Tan Seng Kee v AG

From left to right: Roy Tan Seng Kee, Johnson Ong and Bryan Choong Chee Hong.

Tan Seng Kee v AG was the case in which three appellants, Roy Tan Seng Kee, Johnson Ong and Bryan Choong Chee Hong jointly appealed against a High Court ruling on 30 March 2020 that dismissed their challenge to the constitutionality of Section 377A of the Penal Code which criminalised sex between men. Tan was named as the lead appellant even though he was last to file his challenge in the High Court[1], probably in honour of his lawyer, M Ravi, who instituted the first constitutional challenge on behalf of his client Tan Eng Hong in 2010 which secured a landmark Court of Appeal ruling that made all subsequent challenges possible[2].

Court of Appeal hearing

At 10am on Monday, 25 January 2021, the appellants 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.

Judges of Appeal (from left to right): Chief Justices Sundaresh Menon, Andrew Phang, Judith Prakash, Tay Yong Kwang and Steven Chong.

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[3]. 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[4]. “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.”

Court of Appeal dismisses challenges but declares 377A "unenforceable in its entirety"

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[5],[6],[7],[8],[9],[10],[11],[12],[13],[14],[15]. 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[16],[17],[18]:

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[19].

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[20]. 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[21],[22],[23]. 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." [24],[25],[26]

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's statements while advocates for the LGBT community hoped that the shifting attitudes towards the contentious matter were a step towards repealing the law[27],[28],[29],[30]. However, both sides largely agreed with Shanmugam on the need to engage key stakeholders in considering how to best move forward with the issue.

Religious organisations

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 could not be 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. 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 multiracial 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."

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." On 7 March 2022, Singapore's top Islamic leader, Mufti Nazirudin Mohd Nasir said while there was a recognition that the LGBT issue was a very complex and complicated matter, there was also a need to work harder and move faster towards some resolution[31]. This was because people continued to expect religious leaders in Singapore to provide guidance on the matter. He said Islam's position was clear that homosexuality was not permissible. But he added that the LGBTQ community as a social issue was "complex and multi-faceted". "On the one hand, our theological position on this is clear in terms of the homosexual acts itself - they are not permitted in Islam. On the other hand, we also have the other aspect of theology of living with, and living as, such individuals in a community and society that is diverse, inclusive and open," explained Dr Nazirudin. "We first need to develop these aspects of our theology carefully. Another big area of debate and discussion is, as a diverse society, what are the norms that should shape it? And what are the acceptable and unacceptable practices in such a society? We need more conversations on this." Some of these conversations were underway, he added. He was currently engaging the asatizah, or Islamic religious teachers, to understand their views on the issue, given how they were in touch with the ground. Through these discussions, he had observed that there were many different perspectives. Dr Nazirudin said Muslims here had to find a way to have more conversations on issues such as 377A, and it should involve listening to a variety of voices. Noting that there were some people who had said there was no need for more discussions, given how clear the religious position was, he remarked the issue was not as simple as it appeared. "I wish we could say that, and we could say that to everything else... But does a clear religious position solve a social problem? It is a starting point, but we must also acknowledge and come to terms with the complexity of the issue itself to do it justice. And that's why human societies will always have difficult issues, and we must find a way to talk about them in a way that we can come to an agreement as to how we move forward as a society." Many values in Islam were rooted in compassion, kindness and inclusivity, even in dealing with prohibitions in religion, said the Mufti. He pointed out that there were Muslims who did not practise certain aspects of the religion too. This did not mean the community rejected them, but instead, it should find a constructive way of coexisting while reminding one another to uphold the faith. "We should see how we can apply this same approach and values to all other facets of our social life," he concluded.

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."

LGBT activists

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."

Agreement on dialogue

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."

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.

Analysis of invocation of doctrine of substantive legitimate expectation

The doctrine of legitimate substantive expectation is a legal principle that protects the rights and interests of individuals who have relied on a clear and unambiguous representation made by a public authority. In Tan Seng Kee v AG, the Court of Appeal applied this doctrine to the statements made by the Government and the Attorney-General's Chambers (AGC) regarding the non-enforcement of Section 377A. The Court held that these statements gave rise to a legitimate substantive expectation that Section 377A would not be enforced against consenting adult males in private, and that this expectation could only be defeated by an overriding public interest.

The consequences of invoking this doctrine are as follows:

• It provides a legal basis for challenging the constitutionality of Section 377A on the grounds of Article 9 (right to life and personal liberty) and Article 14 (freedom of expression) of the Constitution, as the Court recognised that the non-enforcement policy could affect the appellants' rights under these Articles. However, the Court ultimately dismissed these challenges, finding that Section 377A did not violate Article 9 or Article 14.
• It limits the scope of locus standi for challenging the constitutionality of Section 377A on the grounds of Article 12 (equal protection of the law) of the Constitution, as the Court held that only those who have been prosecuted or are facing a real threat of prosecution under Section 377A have standing to bring such a challenge. The Court reasoned that since the non-enforcement policy effectively nullified the operation of Section 377A, there was no discrimination in its application. However, the Court also left open the possibility that locus standi could be established in other situations, such as where there is an investigation or harassment under Section 377A. One possible scenario in which a plaintiff could have locus standi in future is if a closeted gay general in the Singapore Armed Forces fornicates with a foreign male spy who then harasses him and threatens to report that they had sex to the Police. The general could then challenge the constitutionality of Section 377A because he would have standing due to the harassment and mandatory investigation he faces.
• It preserves the status quo of Section 377A as a law that remains on the books but is not enforced in practice, unless there is a change in the political or social circumstances that would justify a departure from the non-enforcement policy. The Court emphasised that Section 377A is a matter of legislative policy that should be decided by Parliament and not by the courts, and that the doctrine of legitimate substantive expectation does not prevent Parliament from amending or repealing Section 377A in the future.

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 inthe Apex Court, albeit with a carefully-circumscribed scope of application[32],[33],[34],[35].

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 v AG 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 v AG 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 v AG 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 v AG 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 v AG 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 v AG, 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 v AG was a creative effort to navigate a difficult issue, the Court of Appeal's invocation of the substantive legitimate expectation 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, [36],[37],[38],[39],[40]. The following video is a combination of the reports filed by The Straits Times and Asia One[41]:

Full recording by Channel NewsAsia[42],[43]:

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[44], 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."

Full transcript

"Prof Lee Pey Woan, panellists, ladies and gentlemen, good afternoon to all of you. Thank you for being here today. I wish to thank the Singapore Academy of Law and the Law Society for organising this Forum on a very important legal issue – with significant implications for our society.[45]

Introduction

The focus of the discussion today is on the Tan Seng Kee judgment delivered by the Court of Appeal earlier this year. The point is this – Is there a risk that the Courts could strike down Section 377A in a future challenge, in the context of the Court of Appeal’s comments in Tan Seng Kee?

Many of you will know, during the National Day Rally, PM spoke about Section 377A. He said it was going to be repealed, and he gave two reasons:

(a) First, repealing Section 377A is the right thing to do. We should not criminalise what people do in the privacy of their bedrooms. Repealing Section 377A will provide some relief to gay people.

(b) Second, that the Government has been advised that there is a significant legal risk that Section 377A could be struck down by the Courts in a future challenge. And he disclosed that the Attorney-General and I have advised on that.

The two points that he mentioned are two independent reasons for the repeal of Section 377A. The first of the two reasons is in itself a substantive reason. The PM explained during the National Day Rally why it was important to do this. As I have said, it is a reason that stands on its own. But I do not propose to go into that reason, because for the Forum today, the focus is on the second point – the legal risks.

I will keep my remarks brief, and just focus on two legal points in assessing the risks. First, the constitutionality of Section 377A itself; and two, the question of locus standi. This topic is going to be discussed extensively in Parliament. So today, I will just summarise my views on the two points.

Constitutionality of Section 377A

Section 377A was challenged in Tan Seng Kee on the following grounds:

(a) First, under Article 9 of the Constitution, that it was in breach of Article 9 in terms of protection of Life and Liberty,

(b) Second, it was challenged under Article 14 of the Constitution, which guarantees Freedom of Speech and Expression,

(c) Third, it was challenged under Article 12 of the Constitution, which provides for Equality.

What did the Court of Appeal say?

(a) On Article 9, what you will see is that the Court said that Section 377A does not violate Article 9(1) of the Constitution.

(b) What did they say on Article 14? We therefore see no merit in the Article 14 Constitutional challenge.

