regarding Johnson Ong’s arguments that Section 377A violated the Constitution as it was “absurd and arbitrary" to criminalise a person on the basis of his natural, unchangeable identity, the state counsels argued that a law could only be considered as such if it was regarded by “all reasonable persons as clearly absurd and arbitrary”. While a law that banned left-handed people from using lifts might qualify as absurd and arbitrary, “clearly, a law that prohibits male homosexual sex acts, in private or public, is not one that all reasonable persons in Singapore would think was absurd and arbitrary”, they said. Such an extremely high threshold was required to guard against judicial overreach and the collapse of the separation of powers between different organs of state, they added.
On Ong’s argument that homosexuality was inborn and immutable, they argued that it was clear that all experts consulted by him and the Government agreed that sexual orientation was the result of a complex interplay between biological and cultural factors. While genetics may play some part in determining sexual orientation, it was not the sole cause, they said, further noting that the state of scientific knowledge had not significantly progressed since 2014, when Section 377A was last challenged before the courts. They also argued that Section 377A was not to punish someone based on his mere existence, but targeted homosexual sex acts. Even Ong’s experts had acknowledged that a person experiencing homosexual attraction could voluntarily control whether to perform the act or not, they added.
Arguments against Roy Tan's position
In its statement to the media, the AGC also addressed Dr Roy Tan's lawyer, M Ravi's point that other laws such as Section 424 of the Criminal Procedure Code (CPC) made it legally obligatory for anyone to report those who violated Section 377A. This included gay men themselves, their friends or family members, and their medical care providers. Parliament's stance that Section 377A would not be proactively enforced led to "an inconsistent and arbitrary application of criminal procedure", Ravi had argued. It was also incongruent with the mandatory obligation under Section 424 of the CPC. The AGC responded in its statement: "The Attorney-General has already stated that where the conduct in question was between two consenting adults in a private place, the Public Prosecutor's position is that, absent other factors, prosecution under Section 377A would not be in the public interest. It would naturally follow from this position that any prosecution under other provisions which would contradict the non-prosecution position of Section 377A would likewise not be in the public interest."
Ravi had also argued that Section 377A was not consistent with parts of the Constitution addressing personal liberty, equal protection, and freedom of speech, assembly and association, so it should be considered void by virtue of Article 162 of the Constitution. Article 162 allowed for modifications, adaptations, qualifications or exceptions to be made to laws if they were not consistent with the Constitution, but the state counsels’ claim was that Section 377A conformed with the Constitution. The AGC's responded: “What the court does not have the power to do under Article 162 is to strike down the law, whether in whole or in part. The applicant was clearly asking the court to do something which it has no power to do.”
High Court dismisses all 3 actions
- See also: Archive of High Court judgment in Ong Ming Johnson, Choong Chee Hong and Tan Seng Kee v AG, 30 March 2020
The High Court's verdict was delivered in chambers 4 months later, on Monday, 30 March 2020 at 3pm. Justice See Kee Oon dismissed the court action of all 3 men and initially announced that the full judgment would be delivered at a future date. However, it was eventually released only a few hours later,. See said the decision by the Court of Appeal in 2014 remained binding,. "I am unable to agree that there are cogent reasons for a Singapore court to be able to depart from binding decisions of the highest court in the land," he said in a 105-page written judgment. The High Court had reached the same conclusions as the Court of Appeal, even after taking into account new material put forth by the plaintiffs.
Regarding Johnson Ong's arguments that Section 377A criminalised gay men on the basis of their identity, Justice See said there was no comprehensive scientific consensus on whether a person's sexual orientation was immutable. The court was also not the appropriate forum to seek resolution of a scientific issue that remained controversial, he added. "Any controversy is best addressed by the relevant scientific community itself. Ultimately, the issue is an extra-legal one that does not come under the proper purview of the courts," he explained. He also noted that Section 377A criminalised homosexual acts and not a person's sexual orientation or identity in itself. "Hence, sexual orientation per se, or whether the male person in question identifies himself as bisexual, heterosexual or homosexual, is completely irrelevant," he pointed out. "A heterosexual male can equally be prosecuted under Section 377A if he commits such an offence."
Rejecting Bryan Choong's arguments that Section 377A was originally intended to curtail the spread of male prostitution, not consensual private sexual acts between men, and that the law was not intended to criminalise penetrative sex, which was covered under Section 377, a separate law that was repealed in 2007, Justice See said Section 377A was intended to safeguard public morals generally as well as enable enforcement and prosecution of all forms of gross indecency between men. He elaborated: "Section 377A is not limited to commercial sex between males. It is framed widely enough to cover all forms of male homosexual activity including penetrative and non-penetrative sex, whether in public or in private and with or without consent." He also noted that Section 377A did overlap with the now-defunct Section 377, but that there was "no exclusionary intent" to avoid this overlap when the laws were introduced. The Penal Code also contains "numerous examples of overlapping offences", he added.
