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RoyTanPinkDot002

Roy Tan standing on a ladder and waving the Pink Dot flag during the climactic countdown of the inaugural Pink Dot event at Hong Lim Park on Saturday, 16 May 2009.

Roy Tan (born 1958) is a healthcare professional passionately interested in documenting Singapore's LGBT history.

He was one of the most active contributors of local LGBT-related news articles to the Singapore gay news list (SiGNeL)[2] since the latter's formation and continued his archival work on the Singapore LGBT media archive (SLEMA)[3] since 2015.

Tan has also recorded and uploaded the most comprehensive collection of local LGBT videos to his two YouTube channels - Homosexuality in Singapore[4] and Transgender people in Singapore[5].

In November 2008, Tan registered to hold Singapore's first LGBT pride parade at Speakers' Corner, Hong Lim Park. This morphed the following year into Pink Dot SG, an event which supported the "freedom to love" and which later spread worldwide. On 19 February 2010, Tan marched with fellow Singaporean Tien Kim Chuan in Singapore's first gay Chingay contingent.

In 2019, Tan, represented by human rights lawyer M Ravi, launched a fresh constitutional challenge against Section 377A of the Penal Code which criminalises sex between men. Their novel arguments adduced resulted a landmark Court of Appeal ruling in 2022 that the statute was "unenforceable in its entirety" and its repeal by Parliament several months later.

First Singapore LGBT articles on Wikipedia[]

In 2005, Tan realised the potential of the then nascent and relatively unknown Wikipedia in informing local mainstream society and the world at large about Singapore's LGBT culture and history.

The advantage of Wikipedia was that knowledgeable contributors could consolidate widely scattered pockets of information into a one-stop reference site. This was unlike any Singaporean LGBT website that had existed before like Yawning Bread, Fridae or Trevvy in which only authorised writers could pen articles.

Tan created the first Singapore LGBT-related Wikipedia article entitled LGBT culture in Singapore[6],[7] under the username of Groyn88 on 20 March 2005. He subsequently started all the other articles on Singaporean LGBT culture there in the ensuing months.

Howevever, his hope that other contributors would chip in and expand the articles he pioneered was not realised and he ended up doing most of the updating himself. Moreover, many Singaporean editors of Wikipedia were homophobic and deleted entire articles or huge chunks of extant articles, claiming that they were not significant enough for a prestigious reference work such as Wikipedia.

In dismay, Tan looked for an alternative site to transfer the articles to. He was overjoyed when he found SgWiki, a site hosted on a local server and which used the same wiki markup language as Wikipedia. He then ported all the articles in September 2005 to SgWiki[8], which had a more liberal and LGBT-friendly policy. Even then, some articles deemed sensitive because they rebutted religious condemnation of homosexuality were also deleted by SgWiki's administrators.

Another drawback was that articles on SgWiki did not rank as high up on Google and other search engines as the much more globally popular Wikipedia.

Tan also replicated all the Singapore LGBT-related articles on user-constructed knowledge sites such as the now-defunct Knol (an initiative of Google) and on other wikis such as the PBwiki[9] and Wikidot[10](now also defunct). These websites enabled registered users to have complete editorial control over their articles and not be subjected to the whims of appointed editors. However, these wikis used different markup languages from Wikipedia, therefore making porting articles much more difficult than just copying and pasting. The articles first had to be translated to the different wiki language used by the site.

In 2012, Tan searched for and managed to find websites such as the still extant Shoutwiki[11], as well as others like Wikia[12] which used the same wiki markup language as Wikipedia. He then transplanted all the SgWiki articles to these sites - easily accomplished by direct copying and pasting with no translation required.

Singapore LGBT video channels on YouTube[]

LGBTV

Tan has also recorded and amassed the most comprehensive collection of local LGBT videos on YouTube, divided into 2 channels because they dealt with separate sets of issues - "Homosexuality in Singapore"[13] and "Transgender people in Singapore"[14].