(c) What did they say on Article 12? They said, given our finding [above], that Section 377A is currently unenforceable in its entirety; it is unnecessary for us to decide… [We] consider that this issue merits further reflection on suitable occasion in the future.

So, Article 9 and Article 14 are clear, just dismissed out of hand. But Article 12, I think lawyers would understand what that language means. The Court of Appeal said more on Article 12.

(a) On interpretation, it said that they will apply the reasonable classification test.

(b) And they said that there were two possible approaches on how the reasonable classification test can apply. One is the approach in Lim Meng Suang, which was a 2014 decision. And second, the approach in Syed Suhail, which is a more recent 2021 decision.

(c) The Court of Appeal said that the test to be preferred needed to be considered in the future. So, they set out two tests, the two possible approaches in two different cases, and they said, which is the right test to be applied? They will decide in future.

But they went on to say that if the approach in Syed Suhail was to be applied, then Section 377A might be unconstitutional. So, there it is, in black and white. Two possible approaches, and if the approach in Syed Suhail is applied, then Section 377A is probably unconstitutional.

When you look at the judgement, it says this: “On the other hand, if one were to cast the legislative objective of Section 377A more broadly as the expression of societal disapproval of homosexual conduct in general or the safeguarding of public morality generally, that would strengthen the case that Section 377A falls afoul of the ‘reasonable classification’ test.”

It is there, clear, in black and white: “One could then conclude that the differentia embodied in Section 377A (namely male-male sex acts) lacks a rational relation to the legislative object of reflecting societal disapproval of homosexual conduct in general or safeguarding public morality generally.”

They made it very clear. What has happened since Tan Seng Kee?

Lawyers might know that the Court of Appeal has applied the Syed Suhail approach to the Reasonable Classification Test in two cases – in May of this year, and in August of this year. It was applied in the case of Datchinamurthy, and it was applied in another case, Xu Yuan Chen, subsequently.

In effect, the Court of Appeal has already expressed its view:

(a) What they have said is that in Tan Seng Kee, if we take the approach that the Syed Suhail test is the correct one, then Section 377A is probably unconstitutional,

(b) And subsequently, in two other cases this year, they have applied the Syed Suhail test.

So, you put the two together, absent other considerations – Section 377A could be struck down, likely to be struck down by the Courts, if it is challenged again in the future under Article 12 of the Constitution. The Attorney-General advised it; I know a little bit of the law, I advised it. And I can tell this audience that the previous Attorney-Generals have also advised it, and you know who some of the previous Attorney-Generals are. That is on the legal point.

It is also clear that the Court of Appeal preferred not to decide the point. It said that highly contentious societal issues like Section 377A should be resolved through the political process, in Parliament, by Parliament. What has been said:

(a) Politics seems the more obvious choice than litigation for debating and resolving highly contentious societal issues

(b) The court must refrain from trespassing onto what is properly the territory of Parliament

(c) Each branch to respect the institutional space and legitimate prerogatives of the others

(d) Each branch must be allowed to exercise fully and fairly the powers it has been allocated

In effect, dealing with Section 377A is in the province of Parliament. Some have said the Court of Appeal has said they do not want to decide this, this should be within the province of Parliament, so it is up to Parliament. Therefore, Parliament does not need to do anything. That is a very wrong approach. I disagree completely. It is both wrong in law, in Constitutional law, and it is wrong in principle.

There are three major branches of Government – Parliament, the Executive comprising the Cabinet and civil servants, and the Judiciary. Each has its role. If Parliament fails in its duty to do what is right, then the Courts will have to do what we will not want to do. It is as simple as that. The 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 that they leave it to Parliament to do what is right. 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 is the duty of the Executive? To deal with it, or to put on the helmet, go into the bunker and pretend that it does not exist because it is politically too divisive? That is not the way things work in Singapore. You do the right thing. You do not duck. And you do not say, as other Parliaments have said, well, we leave it to the Courts, and hopefully they will deal with it. If Parliament does not do what it has to do, then the Courts will do what they don’t want to do.

Let me now deal with the second issue. I will go into this in greater detail when I speak about it in Parliament.

Locus Standi

The second legal issue relates to locus standi.

The Court of Appeal said it did not have to decide on the Article 12 challenge, because the Appellants did not have standing – they did not have locus standi – to pursue the challenge in the Courts. It looks like a complicated word, but basically, it is whether you have a right that is infringed, which allows you to make a challenge.

They pointed to the political compromise by the Government in 2007 not to enforce Section 377A, which was elaborated upon in 2018 by the Attorney-General, as the Public Prosecutor. The Court of Appeal said this created legitimate expectations that the Public Prosecutor would not prosecute under Section 377A.

And therefore, the Appellants do not face any credible threat of prosecution under Section 377A, and so they have no standing to challenge Section 377A. Because of this, some have said there is no risk of Section 377A being struck down in the future, as long as the Public Prosecutor does not prosecute anyone. The thinking is that the ball is in the Government, or the Public Prosecutor’s court; Section 377A can only be challenged if the Government encourages such a challenge, by prosecuting someone under Section 377A.

These comments, that there is no risk, are based on two premises.

(a) First, that the locus standi point is a complete answer to any legal challenge, and

(b) Second, that the Courts will never change their mind on locus standi.

On the first point, whether locus standi is a complete answer: Just because the Appellants in Tan Seng Kee did not have locus standi, does not necessarily mean that no one else has locus standi. There are people who might argue that they have standing, not on the grounds of a fear of prosecution, but on the grounds of a fear of enforcement in other ways. In Tan Seng Kee, the Court of Appeal took great pains to carefully restrict its views on locus standi to the context of prosecution only. Look at what they said:

“We emphasise again that we are concerned with the enforcement of Section 377A only in the sense of prosecution and not in any other sense (such as, for example, the conduct of police investigations).”

They expressly excluded Police investigations: “[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 Section 377a”.

Now there is a broad universe of cases where the Police may have to conduct investigations, because before you conduct investigations, you would not know what the facts are. If any such investigation in some way relates to conduct which the Police did not realise earlier, but which then relates to conduct falling within Section 377A, someone could argue that they have locus standi, because investigations have been expressly excluded by the Court of Appeal. Look at it from a commonsense point of view – Do you have locus standi only when you get prosecuted? Or do you have locus standi when somebody investigates you? You will say, why are my rights being infringed by this prosecution?

In a 2012 Court of Appeal judgment, the Court of Appeal said that “violations of constitutional rights may occur not only at the point in time when an accused is is prosecuted under an allegedly unconstitutional law, but also when a person is arrested and/or detained and/or charged under an allegedly unconstitutional law”. There’s nothing to prevent someone from arguing that Section 377A is unconstitutional – I have been unfairly investigated, my rights have been affected, and I want a declaration. That person will have standing, even on the terms of what the Court of Appeal said on Tan Seng Kee. More to the point, I have deliberately not covered a number of other fairly obvious cases where there will be locus standi.

There is the risk that a future Court could find that the possibility of investigation under Section 377A is sufficient for there to be locus standi. And, investigations can arise in many contexts. The argument of locus standi is not as complete a defence as some may hope.

Secondly, as lawyers know, on points like locus standi, the Court of Appeal can change its mind. The Tan Seng Kee judgment itself shows this. Tan Seng Kee was the first time, and prior to that, previous cases including Lim Meng Suang, they just dismissed all arguments. Tan Seng Kee said in Article 12 they may be potentially be violated as a change of mind. And on locus standi, Court of Appeal recognised in Tan Seng Kee the Doctrine of Substantive Legitimate Expectations, when it had previously left the question open on whether this doctrine should be part of Singapore law.

The Court of Appeal could decide, for example, that the Constitution confers prosecutorial discretion solely on the Public Prosecutor, and the doctrine of Substantive Legitimate Expectations should not interfere with that. It could also say the doctrine should not confer a right on people to perform an act that is technically criminal. So, we cannot rule out that the Court of Appeal could change its mind, and say that even if there is no prosecution, the fact that a man technically commits a crime in law, each time he has sex with another man, might be sufficient for locus standi.

In summary, my views on the two issues:

(a) First, that the Court of Appeal has strongly suggested that Section 377A is unconstitutional. It is in breach of Article 12, and,

(b) Second, the locus standi point is anything but complete.