Roy Tan had argued that it was "absurd and arbitrary" to allow the law to remain on Singapore's statutes given that the Government's official policy position was non-enforcement in respect of consensual homosexual acts in private between men. But Justice See noted that Tan had taken issue with the enforcement of Section 377A and not the constitutionality of the law itself. These issues were separate and distinct, he said, adding that the manner in which a provision was enforced, even if arbitrary, could not in itself render the provision unconstitutional. "The appropriate recourse in such a situation would be to seek administrative review, not constitutional review," he advised.
Roy Tan files High Court application for mandatory order compelling Cabinet to move parliamentary bill to repeal 377A
- See also: Remedies in Singapore administrative law
- See also: Remedies in Singapore constitutional law
On Tuesday, 1 December 2020, Roy Tan, filed an application in the High Court seeking a declaration that Section 377A was incongruent and inconsistent with Sections 119 and 176 of the Penal Code, Sections 17 and 424 of the Criminal Procedure Code, Section 9A (1) of the Interpretation Act and Articles 9(1) and 12(1) of the Constitution of Singapore,,,. He also argued that the Attorney-General’s position - that it would naturally follow that any prosecution under other provisions which would contradict the non-prosecution stance for male homosexual adults indulging in consensual sex in private would likewise not be in the public interest - rendered Section 377A otiose a fortiori.
Tan, represented by lawyer M Ravi, furthermore sought a mandatory order compelling the members of the Cabinet to move a Bill in Parliament to repeal Section 377A. Under the Supreme Court of Judicature Act (Section 18 (2) read with the First Schedule), the High Court could issue "any person or authority any direction, order or writ for the enforcement of any right conferred by any written law or for any other purpose". Tan applied for the mandatory order because Section 377A had become dead letter and its retention in the face of Sections 17 and 424 of the Criminal Procedure Code, Sections 119 and 176 of the Penal Code and Section 9A of the Interpretation Act was unlawful due to the Executive’s decision not the enforce Section 377A. Under Section 9A (1) of the Interpretation Act, the courts were required to interpret a written law in a way that promoted the purpose or object underlying that law. Parliament's undertaking not to proactively enforce Section 377A rendered the courts unable to perform their legal obligation.
Appeal against High Court's dismissal
At 10am on Monday, 25 January 2021, appellants Roy Tan Seng Kee, Johnson Ong and Bryan Choong Chee Hong had their cases against High Court Justice See Kee Oon's dismissal of their constitutional challenge heard simultaneously in Court 9A of the Court of Appeal. Owing to the ongoing Covid-19 pandemic, the proceedings, open to the public but with social distancing implemented in the spectator gallery seating, were held via a Zoom meeting between the panel of 5 judges - Chief Justice Sundaresh Menon, Andrew Phang, Judith Prakash, Tay Yong Kwang and Steven Chong - and the appellants' respective lawyers in their offices.
CJ Sundaresh Menon said the "political compromise" struck by the Government in 2007 - to keep Section 377A but not enforce it - should be a factor in determining whether the law, which criminalised sex between men, passed muster. He noted that the legislative act of retaining Section 377A and the undertaking by the Government not to enforce the law had to be factored into the equation. He said: "In assessing the constitutionality of 377A today, you have to look at the total package."
The appellants contended that Section 377A should be struck down as it violated, amongst other statutes, Article 12 of the Constitution, which guaranteed equality before the law. They argued that the law criminalised sex acts only between homosexual men, but not acts between homosexual women or heterosexuals. Bryan Choong's lawyers, Senior Counsel Harpreet Singh Nehal and Jordan Tan, said men were being treated unequally because women could not be punished for acts of gross indecency. Singh also argued that constitutionality ought to be assessed independently of the undertaking which would not be binding on future governments. He pointed out that Parliament's stance of non-enforcement did not preclude such cases from being taken before the courts anyway because the public prosecutor’s exercise of prosecutorial discretion was unfettered, as Attorney-General Lucien Wong had stated so himself on 2 October 2018. “The present Attorney-General cannot bind the discretion of the future Attorney-General. The net result is that this undertaking cannot bind either the current government or future government’s decree,” he explained. This situation was therefore “unsettling” for members of the gay community because there was still a real threat of police investigation once a report relating to Section 377A was made, even for private consensual conduct in one’s home. He suggested that an appropriate legal remedy would be to remove from Section 377A the words “in private”, saying “At least, (that would be) entirely consistent with the bargain struck in 2007.”