First outdoor LGBT speech in Singapore[]


Tan delivered Singapore's first outdoor LGBT-themed speech to an overwhelmingly straight audience at Hong Lim Park at 5:15pm on Saturday, 13 December 2008. He spoke on the discrimination which gay Singaporeans faced at work. The event was organised by MARUAH and entitled, "Human Rights and Dignity of Workers". It marked the 60th anniversary of the Universal Declaration of Human Rights, which promoted the values of justice, fairness, equality and non-discrimination.

Registration of first LGBT pride parade and Pink Dot[]

Main article: Pink Dot SG
See also: Sequence of events leading to Pink Dot
FirstGayProtestAtSpeakersCorner080925

Straits Times article dated 25 September 2008.

Tan registered to hold Singapore's first LGBT pride parade at Speakers' Corner on 15 November 2008[15],[16][17],[18],[19],[20] after the government legalised protests there. This later morphed into Pink Dot SG[21][22],[23],[24][25],[26], an event which supported the "freedom to love" and which later spread worldwide[27].



First gay Chingay contingent[]

Main article: Singapore's first gay Chingay contingent

On Friday, 19 February 2020, together with fellow citizen Tien Kim Chuan, Tan marched in Singapore's first and only gay Chingay contingent when the public were allowed to form their own dancing groups that year[28],[29].

RoyTanChingay002b



In mid-2023, Tan's photo, shot with Tien Kim Chuan just before their Chingay march on 19 February 2023, was accepted for international Flag in the Map exhibition, a growing collection of photographs and stories that reaffirms the universal power of the rainbow flag to inspire LGBTQ+ people, especially in countries where their everyday existence is threatened. A collaboration between the Gilbert Baker Foundation and ReportOUT, Flag in the Map was launched in October 2020. The two organisations put out an open call across the world, asking for submissions of photos of people flying their pride flags. The resulting images came in from scores of countries and were curated for an emotionally powerful book[30]. Tan's photo was one of the five from around the world selected to be featured on the landing page of the exhibition:[31].

FlagInTheMapRoyTan


Internet TV interview on homosexuality[]

On 31 August 2012, Singapore Internet TV station in988 interviewed Tan on the subject of homosexuality. It was the longest interview conducted with a medically qualified doctor in Singapore on the topic uploaded the Internet to date. The following clip is an excerpt of it[32].

Well known showbusiness celebrities Abigail Chay and Roger Poon were in the studio.


Section 377A constitutional challenge[]

Main article: Challenge to the constitutionality of Section 377A

On Friday, 20 September 2019, Tan, then 61 years of age and retired as a GP, filed a new constitutional challenge in the High Court against Section 377A of the Penal Code which criminalises sex between men. He was represented by lawyer M Ravi from Carson Law Chambers. The Attorney-General (AG) was listed as the defendant.

RoyTan&MRavi001

Roy Tan and Singapore's pioneering human rights lawyer, M Ravi, after a Fridae interview by writer Ng Yi-Sheng in October 2011 prior to the landmark ruling by Justices VK Rajah, Andrew Phang and Judith Prakash on Tan Eng Hong's Section 377A constitutional challenge[1] which paved the way and made all subsequent challenges possible

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."

A pre-trial conference was set for 8 October 2019. The case 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.

Tan's application joined two other constitutional challenges against Section 377A then before the courts - one was filed in November 2018 by Bryan Choong, the former executive director of Oogachaga, a non-profit organisation working with the LGBT community and another was filed in September 2018 by disc jockey Johnson Ong Ming, who went by the stage name DJ Big Kid, shortly after India's Supreme Court struck down its analgous law, Section 377 of the Indian Penal Code.

Tan's application was widely reported in the local[33],[34],[35],[36],[37] as well as international media[38],[39],[40],[41],[42],[43],[44].

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
RoyTan011

On Tuesday, 1 December 2020, Tan, filed an application in the High Court seeking a declaration that Section 377A of the Penal Code 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[45]. 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[]

RoyTanMRaviGabrielRafferty

Roy Tan, his lawyer M Ravi and legal assistant Gabriel Rafferty at the entrance to the Supreme Court at 9am on 25 January 2021.