What are the possible consequences if Section 377A is struck down? Then the definition of marriage as it stands today will almost certainly be challenged by someone. That is why the Government is moving to keep the current definition of marriage within the province of Parliament, amending the Constitution to prevent any challenge in the court. Because in our view, that has to be decided in Parliament, not anywhere else. Some have said, why doesn’t the Government instead amend the Constitution to protect Section 377A from court challenges?

It has also been suggested – why don’t you amend the Constitution to protect the definition of marriage, and leave Section 377A alone? If the Court of Appeal strikes it down in the future, then so be it? I will deal with these suggestions when we debate the repeal of Section 377A in Parliament.

They are wrong in principle. They require Parliament to do not the right thing, but the wrong thing. And that, I don’t think, is what we want to do. But I will explain that when we deal with this in Parliament.

I have shared my views. I look forward to a fruitful discussion. Thank you."

Discussion

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.

K Shanmugam's speech during the Parliamentary debate over Bills to repeal Section 377A and amend Constitution to protect definition of marriage from court challenges

See also: K Shanmugam's views on homosexuality

On 28 and 29 November 2022, nine months after the Court of Appeal ruling in Tan Seng Kee v AG, a debate was held over two Parliamentary Bills introduced to repeal the statute which criminalised sex between men and to amend the Constitution to protect the definition of marriage from court challenges. A total of forty MPs, NCMPs and NMPs rose to speak on the issue.

[46]

At 1:14pm on 28 November 2022, Home Affairs and Law Minister K Shanmugam delivered a lengthy speech in which he explained that consensual sex between adult men did not raise concerns about law and order and thus should not be looked at as a criminal issue[47],[48],[49].

Furthermore, Section 377A of the Penal Code harmed gay people in Singapore and there was a clear risk of the law being struck down in the courts. If Parliament allowed this to happen, MPs would be avoiding their duty and the outcome would be worse for Singaporeans. “So I say, the time has come for us to remove Section 377A, because it humiliates and hurts gay people. Most gay people do not cause harm to others; they just want to live peacefully and quietly and be accepted as part of society the same as any other Singaporean.” He added gay Singaporeans do not deserve to be stigmatised for their sexual orientation. “To a gay person, even if Section 377A is not enforced, it is there: Memorialised in law, a sword hanging over his head, a daily reminder that every time he engages in private sexual activity, behind closed doors in the sanctity of his bedroom, he is nevertheless a criminal. We have to ask: Is it fair that gays have to live in this way?”

He said this was not a situation that Singaporeans should accept, even if they personally disagreed with homosexuality. Even many of those who did not want the law to be repealed did not want it enforced. For this reason, the law should no longer be on the books and repealing it would make it clear that gay people were not criminals.

Shanmugam went through the legal arguments surrounding the decisions the courts made before making the point that allowing the courts to decide such a difficult societal issue would be an abdication of responsibility on the part of Parliament and could lead to a cascade effect of challenges to various policies. He explained that in Singapore's system, it was not the role of the courts to deal with such issues that needed Parliament's ability to build consensus and consider various points of view. “Court processes are adversarial by nature. Their decisions are binary – it is a zero-sum game; you either win or you lose. There is no middle ground, no balancing of competing interests. The courts cannot consider competing social norms and social consequences of their decisions.” Allowing Section 377A and even the definition of marriage to be changed through a court challenge could create a cascading effect affecting questions relating to media content, housing and other policies. Such changes through the courts were not in Singapore’s interests. To act in the best interests of society, the Government must move on this issue, given the legal analysis.

“We can look at the US to see how court decisions on such issues can seriously affect the fabric of society, divide the society and unleash partisan views on both sides of the divide,” he said. “If we have that in Singapore, our social fabric will fray.” He implored MPs to do what is expected of them and chart a path forward on the difficult issue. He also sketched the historical context behind the adoption of the law in Singapore, going back to its roots in 16th-century England. The law – which outlawed “any act of gross indecency with another male person” – was introduced in Singapore in 1938 when it was a British colony. But the roots of that law lay deeper and it was almost word-for-word a copy of a law from the United Kingdom. The law was passed in 1885, and its own origins were obscure. The Government had not been able to find any background on why the law was introduced, but it did find that the law was introduced at 2.30am, with few MPs present in the British Parliament, as a last-minute amendment to an entirely unrelated Bill meant to protect women and girls and suppress brothels. The UK began the process of decriminalising homosexual acts in 1967, completing it in 2003.

Shanmugam also spoke on the views on homosexuality held around the world, saying it remained a deeply divisive issue. Divisions could be seen even in religiously homogenous communities such as the global Anglican Church. Some churches in the United States and Canada were supportive of homosexuality, while other churches were not. The US was considered more accepting of LGBT people than many other countries, but remained internally split. Some Republican states such as Florida and Texas still had strong objections to LGBT rights and many believed that homosexuality was an abnormal lifestyle choice – a view that was espoused by the Republican Party of Texas. But other Republicans disagreed. He said: “The challenge is much greater for us in Singapore: We don’t have a single ethnic society, or a single religious denomination. It is not a matter that has a straightforward answer, but we will still have to try and find the right way forward for us as a society without tearing up our social fabric.” Globally, there was a general movement even in Asian countries towards the decriminalisation of homosexual sex. “In Singapore, we chart our own path based on what we believe is in our best interests.”

Touching on the debate about the law in 2007 in a review of the Penal Code, he said that Singapore society was now at a stage where it could accept a repeal of the law. “From our engagements, we see that most Singaporeans accept that sex between men should not be a crime.” The Government had made it clear to foreign governments and companies that these were political, social and moral choices for Singaporeans to decide and they should not interfere. In August, US politician Nancy Pelosi issued a statement when she was in Singapore asking business groups to support the LGBT community here, in response to which the Ministry of Home Affairs asked foreign businesses to be careful about advocating socially divisive issues in Singapore. He said: “To US politicians who feel strongly on such issues, they should first try to convince people in Texas and other such places before they issue statements about Singapore.”

Full transcript

"Minister Masagos has explained the reasons for the constitutional amendments. I will now speak on the repeal of section 377A of the Penal Code.

We thought very carefully before moving on the repeal of this section. Over the past year, we have engaged extensively with various groups, some, several times. Those we spoke with include religious leaders, LGBT groups, community leaders, people who want heterosexual marriage as a social norm, youth groups, members of the public who had written to us and many others.

For many who did not believe that section 377A should be repealed, their main concerns were about the consequences of the repeal of section 377A, what will happen after the section is repealed and not because they thought gay sex between men should in itself be criminalised.

In considering whether we should repeal section 377A, I will cover three areas. First, the historical context of section 377A. Second, the political compromise that has been struck in Singapore. And third, the reasons for now moving on the repeal.

First, the historical context. Why do we have to look at the history? We need to understand why and how section 377A became part of the law, whether it was a deliberate, considered decision or perhaps more of happenstance. That provides the context for the discussion. As Members will know, section 377A makes it an offence for a male person, whether in public or private, to commit any act of gross indecency with another male. The term "gross indecency" can include both non-penetrative and penetrative sex acts.

The section was introduced in 1938 when Singapore was a British colony. Attorney General Howell moved the Bill in 1938. He said that section 377A was being introduced to bring our law in line with the UK criminal law. Thus, to understand the genesis of section 377A, we would need to look at the original UK law passed 137 years ago, which is section 11 of the UK Criminal Law Amendment Act (UKCL).

Section 377A is an almost a word-for-word copy of section 11 of the UKCL. Section 11 of the UKCL was passed in 1885. Its origin is quite obscure and we have not been able to find any background, which explains why this section was introduced and made into law. What we did find, was that it was introduced in the UK House of Commons at 2.30 am in the morning with very few members of parliament who were present, as a last-minute amendment to an entirely unrelated bill.

The unrelated bill was meant to protect women and girls and for the suppression of brothels. At that point, that unrelated bill on protection of women and girls had already been through a four-year long process, it had endured a long debate in parliament and it had passed the House of Lords without the amendment.

The unrelated amendment on male homosexuality was introduced by a member of parliament, Mr Henry Labouchere. His motives for introducing section 11 into the bill on protection of women and girls are unclear. One school of thought is that Mr Labouchere had intended it to be a "wrecking amendment", to derail and discredit the entire bill on protection of women and girls. He had that reputation. In fact, he had introduced another amendment to the same bill. Another member of parliament said that Mr Labouchere "couldn't have been serious in introducing that other amendment." Academics who have studied the matter have pointed to Mr Labouchere's habitual parliamentary obstructionist technique. He would make spoiling amendments to discredit bills that have been introduced.