Johnson Ong's lawyer, Eugene Thuraisingam, argued that it was absurd to criminalise a particular sexual orientation when scientific evidence showed that sexual orientation could not be voluntarily changed and it was not caused or influenced by social factors. He also raised a technical legal argument, pointing out that the arbitrariness of Section 377A was amplified by the fact that it targeted male homosexual conduct specifically, when the available evidence - including the 2007 legislative debates - indicated that its intent was to advance an alleged social morality against homosexual conduct generally. He pointed out that the court should consider bringing to criminal law a certainty in the foreseeable future as to whether there were risks of a person being prosecuted. He asked, “What legitimate expectation could there be when you know that even the Attorney-General’s powers are not fettered by what Parliament has said. The Attorney-General has got the duty to act independently, so, really, what legitimate expectation are you talking about?”
Roy Tan's lawyer, M Ravi, said the ambiguity inherent in Section 377A created uncertainty as to how other criminal provisions should be construed. For example, under Section 424 of the Criminal Procedure Code, a person who was aware of another person's offence had to report it to the police. Ravi said it was unclear if gay men would be prosecuted for failing to report homosexual activity. Ravi refuted a point in the AGC’s submission, which stated that the court should find that a law is absurd in the substantive sense only if it is based on an “extremely high threshold” such as a law that bans left-handed people from using elevators. He argued, “From the AGC’s point of view, the scientific evidence does not conclusively show that sexual orientation is immutable or cannot be wilfully changed, or both. But this also applies to people who are left-handed. Some people consider themselves born left-handed or some who are left-handed choose to be right-handed. Many left-handed people still choose to learn to write with their right hands because society has deemed them as different.” Arguing that Section 377A should then be found as an absurd law by the same logic, Ravi said: “Both are laws that are absurd and distinguish a special class of people who are not allowed to behave in the way they are supposed to.”
State Counsel Kristy Tan, senior director of the advocacy group of the AGC, represented it in making oral submissions during the session. She noted that the appellants were trying to recast the issue as a technical and legal one to be decided by the courts, but the same arguments were dismissed by the Court of Appeal in 2014. She said: “This socially controversial issue falls within the realm of the legislature. The judiciary, through previous cases, has said that the courts are not the appropriate forum to consider a legal change which raises serious political and social issues. It is squarely a decision for Parliament, comprising the elected representatives of the people, to determine on behalf of Singaporean society.” She said scientific evidence on sexual orientation remained inconclusive and the court was not the appropriate forum to settle the matter. She argued that although Section 377A only covered men, this distinction was rational as the purpose of the provision in 1938 was to express society's views about sex acts between men. At one point, Justice Prakash asked Tan whether successive governments would be bound to the position of the present Government. “My question really is, if we think that this is a discriminatory piece of legislation, then should we allow it to remain on the books on the basis of an undertaking by the present Government? Because we cannot foresee the future.” Tan said that if successive governments were to take on a different position, a resurrected challenge could always be brought forward. “It would certainly not preclude the court or any litigant from asking for the issue to be relooked,” she added. Justice Prakash was not satisfied with the answer, saying: “But that’s not my point. Of course, somebody would come along and challenge it at that stage. But would it be correct for us to say, ‘Well, it can stay because it is not being enforced and the balance has been achieved’ - if we think that it is not constitutional.”
Singapore's third Universal Periodic Review
During Singapore's third UPR, which took place on 12 May 2021, about a dozen UN members, especially the developed nations, recommended that Singapore eliminate all forms of discrimination against her LGBT citizens, in particular via the decriminalisation of same-sex relations between men:
Chan Heng Chee: "Finally, I will touch on the LGBT issue, which was raised by the United States, Sweden, countries from the European Union, Australia, Iceland, Ireland, Israel, Luxembourg, and New Zealand, among others. Let me reiterate that for Singapore, the LGBT community are valuable members of our society. The Government does not tolerate violence, abuse, discrimination, and harassment against the community. An annual Pink Dot event in Singapore has been organised by the LGBT community for the past 12 years. While Section 377A of the Penal Code remains on the books, the Government has stated clearly that it is not enforced. In the context of Singapore, where attitudes towards homosexuality are still evolving, and various communities hold different views, any move by the Government must take into consideration the sentiments of all communities. We believe it is better to let the situation evolve gradually."