At 10am on Monday, 25 January 2021, appellants Roy Tan, Johnson Ong and Bryan Choong 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.

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.”

Court of Appeal dismisses challenges but declares 377A "unenforceable"[]

See also: Archive of Court of Appeal judgment in Tan Seng Kee v AG, 28 February 2022

On Monday, 28 February 2022, the Court of Appeal released its judgment in Tan Seng Kee v AG firstly at 10am to the 3 appellants' lawyers and later at noon to the media[46],[47],[48]. 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[49],[50]:


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 included 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.

Roy Tan withdraws application for mandatory order to compel Cabinet to move Bill to repeal 377A[]

On 9 March 2022, Roy Tan's lawyer M Ravi who was then knowledge manager of law firm L F Violet Netto, received the following letter from the AGC[51]:

AGCLetter220309

Archive of the AGC's letter to Roy Tan's lawyer, dated 9 March 2022.

"Dear Sirs,

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 [2022] SGCA 16 (“Decision”) on 28 February 2022. In the Decision at [150], 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 [4] 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 [113] 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 [15]). 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 [5] above by 23 March 2022.

Yours faithfully,

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 [2022] 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.

WebinarTanSengKeevAG1 WebinarTanSengKeevAG2 WebinarTanSengKeevAG3 WebinarTanSengKeevAG4

Analysis of invocation of doctrine of substantive legitimate expectation[]

The crux of the Court of Appeal's ruling that Section 377A was unenforceable in its entirety rested on a novel invocation of the common law doctrine of substantive legitimate expectation. Indeed, Tan Seng Kee marked the debut of the doctrine in the Apex Court, albeit with a carefully-circumscribed scope of application[52],[53],[54],[55].

In 2018, Attorney-General Lucien Wong clarified that the government's policy of non-proactive enforcement of section 377A did not amount to an interference with his prosecutorial discretion. Rather, the AG had exercised prosecutorial discretion in deciding that the prosecution of consenting adult men in private under section 377A would not be in the public interest.

The Court of Appeal in Tan Seng Kee found that these contextual points were legally significant. Indeed, the court held that the AG's statements constituted “representations that section 377A will generally not be enforced in cases of sexual conduct between consenting adult men in private”, and thought that these statements ought to be imbued with legal effect through a “limited recognition of the doctrine of substantive legitimate expectations”. The legal effect of the substantive legitimate expectation created by the AG's statements was that section 377A was rendered unenforceable in its entirety. This legitimate expectation of non-prosecution would only be obviated if the Attorney-General provided “in clear and unambiguous terms, reasonable notice of his intention to resile” from the representations made in 2018. The Court of Appeal also clarified that this recognition of the substantive legitimate expectations doctrine was wholly exceptional and did not amount to a broader acceptance of the doctrine in Singapore law.

The Court of Appeal's holding that the Attorney-General's statements had given rise to this legitimate expectation of non-prosecution was legally decisive. Indeed, the court thought that this meant that none of the appellants faced “any real and credible threat of prosecution under this provision”, which in turn meant therefore that the appellants did not have locus standi to mount constitutional challenges against section 377A under the law of standing for judicial review in Singapore. Accordingly, the constitutional challenges failed.

Tan Seng Kee was a creative effort to strike a careful legal compromise on a thorny issue. Central to this compromise was the Court of Appeal's recognition of the substantive legitimate expectations doctrine, albeit in a limited sense. Such recognition was somewhat unexpected, given that the same court in SGB Starkstrom Pte Ltd v Commissioner for Labour [2016] 3 SLR 598 had expressed considerable reluctance to accept the doctrine. Tan Seng Kee therefore represented an important milestone in the development of Singapore administrative law.

However, the Court of Appeal's application of the substantive legitimate expectations doctrine in Tan Seng Kee presented several points of departure from an orthodox understanding of the doctrine.