Another school of thought is that Mr Labouchere was fiercely homophobic and so he introduced the amendment. Mr Labouchere himself gave an explanation in parliament for why he introduced section 11 and his explanation raises more questions than it answered. He said that his amendment was to protect any person from an assault of "the kind dealt with" under section 11, whether the person was above, or under, the age of 13 years.

After that short explanation, he said that he did not think it was necessary to discuss the proposal at any length because the government was willing to accept it. If we take at face value what Mr Labouchere said in parliament in 1885, then the purpose of section 11 was to prevent an indecent assault by one male against another male. The provision here introduced, which was passed into law, was however much wider than that, including those where the sex acts were done between consenting male adults.

Thus, the amendment that was introduced was quite different from the explanation that was given. Indeed, the explanation he gave, is somewhat contrary. The amendment was dealt with in parliament for less than four minutes. There was no discussion about the fact that the provision criminalises consenting male homosexual behaviour even though the stated purpose was to criminalise sexual assaults.

People have spent time trying to work out the motives of Mr Labouchere and the reasons that the UK parliament passed the amendment. Some have suggested that the members were fatigued by the late hour – it was 2.30 am – and that the members had been worn out by the long debate on the bill to protect women and girls which, as I said earlier, had taken four years and that the members had just wanted to get on with it, to let the amendment through.

This is the genesis, the background to the law passed in 1885 which has gone on to impact the lives of tens of thousands of people and has caused much controversy and intense debate in many countries.

Mr Speaker, Sir, with your permission, may I ask for the distribution of a folder which contains Annexes 1 to 7 that I am going to refer to?

Mr Speaker: Yes, please. [Handouts were distributed to hon Members.]

Mr K Shanmugam: Members may also access the Annexes through the SG Parl Mobile App.

In addition to section 11 of the UKCL, the UK also had three other offences which were also used sometimes to prosecute homosexual conduct. The first was Sodomy. Sodomy was first criminalised under the Buggery Act 1533 during the reign of King Henry VIII. The reason this law was passed is linked to a specific, important, historical event in British history and not because there was any specific intention to make Sodomy a crime.

I have in Annex 1, set out the background and context to how and why the Buggery Act was passed into law. [Please refer to Annex 1.] Prior to 1533, sodomy was considered an offence punished by the church. It was only tried in the Ecclesiastical Courts. In other words, not a crime as defined by the state; it was an offence in a religious context to be dealt with by the church. Members would know that Henry VIII broke with the church in Rome, started the Church of England, with him as the head of the church. He wanted to reduce the power of the church and one of the ways he did that was to reduce the power of the Ecclesiastical Courts. He did that by converting many of the church's canon laws into secular laws. The Buggery Act was one such law that was brought over from the canon laws and made into secular criminal law. That way, the King's courts would deal with the matter and the churches' jurisdiction was removed.

What happened thereafter is also useful to note. His daughter, Mary, was an ardent Catholic. When she became Queen in 1553, she abolished the Buggery Act and moved it back to the Ecclesiastical Courts. Queen Elizabeth, another of Henry's daughter, succeeded Queen Mary five years later in 1558. There were questions on her legitimacy and her claims to the throne. She took several steps to establish her legitimacy. And one of the steps she took was to reduce the role of the church by moving the laws out of canon laws and making them secular laws to show that she was following in her father's footsteps. So, the Buggery Act became secular criminal law again.

When you go through this history into the origins of the offence of sodomy, we see that it was introduced as part of a power struggle between Henry and the Catholic church, and not because of any view that Sodomy per se ought to be criminalised.

I am setting out the historical context factually, not suggesting that sodomy ought or ought not to have been criminalised.

The second Act that was used to prosecute homosexual conduct was the offence of solicitating or importuning in public places for immoral purposes. This was first introduced under the Vagrancy Act 1898. It was initially intended to target pimps, men who lived off the earnings of female prostitutes. In practice, however, the legislation was used almost exclusively to prosecute men who engaged in homosexual conduct in public, though male homosexuality was not discussed in parliament when the Bill was first introduced.

The third offence was the offence of indecent assault against males. This was first introduced in under the Offences Against the Person Act 1861. The offence criminalised homosexual acts committed against males without consent. It was introduced as a part of a wider omnibus bill consolidating all offences against the person and was included in the same provision as an offence of attempting to commit sodomy.

Unfortunately, the provision and its overlap with existing homosexual offences and even male homosexuality were not discussed at all during the parliamentary debates. What we see is that these provisions, when they were first introduced, there was no substantive deliberation on whether there was indeed a need to criminalise homosexual behaviour and it looks more like happenstance than a deliberate decision.

Regardless, the criminal provisions were retained as part of the UK's criminal law until the 1960s. The UK government appointed a committee known as the Wolfenden Committee in August 1954 to review laws relating to homosexual offences. That committee published a report in 1957. The committee stated that it was not charged to enter into matters of private moral conduct except insofar as they directly affect the public good. The committee was only concerned with whether homosexual behaviour should be dealt with under the criminal law.

The committee concluded that the function of criminal law was three-fold. One, to preserve public order and decency. Two, to protect the citizen from what is offensive and injurious. And three, to provide sufficient safeguards against the exploitation and corruption of others. In their view, it was not the function of criminal law to intervene in the private lives of citizens or to seek to enforce any particular pattern of behaviour, further than it was necessary to carry out these three functions. The committee took the view that homosexual activities in private should not be criminalised.

The committee stated that: "Unless a deliberate attempt be made by society through the agency of the law to equate the sphere of crime with that of sin, there must remain a realm of private morality and immorality which is not the law's business. To say this, is not to condone or encourage private immorality. Moral conviction or instinctive feeling, however strong, is not a valid basis for over-riding the individual's privacy and for bringing within the ambit of the criminal law private sexual behaviour of this kind."

The committee accepted that homosexual behaviour between males could have a damaging effect on family life. Let me pause there. I think many Singaporeans believe this as well and we must acknowledge these feelings and beliefs. The committee, however, emphasised that this damage was no greater than many other activities which were sins and may be considered immoral but were not otherwise criminal offences.

The debate continued through the late 1950s and early 1960s. Law students may recall the well-known debate between Lord Devlin and Professor Hart on the Wolfenden report. For Members' reference, I have summarised the points they made in Annex 7. [Please refer to Annex 7.] Eventually, Lord Devlin, who had argued for the criminalisation of shared morality, also said that private consensual homosexual sex between adults should be decriminalised.

In 1967, the UK parliament voted to decriminalise private consensual homosexual sex between two adults. By that time, religious groups such as the Church of England and the Methodist Conference and members of both houses had publicly expressed support for a change. The members of the House of Lords who spoke in support of decriminalisation included the Lord Chancellor. He was the Speaker of the House of Lords and the Head of the Judiciary, as well as the Lord Archbishop of Canterbury, who was the leader of the Church of England and the head of the global Anglican Union as well as various other bishops.

I would like to briefly cite the speech made by the Lord Archbishop of Canterbury. He stated upfront that he believed that homosexual acts were wrong, he went on to say that the case for amending the law rested on reason and justice, and on considerations of the good of the community. He said, to amend the law was not to condone the "wrongness" of the act. It, however, put such acts in the realm of private moral responsibility. He believed that the law, as it stood, gave a sense of injustice and bitterness, which helped morality no more than would a law which made fornication a crime.

He further agreed with his predecessor that having such a law created fear, secretiveness and despair in gay persons who did not dare to seek help, lest they expose themselves and their friends to criminal proceedings.

I would add that not all religious groups were in favour of the change. Some, such as the Church of Scotland and the Church of Ireland and the Baptist Church, objected to the reform.

In 2003, all of the UK’s laws that specifically criminalised male homosexual behaviour, including the offence of gross indecency, were fully repealed.

Before I move on from the UK, I would like to highlight the context of Northern Ireland. Northern Ireland was and is part of the UK. However, the partial decriminalisation of homosexual conduct in the UK in 1967 only applied to the mainland and did not apply to Northern Ireland. Northern Ireland’s path to decriminalisation started instead from the courts.

After 14 years, in 1981, the European Court of Human Rights found that criminalising private homosexual conduct between men was “an unjustified interference with [a person’s] right to respect for his private life” and was a breach of the European Convention on Human Rights. The UK was bound by that decision and the UK Parliament decriminalised private, consensual homosexual conduct between adults in Northern Ireland in 1982.