Court of Appeal dismisses challenges but declares 377A "unenforceable"
- See also: Archive of Court of Appeal judgment in Tan Seng Kee v AG and other appeals, 28 February 2022
On Monday, 28 February 2022, the Court of Appeal released its judgment in Tan Seng Kee v AG and other appeals firstly at 10am to the 3 appellants' lawyers and later at noon to the media,,,,,,,,,,. The court, led by Chief Justice Sundaresh Menon, upheld the High Court's decision to dismiss the three challenges to Section 377A but declared that the statute was “unenforceable in its entirety” until the Attorney-General of the day signalled a change in the prosecutorial policy. Reacting to the court's decision, Roy Tan described it as a “partial but significant victory for the LGBT community”. He said: “Although, on the surface, it may be disheartening that the apex court has not ruled Section 377A unconstitutional, it has however declared the statute "unenforceable". This will have numerous legal and social ramifications that will play out in the months and years to come.” Tan said he had filed an application in the High Court seeking an order to compel the Cabinet to move a Bill to repeal Section 377A. Tan's lawyer, M Ravi, also elucidated his views during a press conference held soon after the release of the judgment,,:
In a 152-page written judgment delivered by Chief Justice Sundaresh Menon on behalf of a five-judge panel, the Apex Court stressed that the appeals were "not about whether Section 377A should be retained or repealed", as this was "a matter beyond our remit". "Nor are they about the moral worth of homosexual individuals," said the Chief Justice. He quoted Prime Minister Lee Hsien Loong's words that homosexual individuals are "part of our society" and "our kith and kin". The appeals were also "not about the fundamental nature of sexual orientation (whether immutable or not)", this being an "extra-legal question well beyond the purview of the courts", he said.
The appeals were instead about whether Section 377A was inconsistent with the Constitution, but even this was a "deceptively easy answer" that "belies the underlying complexity of the issues that are before us", said the Chief Justice. The Court of Appeal held that the entirety of Section 377A was "unenforceable" unless and until the Attorney-General of the day provided clear notice that he, in his capacity as the public prosecutor, intended to reassert his right to enforce the law by way of prosecution and would no longer abide by representations made by the then AG in 2018 as to the prosecutorial policy that applied to certain conduct.
Chief Justice Menon said it was therefore "unnecessary" for the Court of Appeal to address the constitutional questions raised by the appellants. "They do not face any real and credible threat of prosecution under Section 377A at this time and therefore do not have standing to pursue their constitutional challenges to that provision," said the Chief Justice.
The judgment laid out a summary of the "political reality" surrounding Section 377A in three main points. "First, although Section 377A was retained in our statute books, this was on the terms that it would not be proactively enforced," said the Chief Justice. "The Government's evident unwillingness to repeal Section 377A signals its assessment that society has yet to adequately integrate the opposing views of mainstream conservatives and the homosexual community, as well as its awareness that our multi-racial, multi-lingual and multi-religious community remains vulnerable along such fault lines. The Government was especially cognisant that forcing the issue would polarise those who are 'presently willing to live and let live'." Second, the retention of Section 377A in 2007 "was directed at addressing a deeply divisive socio-political issue in a pragmatic way", the court said. The decision not to repeal Section 377A then "was a legislative one that was informed not by the purpose behind the enactment of the provision some seven decades earlier, but by the Government's objective of striking an optimal compromise between competing interests in our society and accommodating differing perspectives on homosexuality", said Chief Justice Menon. Third, the purpose of the "political compromise" on Section 377A that was reached in 2007 was to "strike a careful balance between the opposing interests of various groups". "The retention of Section 377A served to accommodate the views of the more conservative segments of society, while the caveat that Section 377A would not be proactively enforced served to accommodate the interests of homosexual individuals and to allow them to live their lives in as full a space as is presently possible," said the Chief Justice.
Other points that the Court of Appeal made in its judgment include the following: First, the right to express one's sexual identity, even in private, was not an express constitutional right. Second, Section 377A was not an "absurd" law, and "many reasonable people do in fact see Section 377A as being morally justified", as evident from parliamentary debates. "Numerous parliamentarians spoke up in favour of retaining Section 377A, often on the ground of safeguarding societal morality and with the recognition that a sizable segment of our society regards homosexual behaviour as unacceptable," said Chief Justice Menon. The Apex Court agreed with High Court judge See Kee Oon that Section 377A did not violate Article 9(1) of the Constitution of Singapore, which stated that no person shall be deprived of his life or personal liberty save in accordance with the law. AGC's lawyers reiterated the Government's position that the police will not take proactive action to enforce Section 377A.
Reaction of LGBT community
- Main article: Reaction of LGBT community to Court of Appeal ruling in Tan Seng Kee v AG and other appeals, 28 February 2022
In stark contradistinction to M Ravi's sanguine interpretation of the judgment, the other appellants, as well as the vast majority of LGBT groups were dismayed at the news. Johnson Ong said: “I am disappointed with the outcome but the ruling does not mean the end of the community’s pursuit for equality.” He added that it will take more time before the community finds full recognition and acceptance by policymakers and society. Bryan Choong penned on his Facebook: "Needless to say, we are upset and disappointed with the judgment. Many of you must be feeling just as emotional as those who have worked relentlessly on this... Today's judgment from the Court of Appeal does not mean our work to make Singapore a more inclusive and accepting society will stop." Pink Dot SG said it was "profoundly disappointed" by the court’s decision, adding, "The acknowledgement that Section 377A is unenforceable only in the prosecutorial sense is cold comfort. Section 377A’s real impact lies in how it perpetuates discrimination across every aspect of life - at home, in schools, in the workplace, in our media, and even access to vital services like healthcare." Ready4Repeal published a community statement from various LGBT groups in Singapore on its Facebook page.