  • First, it is quite questionable whether the Attorney-General's statements in 2018 amounted to a “clear, unambiguous and unqualified” representation at all, a basic prerequisite for the legitimate expectation doctrine. As described earlier, the AG's intent in making those statements was to clarify that his prosecutorial discretion was not fettered by the government's policy of non-proactive enforcement of section 377A. Reading his 2018 statements closely with this context in mind, it becomes quite clear that the AG was seeking to affirm that he retained full prosecutorial discretion to assess whether prosecutions under section 377A would be in the public interest, and that decisions not to prosecute under section 377A thus far had been made precisely on the basis that such prosecutions would not have been in the public interest pursuant to his prosecutorial discretion.
  • Second, even if the Attorney-General's statements could have been found to give rise to a legitimate expectation, the scope accorded to the purported legitimate expectation in Tan Seng Kee represents another point of possible departure from an orthodox application of the substantive legitimate expectations doctrine. Indeed, it will be recalled that the Court of Appeal took the view that section 377A was unenforceable in its entirety, despite the fact that the AG's statement was directed only at non-prosecution against consenting adults in private places. It is rather at odds with substantive legitimate expectations orthodoxy for a representation to give rise to a legitimate expectation with legal effect extending beyond the representation itself.
  • Third, on the basis of the Court of Appeal's reasoning in Tan Seng Kee, it is difficult to rationalise what the legal effect of the purported legitimate expectation is. If the effect of this legitimate expectation is to allow the Attorney-General to change or depart from a policy of non-prosecution if sufficient justifications are proffered for such change or departure (as an orthodox application of the doctrine would provide for), one might be concerned about how such a legal effect would cohere with the Court of Appeal's view that the protection from prosecution accorded by the legitimate expectation was sufficiently concrete to obviate any standing the applicants had to mount a constitutional challenge to section 377A. On the other hand, if the legal effect of the purported legitimate expectation is to render any change to or departure from the non-prosecution policy impermissible, save in the situation where the Attorney-General provides reasonable notice of an intention to resile from the representation (which would mean that there was no legitimate expectation in the first place), this would amount to a substantial departure from legitimate expectations orthodoxy.

In sum, while Tan Seng Kee was a creative effort to navigate a difficult issue, the Court of Appeal's invocation of the substantive legitimate expectations doctrine appears to have departed in various respects from an orthodox understanding of the doctrine. Should the Singapore courts be minded in future to revisit the acceptance of the doctrine more broadly into Singapore administrative law, these doctrinal departures ought first to be carefully addressed.

Panel discussion on Tan Seng Kee v AG and Section 377A[]

On Monday, 26 September 2022, a panel discussion with Home Affairs and Law Minister K Shanmugam on the implications of Tan Seng Kee v AG was co-hosted by the Singapore Academy of Law and the Law Society of Singapore. The forum was moderated by Professor Lee Pey Woan, dean of Singapore Management University's Yong Pung How School of Law, [56],[57],[58],[59],[60]. The following video is a combination of the reports filed by The Straits Times and Asia One[61]:


Full recording by Channel NewsAsia[62],[63]:


Law academics and senior members of the legal fraternity said repealing Section 377A was the right move as there was a real risk of the law being struck down by the courts in a future legal challenge, and doing away with it through the democratic process in Parliament would be less messy. Also, the sheer existence of the law, even if it was not used, would continue to cause a societal rift between those who opposed the law and those who supported it.

In his opening address[64], Minister Shanmugam said that the apex court's decision in February 2022 suggested that Section 377A might be unconstitutional because the statute could violate Article 12 of the Constitution if a particular approach were taken to evaluate it. The court had also held that the three men who brought the case did not have locus standi, or standing, to challenge the law, since there was no real risk of prosecution under Section 377A. However, he noted that the court had limited itself to considering the lack of standing with regard to prosecution and not investigations by the police. This meant it was possible for the court to rule differently on the issue of standing in future, based on a different set of facts. Shanmugam also drew attention to the Court of Appeal's comments that politics seemed the more "obvious choice" than litigation for debating and resolving highly contentious societal issues. "Courts have said this is within the province of Parliament. That does not mean the courts are saying that they will not act. What they are saying is: 'We leave it to Parliament to go and do what is right'," he said. "In Singapore, things have worked because each branch does what is right and what is their duty. If there is a law in the books which is unconstitutional, what is the duty of Parliament? What's the duty of the Executive? To deal with it or to put on the helmet, go into the bunker and pretend that it doesn't exist because it's politically too divisive? That's not the way things work in Singapore. As such, one must do the right thing and not "duck". You don't say as other parliaments have said: 'Well, we leave it to the courts, hopefully they will deal with it.' If Parliament doesn't do what it has to do, then the courts will do what they don't want to do."