However, at that time, Northern Ireland’s society was deeply religious, largely conservative and the majority of the population on Northern Ireland opposed the decriminalisation, including most of the Protestant Churches as well as the Roman Catholic Church. The Bill was opposed by all 12 of the Northern Ireland MPs in the UK Parliament. But, nonetheless, it passed through both Houses by majority vote.

Northern Ireland’s experience shows how a court decision can force a change even though a society is not ready for such a change. I will come back to this later.

Today, homosexuality remains a deeply divisive issue around the world. This is true even within more religiously homogenous communities, such as the Church of England and the Global Anglican Church.

If we look at the Anglican Communion, it comprises 42 member churches. It is the third largest Christian communion after the Catholic and Eastern Orthodox churches. For decades, there has been a strong difference of views within the Anglican Communion on whether same-sex unions can be legitimised and blessed and whether persons living in same-sex relationships can be ordained.

Some Anglican churches in the Global North, such as in the US and Canada, are increasingly supportive of homosexuality. They allow same-sex marriages and ordain persons in same-sex relationships. However, several Anglican Churches from the Global South do not agree with this approach. This has resulted in the creation of the Global Anglican Future Conference, or GAFCON, in 2008, led by the more conservative Anglican bishops and leaders.

In the Church of England, LGBT issues have also been the subject of intense debate for decades.

I mentioned earlier that the Church of England had supported the partial decriminalisation of homosexual conduct in the UK in 1967. But actually, within the Church of England, there was no consensus. The Church was more or less equally split on the issue when it was put to a vote. Of its 735 members, 155 voted in favour, 138 voted against, and the rest either absented themselves or abstained.

So, there continues to be strong differences in viewpoints on this issue, as Members may have seen from recent media reports.

What does all of this show? First, that even within a single religious community, it is difficult to agree on the “right” answer, assuming there is one, on the issue of homosexuality. Second, that homosexuality is a topic that continues to raise strong viewpoints. Third, that if we do not handle this carefully, homosexuality can be a deeply divisive issue even among those who share a common belief.

Some of the international media outlets that report on these issues often gloss over these differences. They gloss over the problems their societies face, and do not understand the need to deal with these issues sensitively, with understanding. They present views as if they are settled and that anyone who has a negative view of male homosexuality is a bigot and is wrong.

If you look at the US, it is considered more accepting of LGBT rights than many other countries. But the country is internally split over this issue. For example, in the Republican states of Florida and Texas, there remain strong objections to LGBT rights.

The Republican Party of Texas recently adopted anti-LGBT positions into their party platform. They state, and I quote: “Homosexuality is an abnormal lifestyle choice. We believe there should be no granting of special legal entitlements or creation of special status for homosexual behaviour, regardless of state of origin, and we oppose any criminal or civil penalties against those who oppose homosexuality out of faith, conviction or belief in traditional values. No one should be granted special legal status based on their LGBTQ+ identification.”

But other Republicans have different views on homosexuality. A survey of more than 22,000 people by the Public Religion Research Institute in March of this year found that 48% supported same-sex marriage and 50% opposed it. These were persons who identified themselves as Republicans.

If you look at, say, Italy – I will not go through in detail. I have in set out what has been happening in Italy in Annex 2. [Please refer to Annex 2.] You will see the divisions.

I have laid out examples of how, within the same religion, the same denomination, the same churches within the denomination and in wider society, within some Western countries, even those who are often described as "liberal", the issues remain deeply divisive.

To be clear, it is not the exact same issue in all these communities. In some, the division is about homosexuality in itself. In some, it is about the roles of LGBT people, for example, in church ordination. In others, it is other related issues like same-sex unions that are divisive.

Let me now say something about global trends. Around the world, in several countries, as well as in jurisdictions and territories which are not quite countries, several have decriminalised their version of section 377A, including Commonwealth and Southeast Asian countries.

Some have decriminalised it through the parliamentary process. Some have had their section 377A equivalent struck down by the courts. But there are also some countries which continue to keep the criminal laws.

Mr Speaker, with your permission, I would like to display some slides on the screen. Slides 1 and 2 of Annex 3 show the countries, territories and jurisdictions that have decriminalised homosexuality and those which have not done so, because not all the places in these two slides are countries. [Please refer to Annex 3.]

Slide 3 shows the same for Asian states, places and jurisdictions.

We can see that across the world there are different approaches, even though there is a trend towards decriminalisation.

In Singapore, we look carefully at international trends, but we do not simply follow such trends. We chart our own path based on what we believe is in our own best interests. And we are very clear to foreign governments and companies that these are political, social and moral choices for Singaporeans to decide and that they should not interfere.

For example, in 2021, the US embassy co-hosted a webinar on LGBT rights with a Singaporean LGBT organisation. MFA spoke to the embassy to remind them not to interfere in our domestic politics.

More recently, in August this year, US House Speaker Nancy Pelosi issued a statement when she was in Singapore asking business groups to support the LGBT community in Singapore. MHA issued a statement reminding foreign businesses to be careful about advocating on socially divisive issues in Singapore.

We would also say to US politicians who feel very strongly about these issues that perhaps they should first try and persuade the people in Texas and other such places before they issue statements in Singapore.

In Singapore, section 377A was substantively debated in Parliament 15 years ago in 2007, during the Second Reading of the Penal Code (Amendment) Bill. Over the course of two days, 16 Members of Parliament and Nominated Members of Parliament rose to speak on section 377A, to argue for, and against, its retention.

It was a long debate. I have summarised the different positions taken by the Members of Parliament and Nominated Members of Parliament in Annex 4. [Please refer to Annex 4.]

The Prime Minister spoke and stated the Government's position. He said that Singaporeans as a whole remained largely conservative. The majority wanted to keep Singapore a conservative society with heterosexual stable families. But at the same time, there was growing science-based evidence that sexual orientation was substantially inborn. Gay people must have a place in society and they are entitled to their private lives. But there were still very different views among Singaporeans on whether homosexuality was acceptable or morally right. Thus, LGBT advocacy should not set the tone for the rest of Singapore society.

We will try and maintain a balance, said the Prime Minister, to uphold a stable society with traditional, heterosexual family values, but with space for homosexuals to live their lives and contribute to society. He added that we would continue to retain section 377A but not proactively enforce it.

It was a very Singaporean way of dealing with the situation, which best fitted with the way our society was.

The Prime Minister also reminded Members that section 377A was inherited from the British and that Asian societies which were similar to ours did not have such laws – not in Japan, not in China and not in Taiwan. But if we forced the issue, it would divide and polarise our society. It would lead to even less space for the gay community in Singapore. Therefore, it was better to let the situation evolve gradually.

It was a compromise. It was better and it has worked for Singapore in the past 15 years. We managed to maintain some harmony while many other societies have become deeply divided on these issues over the same period.

Let me now move on to explain why we propose to repeal section 377A at this point. There are two main reasons. First, it is the right thing to do, and society is more ready now for the repeal. Second, there is a significant legal risk that the Courts will strike down section 377A if we left it alone and did nothing.

Let me deal with the first reason. In some religions, homosexuality is considered a sin. As Members heard earlier, some sins are crimes, but not every sin is a crime.

Our position in Singapore is, for a conduct to be a crime, there should, generally, be a public order or public interest issue. It is broadly similar to the position set out by the Wolfenden Committee, which I referred to earlier.

The basic function of criminal law is to preserve public order and decency, to protect citizens from what is offensive and injurious, and to provide sufficient safeguards against exploitation and corruption of others.

In Singapore, like in many other places, it is, generally, not the function of criminal law to intervene in the private lives of citizens.

As we consider this question, it is also important to understand what will remain criminalised, even if section 377A is repealed.

First, non-consensual sexual assault by males against other males will obviously be an offence, and it is a serious offence. Two, sexual acts committed by males against young persons, again, a serious offence regardless of consent. Three, sexual acts between two males committed in public that offend public decency will remain an offence.

The maximum penalty for the first two offences is, in fact, more severe than the maximum penalty under section 377A and rightly so. This Government takes an extremely stern view against all non-consensual sexual offences and in respect of sexual offences against minors.

The only thing that will no longer be an offence after the repeal is consensual, male adult homosexual conduct conducted in private. Such conduct does not raise law-and-order concerns.

The time has come for us to remove section 377A. It humiliates and hurts gay people. Most gay people do not cause harm to others. They just want to live peacefully and quietly and be accepted as part of society – the same as any other Singaporean.