Analysis by law academics
Legal academicians pointed out that although the Apex Court ruled that Section 377A was "unenforceable in its entirety", it did not conclusively rule on whether the provision was constitutionally valid and therefore, the issue remained open. Marcus Teo, a Sheridan Fellow from the law faculty of the National University of Singapore (NUS), said that the judgment had given homosexual men “clear legal certainty” that they would not be prosecuted under Section 377A, adding that the Court reasoned that this would uphold the Government’s promise made over a decade ago that “homosexual individuals would not be harassed and could live freely within the space afforded to them." Assistant Professor of Law Benjamin Joshua Ong from the Singapore Management University (SMU) said that the ruling had a broader effect than the AG's previously stated policy, adding that in 2018, it was not in the public interest to enforce Section 377A against "consenting adults in a private place". However, the Court of Appeal now held that Section 377A was not enforceable altogether in any case. Associate Professor of Law Eugene Tan, also from SMU, agreed that the ruling provided legal protection that sexually active homosexual men had sought since Prime Minister Lee Hsien Loong pronounced in 2007 that Section 377A would not be actively enforced, even though Parliament ruled to retain it. However, both Marcus Teo and Benjamin Ong said that the ruling did not mean any male-male sexual intercourse was now legal. General laws such as those criminalising sexual intercourse with a minor still applied to everyone. This meant that, for example, if two men had sex in public, they could not be prosecuted under Section 377A, but could instead be prosecuted under a law that criminalised public indecency by anyone. Ong said: “In my view, that is a positive development as the charge would then accurately reflect the gravamen of the offence. When two people have sex in public, the crux of the wrong is that it is public indecency; whether or not they are men is irrelevant.”
As for the legal ramifications arising from the judgement, Assoc Prof Eugene Tan of SMU said that the position on homosexual sex still “remains rather untidy” even with the court’s decision. It raised the question of whether Parliament would provide further clarity beyond its 2007 stance and the court’s legal protection. He added that this could be done by amending Section 377A, by striking out the words "or private". Separately, Asst Prof Benjamin Ong pointed out that the Court of Appeal had now clarified that the AG could not prosecute someone for failing to report conduct covered by Section 377A to the police. In terms of the constitutionality of Section 377A, because the Court of Appeal did not express a concluded view on it, someone could argue again that it was unconstitutional should the AG change his policy on non-enforcement. Its remarks that Section 377A did not violate Article 9(1) of the Constitution were not binding and the issue remained open, Ong elaborated. Marcus Teo from NUS said that the judgement had further discussed important points of law under the Constitution of Singapore in relation to constitutional guarantees to life and liberty, freedom of expression and equality.
Reaction of Government
On Thursday, 3 March 2022, MP Derrick Goh from Nee Soon GRC asked about the Government's position on the Court of Appeal ruling while speaking during the Parliamentary debate on the budget of the Ministry of Home Affairs,,. In response, Home Affairs Minister K Shanmugam noted that the Government had explained its stand on the issue when the Penal Code was amended in 2007, but Section 377A was left unchanged. During the parliamentary debate on the issue at that time, Prime Minister Lee Hsien Loong had said Singapore wants to be "a stable society with traditional heterosexual family values, but with space for homosexuals to live their lives and to contribute to society. Among them are some of our friends, our relatives, our colleagues, our brothers and sisters, or some of our children... our kith and kin," PM Lee had added. Referring to Lee's remarks in 2007, Shanmugam reiterated: "This remains our stand today." ,,
He noted that the issues surrounding Section 377A were deeply divisive, and that is why Singapore had taken a "live and let live approach". "We seek to be an inclusive society, where mutual respect and tolerance for different views and practices are paramount," he added. That is why the Government had taken the approach that while Section 377A remained on the books, there would be no proactive enforcement. He said that the AGC took a similar approach. Under the law, there were protections for the LGBT+ community, he explained, citing how the Government had expressly included in the Maintenance of Religious Harmony Act that any attack on any member of the LGBT community because of his or her identity, or on LGBT+ groups, would be an offence, and would not be tolerated. "LGBT individuals are entitled to live peacefully, without being attacked or threatened," he quipped. "Likewise, any attack on any other group, based on their religion or religious beliefs, even if those beliefs run counter to values held by LGBT+ groups, will not be acceptable."