Agreeing with these points, Law Society president Adrian Tan and Singapore University of Social Sciences law school dean Leslie Chew said the judgment had made it quite obvious that there was a risk the law could be found unconstitutional in future. Tan pointed out that the Court of Appeal did raise "red flags", elaborating: "They were saying: 'Look, this time the legal challenge is not going to succeed. But next time, it probably will." He added that the broader question was how Singaporeans would prefer to effect change in society. When laws were changed through a litigious court process, it was messy and brutal with interconnected laws left hanging, but when they were changed through the democratic process in Parliament, related laws could be dealt with at the same time. Prof. Chew said the court was also not the best forum to decide on the extra-legal issues thrown up by the constitutionality of Section 377A, adding: "In Singapore, we... have not politicised many of our issues, and we should not because it really, properly belongs to the people, rather than the court, where at the end of the day, it's adversarial." He added that the outcome of cases was never certain, and things evolved, pointing out that the apex court was also not bound by its own decisions. "In our system ... it is your constitutional right to challenge. And if you look at the history of issues that have been thrown up by Section 377A, it dates back to somewhere around 2013, It has been a whole decade of every now and then, (there is) a challenge. So the risk is real," he emphasised.

National University of Singapore associate professor of law Jaclyn Neo said the Court of Appeal had significantly changed the test that it used to assess whether differential treatment of certain groups would violate the right to equal protection under the Constitution, adding that this had put Section 377A on more shaky ground. University of Hong Kong professor of law Michael Hor said that although the court had declared that the law could be used, it was only "half dead" and there were still other "zombie bits" that were "not quite dead yet". For instance, there may be other secondary offences such as abetment that may be predicated on the intention to commit offences under Section 377A, and it was not clear if these were bound by the current legal position. Prof. Hor also said "the societal and psychological damage" caused by the sheer existence of the law could not be ignored, and that it would continue to breed ill will against gay men and cause them to feel excluded and inferior.

During the panel discussion, Minister Shanmugam also touched on the decision to amend the Constitution to protect the definition of marriage, and emphasised that this was not a "compromise". "We're not in the business of compromises. We sat down and we looked at the Tan Seng Kee judgment and we asked ourselves: 'Where is our society?' And we also asked ourselves, 'What is fundamental in this society?'," he explained. "We said that the definition of marriage that exists today in the Women's Charter is something this Government is deeply committed to. And we believe that while many people will either not mind or will welcome the repeal of 377A, we don't think Singaporeans are ready for a major sea-change in the tonality of our society and the way our society is the day after."

In his remarks, Minister Shanmugam said the Government had four options to deal with Section 377A:

  • do nothing
  • amend the Constitution to prevent court challenges to Section 377A
  • leave Section 377A alone and amend the Constitution to prevent court challenges to the definition of marriage, or
  • repeal Section 377A and amend the Constitution to prevent court challenges to definition of marriage.

He said the Government had chosen to repeal the law and protect the definition of marriage, as it was the principled and right thing to do. He added that if Section 377A were struck down, the definition of marriage would likely be challenged, and the Government had assessed that society was not ready for such a sea change overnight.

Adrian Tan added that changing laws through the courts could be "messy", as most laws were interconnected. He explained: "There's basically two ways that society can change laws. There's a messy legalistic process, which is asking the court to review a law and there is a neat democratic process which is through the Legislature." He noted that litigation was an "appeal to law" rather than a consultative process, adding: "In a sense to me, the Tan Seng Kee case also puts a bigger question to Singaporeans: How do we want to effect change in society? Do we want to do it through our democratic process, or do we want to go to court and challenge laws that we don't like? When you change something through the court, it's quite brutal. The court is not probably going to say, when I strike down this law, I'm also going to look at 10 other laws that may refer to it. The court is just going to strike down that law, and then leave everybody else hanging. So my personal opinion is that that's a very messy way to effect change in society."