They are our family, our friends, our colleagues. They deserve dignity, respect, acceptance. They do not deserve to be stigmatised because of their sexual orientation. To a gay person, even if section 377A is not enforced, it is there, memorialised in the law, a sword hanging over his head, a daily reminder that every time he engages in private sexual activity, behind closed doors, in the sanctity of his bedroom, he is, nevertheless, a criminal.

We have to ask, is it fair that gays have to live in this way? This is not something we should accept, even if we personally disagree with homosexuality. So, I will say – let us start to deal with these divides, heal these divides, remove their pain. Section 377A should no longer be in our books. Repealing section 377A makes it clear that gay people are not criminals.

Compared to 2007, we are now at a stage where our society can accept the repeal of section 377A. From our engagements, we see that most Singaporeans accept that sex between men should not be a crime. Even those who want to retain section 377A, do not want to see it actively enforced.

But as has been stated, in and out of Parliament, we must, and we will take steps at the same time to deal with the possible consequences of the repeal. The constitutional amendment is one big step. There are others. Because some consequences would be unacceptable to a significant section of our society.

The Government has explained its position about dealing with consequences, Members can refer to Annex 5 for a summary of what the Prime Minister, Deputy Prime Minister Lawrence Wong, various Ministries, as well as I, have said on the matter. [Please refer to Annex 5.]

Let me move on to the second reason for the repeal and that is that leaving section 377A alone in the books carries a significant legal risk. The Courts may strike down section 377A in the future and if the Courts strike down section 377A, it will be a binary process. The Courts cannot deal with all the legitimate concerns about the consequential effects of the repeal, which many are concerned about.

Why do we say there is a significant legal risk of section 377A being struck down? Let me take Members through two Court of Appeal decisions.

The Courts of Appeal has dealt with section 377A twice in the last 10 years. First, in Lim Meng Suang vs Attorney-General, decided in 2014; and second, in Tan Seng Kee vs Attorney-General, decided earlier this year in 2022. Both decisions took quite different approaches on two issues. First, a procedural issue; and second, a substantive issue.

In Lim Meng Suang, the Court made a procedural decision in 2012 and the substantive decision in 2014. The procedural decision was on standing – whether the applicants had locus standi, or standing, whether they were entitled to make the application. The Court of Appeal said that the applicants did have locus standi because there was a real and credible threat of future prosecution. The Court of Appeal further added that even if no prosecution was contemplated, the applicants could bring their action, they had standing, because of the very existence of a law which is unconstitutional. Members should note the Court of Appeal in 2012 said the very existence of 377A gave locus standi, for an applicant to make an application.

On the substantive issue, the Court of Appeal said that section 377A did not contravene either Article 9 or Article 12 of the Constitution. On Article 12, the Court of Appeal applied a legal test, known as a "reasonable classification" test to come to that conclusion. It said that section 377A satisfied that test and did not violate Article 12. The Court of Appeal, therefore, dismissed the application in Lim Meng Suang, on the substantive basis that section 377A was not unconstitutional, even though the applicants had locus standi to bring the challenge.

Section 377A was then challenged again in the Courts in Tan Seng Kee. It was again argued that section 377A contravened Articles 9 and 12. In addition, section 377A was also challenged, on the grounds that it contravened Article 14 of the Constitution, which guaranteed the right of freedom of speech and expression. The Court of Appeal dismissed the challenge. How and why the Court of Appeal came to that decision and what it said is important.

This time in Tan Seng Kee, the appeal was dismissed on procedural grounds, on the basis that the applicants lacked locus standi to challenge section 377A. And the Court deliberately did not rule on one of the substantive grounds.

First, on the procedural issue, the Court of Appeal reversed itself on the locus standi point and took a different view from its earlier decision in Lim Meng Suang. The Court of Appeal said that there was no locus standi because the Attorney-General had said that, absent other factors, there would generally be no prosecution under section 377A, where the conduct was between two consenting adults in a private place. On this basis, the Court of Appeal said that section 377A was unenforceable until the Attorney-General gave clear notice that he intended to enforce section 377A.

Thus, according to the Court of Appeal, the applicants did not face any real or credible threat of prosecution under 377A and so, they did not have standing to bring the case. In Lim Meng Suang, the Court of Appeal had said that the very existence of 377A was enough to give locus standi. In Tan Seng Kee, the Court took a diametrically opposite view.

Members will note one Court of Appeal can disagree with another Court of Appeal. I will come back to this.

It is also significant to see what the Court of Appeal had to say in Tan Seng Kee on the substantive issue, as to whether section 377A was unconstitutional. The Court of Appeal actually did not need to give any view on the substantive merits of the challenge because it had already said that the applicants could not bring the case. But it, nevertheless, went on to give its views. Sir, with your permission, we can show in a slide, some basic points that they made.

Mr Speaker: Yes.

Mr K Shanmugam: The Court of Appeal first considered the arguments in relation to Article 9 of the Constitution, on life and personal liberty, and said, quite clearly, that section 377A did not violate Article 9.

The Court, then, considered whether section 377A contravened Article 14 on freedom of speech and expression, and it said no, there was no contravention. Then, it considered Article 12, the equal protection clause, on this, the Court of Appeal took a different view from its previous decision in Lim Meng Suang. The Court of Appeal said that there were two ways to apply the "reasonable classification" test: one is the approach adopted in Lim Meng Suang in 2014; and the second was the approach adopted in a 2021 case in Syed Suhail.

The Court of Appeal went into a detailed comparison between the two approaches. The Court said that if the Syed Suhail approach is taken, then section 377A might fall afoul of the "reasonable classification" test. If you see what the Court of Appeal has said: "One could then conclude that the differentia embodied in section 377A (namely, male-male sex acts) lacks a rational relation to legislative object of reflecting societal disapproval of homosexual conduct in general or safeguarding public morality generally."

In plain language, what this means is section 377A is probably unconstitutional. If the Syed Suhail test is to be applied. Even though the Court of Appeal was careful to say section 377A might be unconstitutional if the test in Syed Suhail was applied, lawyers would know – at least some lawyers would know – that the Court of Appeal has, in fact, in subsequent cases applied the Syed Suhail test.

After the decision in Tan Seng Kee, the Court of Appeal has applied the Syed Suhail test and approach in two other cases, in May and August of this year. In May 2022, in Datchinamurthy a/l Kataiah vs Attorney-General; and in August 2022, in Terry Xu's case.

What does all of this mean, in plain language? It means that if another constitutional challenge against section 377A is brought before the Court, the Syed Suhail test is likely to be applied. And if that test is applied, section 377A is likely to be struck down on the grounds that it breaches Article 12 of the Constitution.

Some Members could say, "Well, we accept what the Court of Appeal has said". But the Court of Appeal in Tan Seng Kee this year also said there is no locus standi to bring the challenge. So, as long as the Attorney-General maintains the current position and does not re-assert the right to prosecute cases under section 377A, then there should be no risk that section 377A would be found unconstitutional because no one would have standing to challenge it in the first place.

Taking such a view, I can give an analogy, it is like letting a small boat sail in choppy waters surrounded by rocks and hoping that the boat would not crash into the rocks. There are two major risks in taking this view.

First, just because the applicants in Tan Seng Kee did not have standing, does not mean that no one else will have standing in a future case. For example, persons who had been convicted in the past under section 377A, they may well have a case for standing – I do not want my speech to be read as giving a right to people; it is my personal view. But such persons may well have a case for standing by arguing that their rights had been violated and, therefore, that they have sufficient interest to challenge the constitutionality of section 377A.

They will not be able to directly reopen their convictions, but they can ask for section 377A to be struck down on the basis that this will give them vindication. And the very fact that they have been convicted under an unconstitutional legislation gives them the standing and to allow them to redress the hurt of their conviction.

If you look at Tan Seng Kee, the Court of Appeal was very careful to circumscribe what it said about who had locus standi. It expressly stated that its decision on locus standi will not, for example, prevent Police from investigating conduct under section 377A. In reality, there is a broad universe of cases where the Police may have to investigate, because before investigating, they might not know exactly what the facts are. So, you cannot rule out the possibility that in some situations, a person involved in the investigations brings a challenge. And you cannot rule out there a future Court could find this to be sufficient grounds for a person to have locus standi to challenge section 377A.

And, of course, there is the other risk. The Court of Appeal can always change its mind on locus standi, just as it did between Lim Meng Suang and Tan Seng Kee. It changed its mind precisely on this point of locus standi. So, we cannot proceed in the belief that the Court of Appeal will certainly not change its views in the future.