Shanmugam said Singapore's emphases on gradual evolution and on traditional families remained constant. However, he pointed out that social attitudes towards homosexuality had gradually shifted since the issue was last discussed in Parliament in 2007. He noted that many, especially younger Singaporeans, believe that consensual sex between men should not be deemed a criminal act and should not be criminalised. "One of the things that upsets the LGBT+ community is that many feel that their experience of being hurt or rejected by their families, friends, schools, companies - is not recognised, indeed often denied," he elaborated. At the same time, there was also a large majority who wanted to preserve the overall tone of society. This segment wanted to uphold the traditional view of marriage as being between a man and a woman, and believed that children should be raised within such a family structure. "Their concern is not Section 377A per se, but the broader issues of marriage and family. Many amongst this group also support decriminalising homosexual sex between men," he explained. "Both these viewpoints are valid and important," the minister stated.
He also noted that the Courts had said the current legal position reflected society's norms, values and attitudes. In successive judgments over the years, the Courts had consistently taken the position that these were highly contentious social issues that should be decided by Parliament, and that the heterosexual, stable family remained the social norm. On the latest judgment by the apex court, Shanmugam said the Court's opinions aligned with the Government's approach in dealing with Section 377A, as well as the approach the Government intended to take as it considered the changes in Singapore's social landscape since 2007. For instance, the Court had noted that the compromise which Singapore had struck, in respect of Section 377A, was unique, and described the approach as one that preserved the legislative status quo, while accommodating the concerns of those who were directly affected by the legislation. "The Court recognised that the Government did this in order to avoid driving a deeper wedge within our society," he said. "It also noted that Singapore's approach seeks to keep what to do with Section 377A within the democratic space."
He added that the Court had also highlighted the importance of creating space for peaceful co-existence among the various groups, especially since the balance between the various interests around Section 377A has grown more delicate. Socially charged issues, such as whether or not to repeal Section 377A, called for continued discussion and open-ended resolution within the political domain, where consensus could be forged, rather than for win-lose outcomes in court. "In this way, we can accommodate divergent interests, avoid polarisation and facilitate incremental change," he concluded.
Reaction to K Shanmugam's speech
Religious communities stood by the reaffirmation of traditional family norms after K Shanmugam statements while advocates for the LGBT community hoped that the shifting attitudes towards the contentious matter was a step towards repealing the law,,. However, both sides largely agreed with Shanmugam on the need to engage key stakeholders in considering how to best move forward with the issue.
The National Council of Churches of Singapore (NCCS), which represented about 200 churches, noted the position of the Government and the Attorney-General's Chambers, which was that Section 377A be retained but not proactively enforced. It said in a statement on Friday, 4 March 2022 that this "successfully achieves this delicate balance between the different (and opposing) interests of various groups. This 'unique compromise', which Singapore has struck, has worked so far in preventing a deeper wedge from being driven within our society," the council added. Agreeing, the Islamic Religious Council of Singapore (MUIS) said that it welcomed the Government’s commitment to "maintain family norms and values in Singapore". "For Muslims, we are guided by the teachings and moral values of our faith, including on matters relating to sexuality, marriage, and the constitution of the family as an important social unit... At the same time, we must continue to treat everyone with respect and compassion." The Sikh Advisory Board said that it agreed with "the balanced approach that the court has taken on the appeal against Section 377A", adding, "We believe this outcome considers and balances the interests of all segments of society and preserves social harmony and cohesion (and) encourage all interested parties to continue a constructive dialogue within society on this matter." The Roman Catholic Archdiocese of Singapore, which oversaw 32 Catholic churches, said it was "fortunate that we have a Government that places stability and harmony in our multi-religious and multi-racial society above any sectarian interests", adding it did not condone the marginalisation of "those who do not subscribe to (the Church’s) values, including those with LGBT+ orientation". However, it asked that "others who do not subscribe to our values also respect our right to exercise our religious beliefs without fear or favour". The Alliance of Pentecostal and Charismatic Churches in Singapore (APCCS), which represented more than 80 churches, affirmed the need to carefully balance different views in society while "avoiding the destabilisation of social norms". It said: "APCCS expects that any change in Section 377A would lead to adjustments in national policies relating to marriage, family, children, education, media, housing and more. As the family unit is undermined or rewritten, the gradual erosion of societal strength and resilience follows... Any moves away from the status quo would result in a suite of knock-on effects."