Prof. Hor asked why Section 377A and the definition of marriage were being treated differently, saying: "Section 377A might be struck down by the courts, so we repeal it first. Marriage definition might also be struck down by the courts, but we protect it... Why the different treatment?" He also suggested that "we should initiate public discussion on same-sex marriage", given that it was a "done deal" that the Government would repeal Section 377A. Elaborating on his point, he brought up what he said was a common argument against the recognition of same-sex marriage — that it would "somehow destroy the whole idea of traditional marriage", adding: "I just wanted to say that I don't buy that, because we do have different conceptions of marriage in existence already." Prof. Hor cited Muslim polygamous marriages as examples, questioning: "Why does that not destroy the monogamy of modern Muslim marriages? It hasn't yet. Both coincide, both accept, both tolerate, both include each other."

A relevant slide projected onto the background wall read:

The Marriage "Pasar Malam"

  • 377A will be repealed.
    • Because it is right vs because otherwise the court might strike it down?
  • Unfortunate coupling with the proposed "marriage bargain"
  • A constitutional ouster clause to prevent courts from reviewing the constitutionality of a marriage definition which excludes same sex marriage
    • An ouster clause needed only if there is a strong enough case that the exclusion of same sex partnerships cannot be adequately/satisfactorily/legally/constitutionally justified
    • What possible reason could there be to protect such a "suspect" provision? Political need to "compromise" vs the role of the law/ courts as a solution to "democratic dysfunction"
  • The right thing to do:
    • leave the Constitution alone.
    • Initiate discussion on same sex marriage - dispassionately assess arguments for and against.
    • The primary reason against - to preserve traditional marriage/family. In what way does same sex marriage/families undermine heterosexual marriage/families? We already have radically different conceptions of marriage - Muslim polygamy - why does that not destry or undermine non-Muslim monogamy?

In response to Prof. Hor's questions, Minister Shanmugam replied: "If Section 377A is a matter for Parliament, marriage is even more a matter for Parliament. If anybody wants to change the definition of marriage, if that's what Singaporeans want, somebody has got to organise themselves, put it on your manifesto, go into the general elections arguing that this is what you stand for, win the elections, change the law. That is how a democracy ought to work." He reiterated that the definition of marriage that exists today in the Women's Charter was "something that the government is deeply committed to", adding: "We believe that while many people would either not mind or would welcome the repeal of S377A, we don't think Singaporeans are ready for a major sea change in the tonality of our society, and the way our society is the day after." Shanmugam also pointed out Prof. Hor's arguments were one fundamental reason why many people who actually had a "live and let live approach" were opposed to the repeal of Section 377A because of the "further arguments" that may arise, such as the issue of the definition of marriage and adoption. He continued: "These are political issues, and this is why these matters ought to be dealt with in Parliament. This government is committed to this definition of marriage. We have given, in very clear terms, where we stand. The next Prime Minister has indicated where he stands, and his Cabinet stands. That's what we can say. And it will be debated in Parliament." Ending off his point, Shanmugam re-emphasised that "marriage is fundamental to our country". We believe that part of the reason Singapore is where it is, is because of the way our societal values have evolved, because of the importance we’ve placed on marriage, and we want to keep it."

At the end of the session, Singapore Management University professor of law Lee Pey Woan, who was the moderator, asked the audience of about 90 lawyers, law academics and students if anyone disagreed with the view that there was a real risk Section 377A could be struck down for being unconstitutional. The opinion was unanimous as no hand was raised.

Historyogi podcast interview[]

HistoryogiRoyTan

In June 2023, Tan was interviewed by Historyogi in a podcast where he provided a whirlwind tour of Singapore's LGBT history before the year 2000 and discussed why it was important to know the subject:[65]

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