In September this year, I took part in a law forum organised by the Singapore Academy of Law and the Law Society, which discussed the implications of Tan Seng Kee and the legal risks surrounding section 377A. There was a panel discussion moderated by the Dean of the SMU law school. The panel and audience included the Dean of SUSS law school, legal scholars from our law faculties, past and present presidents of the Law Society, Senior Counsel and distinguished senior legal experts. The panel and the audience were pretty unanimous on the legal risks surrounding section 377A, in light of Tan Seng Kee. Members can refer to Annex 6 for key points and views that were shared at the law forum. [Please refer to Annex 6.]

As the Attorney-General and I looked carefully at the Tan Seng Kee judgment and as the Prime Minister said during the National Day Rally, the Attorney-General and I have advised the Government that in a future Court challenge, there is a significant risk of section 377A being struck down.

So, let us be clear: one, after the Tan Seng Kee judgment, section 377A is at significant risk of being struck down in a future challenge; and two, we cannot simply hope that the point on locus standi is enough for the Government and Parliament to do nothing. That will be just wishful thinking, and wishful thinking is no substitute for careful legal analysis or proper policy.

If we engage in wishful thinking and if section 377A is struck down in the Courts, that could lead to a whole series of consequences, which would be very damaging to our Singaporean society. I will come back to this. But before I do that, it is useful to look at what happened in India, as an illustration.

In India, their section 377 was challenged on grounds broadly similar to those used to challenge our section 377A in Singapore. In 2009, the Delhi High Court ruled that their section 377 was unconstitutional. The court then said that its decision would apply only until parliament repealed section 377 as per the recommendations made by a law commission in 2000, nine years before the decision of the court.

After the judgment, however, the Indian parliament did not do anything about the law. The government also did not appeal the High Court judgment. Instead, an appeal was brought by some organisations and individuals.

On appeal in 2013, the Indian Supreme Court overturned the High Court decision, saying there was no "constitutional infirmity". So, section 377 was held to be constitutional.

Nonetheless, the court emphasised that parliament was still free to consider the desirability and propriety of deleting section 377 from the Indian Penal Code or amending it to exclude private acts between consenting adults. Parliament, however, did nothing after this decision.

In 2016, a fresh application was filed in the Indian Supreme Court to again challenge the constitutionality of section 377. In 2018, the Indian Supreme Court ruled section 377 to be unconstitutional with regard to consensual acts between adults. It reversed its 2013 decision on the grounds that section 377 violated the right to life and liberty, which is Article 9 of our Constitution, that it violated the right to equal protection, which is Article 12 of our Constitution, and that it violated the right to freedom of expression, which is Article 14 of our Constitution. And the court found that section 377 did punish homosexuals arbitrarily.

The court said that a subjective notion of public or societal morality which discriminated against LGBT persons and subjected them to criminal sanctions, simply on the basis of an innate characteristic ran counter to the Indian constitution and could not form the basis of legitimate state interest. The court held that parliament's failure to delete section 377 was not, in any way, a good reason for the court not to strike down section 377. When a provision violated the constitution, the courts must strike it down.

Fast forward to this year, 2022, as Minister Masagos had mentioned in his speech, the Indian Supreme Court has expanded the definition of family to include same-sex relationships. The court held that such atypical manifestations of the family unit are equally deserving of protection.

What is the lesson here? When Parliament does not act, when it should act, then we may leave the courts with no choice. If fundamental constitutional rights have been violated and, yet, Parliament abdicates its duties, then the courts may have no choice but to act. And what can happen if the Courts strike down section 377A? Then, our laws defining marriage as being between a man and a woman, and our laws and policies based on that definition, could also be at risk sometime in the future.

For example, the heterosexual definition of marriage could be challenged on the basis that it is against Article 12 of the Constitution. It could be argued that equal protection means we cannot discriminate against same-sex couples, in the same way that section 377A can be said to discriminate against gay persons. It could be asked: why should a marriage only be between a man and a woman? Why can a marriage between two men or between two women not be considered a marriage?

Some places, jurisdictions like Taiwan and some countries like the US, have ended up legalising same-sex marriage through court challenges.

As mentioned earlier, India's Supreme Court also recently said that "family" will include same-sex relationships.

In Singapore, so far, the Courts have recognised that Parliament, as the elected branch of Government, is better suited to resolve such difficult societal issues. In Parliament, there can be consultation, discussion and debate. Considerations going well beyond the law can be taken into account, whereas Courts can only consider the legal issues. Consensus can be forged in Parliament to bridge divergent viewpoints. Open-ended resolutions are possible, instead of binary, win-lose outcomes.

There are some who have said, since our Courts have recognised what belongs to the political process and what belongs to the judicial process, it is unlikely that the Courts will ever strike down section 377A. In other words, we can just take the easy way. We do not need to decide. We just let things be.

But such an approach would be irresponsible and wrong.

Members may know, the Court of Appeal has also said that although the 2007 compromise was inherently political, legal standards do still exist and may be applied to judge the legality or constitutionality of section 377A. So, we should not assume that the Courts will never strike down section 377A just because the Government chooses to retain it.

Our system has only worked well all these years because all three branches of the state – Parliament, the Executive and the Judiciary – work within their respective boundaries and have fulfilled their respective roles. But if Parliament does not do its duty, if Parliament does not deal with the law which is likely unconstitutional, then, you may leave the Courts with no choice. If Parliament does not do what it has to do, then the Courts will have to do what they do not want to do.

So, I emphasise – Parliament has a duty to deal squarely with laws which are unconstitutional. If Parliament abdicates its duty and does not do what it has to do, then the Courts may have to do what they do not want to do.

It would be much easier for us, as Members of Parliament, to leave this to the Courts – "leave the question to the wisdom of the honourable Court", as the Indian Government did. If we left it to the Courts, the Government would bear no blame. It is the path of least resistance. If we approached this purely as politicians, concerned only with votes, and not making anyone unhappy or making as few people unhappy as possible, then, that road of leaving it to the Court would have been easier. Pretend that these issues do not exist, need not have been talked about after the Court of Appeal's decision in Tan Seng Kee, leave it to the Courts.

But this Government will not take that approach. As elected representatives of the people, we cannot do that. If we see a risk that a law may be found unconstitutional, it is our duty to act and deal with it in Parliament, both because it is our duty to do so and because taking the easy way out would have serious negative consequences for our society. It will be very bad for Singapore.

As I said earlier, the Court processes are adversarial by nature. Their decisions are binary, zero-sum. You either win or you lose. There is no middle ground, no balancing of competing interests. The Courts cannot consider competing social norms and social consequences of their decisions. If they strike down section 377A, they will do so without being able to consider the consequential effects of that decision on the definition of marriage, for example.

Whereas, in Parliament, we are now proposing amendments to the Constitution to further protect heterosexual marriage.

Going further, if the definition of marriage is changed through a Court challenge, there can be a cascading effect. It could impact questions relating to same-sex marriage, media content, housing policies, various other policies.

Housing policies can be challenged. It could be asked: why should we only give housing benefits to heterosexual married couples? It could be argued that that is unequal under Article 12.

Media content rules could be challenged. Why should we impose higher ratings for content on movies and Netflix that depict same-sex family units? It could be argued that this curtails some producers' freedom of expression under Article 9.

Such changes through the Court are not in our interests. If we want to act in the best interests of Singapore, then, we have to move on this, given the legal analysis.

We can look at the United States to see how Court decisions on such issues can seriously affect the fabric of society, divide the society, unleash partisan views on both sides of the divide.

If we have that in Singapore, our social fabric will fray. If the Government and Parliament do not take responsibility and, instead, stand by and do nothing, then, litigation could change our societal norms very quickly.

I want to emphasise this. I have given two reasons for proposing the repeal of section 377A.

One, we should do so because there are no public order issues that are raised from such conduct. So, it should not remain criminal. But I accept that Members of Parliament (MPs) and others may disagree with that, that even though there are no public order issues, they may feel that there are other reasons for keeping the law. And I accept that people can and do legitimately have such views and it is reasonable to hold such views.

But the second reason I have given, the legal consequences, that is not a matter of conscience. It is a policy question. It requires each of us to think carefully and apply our minds.

The second question is a matter of considering the consequences for Singapore, given that there is a clear legal risk that section 377A could be struck down and given that, having heard me, you know what the consequential legal risks are. In fact, this has been talked about in public – what the consequential legal risks are to the heterosexual family, housing, education, other policies, that they could all be at risk. Knowing all these risks and refusing to take a position or be clear in how we will deal with it, is avoiding our responsibilities as MPs, basically, passing it on onto the Courts.