Some supporters of the LBGT+ community were disappointed by the court’s ruling to dismiss challenges to Section 377A, but were encouraged by Shanmugam's acknowledgement that social attitudes towards homosexuality had changed since 2007. Leow Yangfa, executive director of LGBT+ non-profit organisation Oogachaga, said he "agreed wholeheartedly" that there had been a shift in attitudes towards the community since 15 years ago. He pointed to studies by the Institute of Policy Studies and a survey done by TODAY as examples indicating this shift, where people were becoming more open to LGBT+ folk. Pauline Ong, executive pastor at the Free Community Church, also agreed with the shift and was "hopeful that one day our laws will reflect the just, inclusive and equal society that we strive to be." Pink Dot SG spokesman Clement Tan said that the group was "glad that Mr. Shanmugam openly acknowledged the rejection and hurt faced by the LGBTQ+ community in Parliament". Agreeing, Leow said that Oogachaga was "especially grateful" to the minister for acknowledging that "many members of Singapore's LGBT+ community have felt that our experiences of rejection have been ignored", adding, "This display of empathy has been noted, and goes a small way towards healing some of the hurts we feel." Some other pro-LGBT+ groups said that they were "cautiously optimistic" by what Shanmugam had said. They believed that many LGBT+ individuals still faced challenges due to the "trickle-down" effects of Section 377A. Benjamin Xue, co-founder of LGBT+ youth support group Young Out Here, said that despite being "surprised" that Shanmugam had taken some time to address the issue, the law still stood after the court ruling, adding, "Its trickle-down effects affects (LGBT+ individuals') self-worth and the way they see themselves, in schools, at home, among their friends and in their future in Singapore. I do hope what Mr Shanmugam said yesterday marks a shift in the way LGBTQ+ (people) are treated in Singapore. We understand acceptance takes time, but changes towards acceptance and inclusion needs to start now (and) repealing 377A is that start." Jean Chong, co-founder of LGBT+ rights group Sayoni, said that she was not clear about what Minister Shanmugam meant by "incremental change" and hoped that decisions could be made sooner, adding,. "The Government should immediately rectify the many policies that are discriminatory, enact laws to protect LGBTQ+ persons and repeal 377A."
Although the groups on both sides of the issue diverged in their thinking and responses to Shanmugam's comments, they both agreed that more consultation with various stakeholders would be welcome. MUIS said: "We support the Government’s approach for continued discussion and will continue to provide our feedback to the Government, guided by on our norms and values." NCCS likewise stated that it would "continue to work closely with the Government as it considers the ‘best way forward’ on Section 377A". Clement Tan from Pink Dot SG said that the group was "encouraged by plans to review the situation in consultation with key stakeholders, especially where it involves updating legislation and policies". Pauline Ong from the Free Community Church said: "We hope that those who hold different perspectives would commit to continual dialogue and listening to one another, and come to know one another as fellow human beings, and through this, we would find a way forward together."
Masagos: Government to uphold "traditional family" policies without creating “sudden shifts and deep division”
On Thursday, 10 March 2022, while speaking during the debate on the spending plans by the Ministry for Social and Family Development, Minister Masagos Zulkifli, in response to a query MP Seah Kian Peng from Marine Parade GRC, who had asked for his ministry's stance on Section 377A, stressed that the Government would work to ensure that LGBT+ persons were protected from violence, harassment, and abuse through laws such as the Protection from Harassment Act (POHA),,.
He said: “We also urge the public to step forward to report violence and abuse where LGBT cases may be involved.” He also alluded to Home Affairs and Law Minister K Shanmugam's comments the previous Thursday that policies needed to evolve to keep abreast of the gradual shift in society's attitudes towards homosexuality. He said: "The court has acknowledged that the Government's current approach on this matter avoids driving an even deeper wedge in our society." While Singapore society could be described as "largely traditional", there was now a wider range of views and attitudes on families and marriage. For example, more than 30 years ago, one in ten marriages were from inter-ethnic groups. Currently, it was almost one in five, with some MPs among such couples. He also cited a 2019 Institute of Policy Studies survey where 11.4% of respondents felt there was nothing wrong with sexual relations between two same-sex adults. This was double the figure in a 2013 survey, which was about 5.6%. “We are therefore not surprised that we are seeing an increasing acceptance of LGBT persons socially among Singaporeans,” he added. "But while societal attitudes are gradually shifting, the majority value and wish to preserve the traditional family: that of a man and a woman marrying and raising a child or children in a stable family unit," stressed Masagos, who was also Minister-in-charge of Muslim Affairs. He said that the traditional family structure continued to be the bedrock of society as it “contributes to social stability and allows children to strive. We will uphold the traditional family in our government policies and laws reflecting our societal norms and values. This includes marriage, parenthood, adoption, fertility treatment, housing and inheritance, among others. Concerns surrounding Section 377A and its implications still have the potential to polarise society. It is an issue that involves deeply held beliefs and values, and divergent societal views and goals. We will continue to adopt the approach of civil dialogue, working with all, involving all stakeholders, as we chart our own unique Singapore way forward without creating sudden shifts and deep division in our society."
K Shanmugam: Ministers should refrain from expressing personal views on 377A
On Friday, 11 March 2022, in response to a question at the State of the Family 2022 event organised by conservative Christian organisation Focus on the Family Singapore on whether there would be changes to sexuality education if Section 377A were repealed, K Shanmugam said that the Government would work through the potential impact and consequences,,,. Regarding his recent parliamentary statement, he explained that it was carefully considered and delivered on behalf of the Government. All individual ministers were bound by the Cabinet's decisions on Government policy and they should refrain from expressing their own personal views on the matter, he added at the event organised by Focus on the Family Singapore, a conservative Christian organisation. He noted that one of the questions posed at the event showed that the concern of many was not Section 377A per se, but its consequences if the law were repealed, adding that it was something the Government was aware of and must deal with. He stressed that there were two valid and important viewpoints that the Government would consider in dealing with this matter - one viewpoint was that the vast majority of Singaporeans believed that a heterosexual marriage between a man and a woman remained the fundamental building block of society, and the other was that many Singaporeans, including those who held the first viewpoint, believed that private consensual sex between men should not be criminalised and wanted to see Section 377A repealed.
Roy Tan withdraws application for mandatory order to compel Cabinet to move Bill to repeal 377A
HC/OS 1224/2020 (“OS 1224”)
We refer to the above-captioned matter, and the Notice of Change of Solicitor filed on 1 March 2022, stating your appointment as the new solicitor for Dr Tan Seng Kee in OS 1224.
2. As your client would be aware, the Honourable Court of Appeal released its decision in Tan Seng Kee v Attorney-General and other appeals  SGCA 16 (“Decision”) on 28 February 2022. In the Decision at , the Honourable Court of Appeal addressed, amongst others, all of the issues raised by your client in OS 1224 (viz. s 424 of the Criminal Procedure Code, ss 119 and 176 of the Penal Code, and the right of the police to investigate), save that at  below (viz. the mandatory order at prayer 1 of OS 1224):
“It naturally flows from our holding that prosecutions under provisions such as ss 119 and 176 of the PC should not be instituted where the underlying offence is one under s 377A. In the same vein, offences under s 424 of the CPC should not be prosecuted where the “arrestable offence” (as statutorily defined) is one under s 377A. However, nothing in our holding affects the right of the police to investigate all conduct, including any conduct falling within the Subset and/or amounting to an offence under s 377A (see  above). Nor does our holding constrain the PP’s right to prosecute conduct falling outside the Subset where such conduct violates any other law, or impact the duties applicable to others arising, for instance, from their awareness of or participation in such conduct, whether actual or intended.”
3. Given the above, it is clear that your client’s concerns in OS 1224 have been addressed in the Decision, and OS 1224 is now moot and/or unsustainable in view of the Honourable Court of Appeal’s holdings.
4. As for the sole remaining issue of your client’s application for leave to apply for “a Mandatory Order compelling the members of the Cabinet to move a Bill in Parliament to repeal Section 377A of the Penal Code” (prayer 1 of OS 1224), while this was not specifically addressed in the Decision, this is plainly and obviously unsustainable in law. As the Honourable Court of Appeal recognised, “the doctrine of the separation of powers calls for each branch to respect the institutional space and legitimate prerogatives of the others” (the Decision at ). It would plainly be contrary to the doctrine of separation of powers, for the Judiciary to mandate members of the Cabinet to move a Bill in Parliament.
5. In the circumstances, we write to invite your client to withdraw OS 1224. We will not seek costs from your client if OS 1224 is withdrawn at this stage. If OS 1224 is not withdrawn notwithstanding the clear holdings in the Decision, we intend to seek full costs from your client if he is unsuccessful in OS 1224.
6 Please let us have your response on  above by 23 March 2022.
Hui Choon Kuen Senior State Counsel"
As such, upon Ravi's advice, Tan withdrew his Originating Summons given what the AGC had laid out in the letter.
Webinar on legal implications of decision in Tan Seng Kee v AG
On Friday, 13 May 2022, a live webinar entitled, "The Legal Implications of the Decision in Tan Seng Kee v Attorney-General  SGCA 16" was conducted from 2:30pm to 4:30pm by the Law Society of Singapore. During the event, speakers and panellists closely examined the decision itself, particularly the discussion on the role of the Court, the issue of political compromise and uncertainties, the doctrine of substantive legitimate expectation and finally, whether Section 377A was at odds with Articles 9, 12 and 14 of the Constitution.
- Don Ho Jia Hao, "The Endgame of Section 377A Litigation: Case note on Tan Seng Kee v Attorney-General  SGCA 16", SMU Lexicon, May 2022,.
- WEBINAR: The Legal Implications of the Decision in Tan Seng Kee v Attorney-General  SGCA 16:,,.
This article was written by Roy Tan.