It is easier politically, but it is also worse for Singapore and Singaporeans. And, to put it bluntly, that will be an abdication of duty and it will be cynical if we, as MPs, did that, because we would be putting, if we take this as a deliberate decision, political capital over doing what is good for Singaporeans.

So, Mr Speaker, I believe that, in this House, if we proceed in good faith, there are matters of conscience. But ultimately, there is also the question of what is in Singapore's interest, and what is in the interest of Singaporeans. And the law here and the legal consequences here, go beyond matters of conscience. This is like a train approaching. The question is: are we prepared to take the appropriate steps to save and safeguard what is important for our society, whether we have the courage of our conviction, which should be to do what is good for Singapore?

So, Mr Speaker, I say to all Members, let us do what is right, do our duty, what is expected of us in Parliament and take a path forward on this difficult issue."

CJ Sundaresh Menon's opening address at Conversations with the Community event

On 21 September 2023, at an event entitled Conversations with the Community, Chief Justice Sundaresh Menon spoke about the role of the judiciary in upholding the rule of law and ensuring justice for all, especially in times of rapid change and uncertainty[50]. He alluded occasionally to Tan Seng Kee v AG to illustrate his arguments.

Transcript:

Introduction

A very good afternoon, and thank you for joining us today for the first of a series of “Conversations with the Community” organised by the Singapore Courts. Let me also thank the Singapore Management University’s Yong Pung How School of Law for working with us to put this event together. These conversations provide a valuable opportunity for dialogue between the Judiciary and the broader community on topical issues at the intersection of law and society, and I very much hope that each session will give us cause for reflection and thought.

It is appropriate that this series of conversations opens with a fundamental question: what is the role of the courts in our society? In The Federalist Papers, one of the American Founding Fathers, Alexander Hamilton, famously described the Judiciary as “the least dangerous” of the three branches of government in a system based on the separation of powers. The Executive, he said, “holds the sword of the community”, and the Legislature “prescribes the rules by which the duties and rights of every citizen are to be regulated”. In contrast, the Judiciary, “may … be said to have neither force nor will, but merely judgment".

Hamilton wrote those words in 1788, but they still encapsulate fundamental aspects of our understanding of the Judiciary’s role today: it is well known that the courts’ essential function is to “say what the law is”. But, especially in more recent times, our understanding of the role of the Judiciary as an institution has evolved. My principal thesis today is that the courts have two distinct but complementary kinds of roles in safeguarding our society. The first is the one we are all familiar with – the courts’ adjudicative role, to interpret and apply the law in each case in a fair and principled way that ensures respect for the constitutional and institutional space of each branch of government. The second might be labelled the courts’ systemic role, by which I mean its task of developing and operating a system for the administration of justice that is accessible to all and meets the needs of all. It is by discharging both these roles that the courts can secure public trust in our justice system and, more broadly, in the rule of law in our society. II. The adjudicative role of the courts

Let me begin with the adjudicative role of the courts. In deciding each case that comes before them, the courts exercise the judicial power that is vested in them by the Constitution, which is the supreme law of the land and which enshrines, among other things, the fundamental liberties of our people. But the Constitution equally vests legislative power in Parliament and executive authority in the Cabinet and the President. This reflects a separation of powers, premised on the notion that the Judiciary, the Executive and the Legislature are co-equal branches of government, each with its own constitutional territory and institutional space.

The separation of powers means that each branch must be allowed to fully and fairly exercise the powers that it has been allocated within our constitutional order. This, in turn, requires the courts to be guided by two core principles in discharging their adjudicative role: judicial courage, and judicial modesty. Let me elaborate on each of these in turn.

Judicial courage

First, the courts must demonstrate judicial courage in exercising the judicial power that has been entrusted to them. Our courts do not shy away from adjudicating on the constitutionality and legality of legislative and executive acts when it is necessary to do so. On the contrary, the courts have maintained that this is a task that “lies exclusively within the ambit and competence of the courts”. This is central to their role in safeguarding society against any unlawful exercises of state power, and protecting individuals from infringements of their rights and liberties. Four decades before Hamilton described the Judiciary as “the least dangerous” branch, Montesquieu – in one of his earliest statements of the separation of powers doctrine – explained its rationale in terms of the protection of liberty. He said there would be “no liberty” if the judicial power was not separated from that of the Legislature and the Executive, because that would allow “tyrannical laws” to be executed in a “tyrannical manner”. This, he suggested, would mean “an end of everything”.

Happily, the kind of tyranny that Montesquieu envisaged is unthinkable for us. But the courts have nevertheless taken a robust approach to applying the law impartially in each case, and to ensuring that all exercises of state power abide by their proper legal limits. Let me illustrate this with two sets of examples.

First, even in matters that are political or policy-laden in nature, the courts apply legal principles and standards to assess the legality and constitutionality of the acts in question. For example, in the case of Tan Seet Eng, the Court of Appeal was clear that even for matters of high policy, the courts can inquire into whether decisions are made within the scope of the relevant legal power or duty and arrived at in a legal manner.

A more recent example is the case of Tan Seng Kee, which involved challenges to the constitutionality of section 377A of the Penal Code, and required a consideration of the political compromise under which section 377A was to be retained but not proactively enforced. The Court of Appeal emphasised that the inherently political nature of this compromise did not preclude the existence or application of legal standards against which its legality or constitutionality could be judged. Accordingly, it considered the legal effect of the Attorney-General’s representations regarding the prosecutorial policy for such offences; and, even though that was sufficient to dispose of the case, went on to analyse the constitutionality of several aspects of section 377A with reference to established legal principles.

Second, the courts apply the law as it is, without fear or favour, even if this might lead to outcomes that may be difficult to reconcile with prevailing social norms and policies. An example of this is the case of UKM, where the appellant – a gay man – had applied to adopt his biological son who had been conceived through in vitro fertilisation and delivered by a surrogate mother in the United States. The court held that he should be allowed to adopt the child. While the court was cognisant of the public policy against the formation of same-sex family units, and gave this significant weight, this consideration was ultimately outweighed on the facts of that case by the statutory imperative to promote the welfare of the child as the first and paramount consideration. Although the court noted that it had reached this conclusion with “not insignificant difficulty”, it underscored that it had reached its decision through an application of the law, as the court understood it to be, in the particular circumstances of the case.

The courts, therefore – guided by judicial courage – play an essential role in upholding and applying the law in our society. It is for this reason that it has been said that “the ultimate responsibility for maintaining a system which abides by the rule of law lies with the Judiciary”.

Judicial modesty

But there is another no less important aspect of the separation of powers, which is that it requires each branch of government to respect the constitutional prerogatives and the institutional space of the others. This calls for the courts to be guided by judicial modesty, grounded in the recognition that judicial power, too, has its legal and constitutional limits, and that the scope for judicial intervention is not limitless. In a constitutional order where the Judiciary, the Legislature and the Executive are co-equal branches of government, where none is superior to any other and each has separate and distinct responsibilities, it is essential that both the courts and the public appreciate that there are polycentric social, economic and political questions that are sometimes not appropriately or effectively resolved through the judicial process.

This point bears emphasis. Some might wish to see the courts playing a more proactive role in spearheading change by taking a stand on contentious societal issues, particularly where such change is perceived to advance causes that may be viewed by some as progressive or desirable. But to expect this of the courts would, I suggest, be to fundamentally misunderstand the judicial function under our constitutional system. The courts are not front-runners for social change or architects of social policy, nor are they suitable fora for the continuation of politics by other means. To venture into such territory would not only be inconsistent with the courts’ adjudicative role, but would also imperil the courts’ legitimacy and the trust placed in them to decide each case fairly and impartially, in accordance with the law and in a principled way.

We had occasion to explain these points at some length in the case of Tan Seng Kee. Against the background of the socio-political controversy surrounding section 377A of the Penal Code and all that it was thought to symbolise, the Court of Appeal was careful to begin by clarifying the proper role of the court and the scope of the appeals that were before it. As the court made clear in its judgment, the appeals were not about the policy merits or socio-political desirability of section 377A, or about the moral worth of homosexual individuals, or about the immutability of sexual orientation. These extra-legal questions were beyond the remit of the courts, and indeed could not be resolved appropriately through the judicial process, with its focus on legal principles, rights and liabilities. Instead, the underlying disagreements of moral conscience at play would be better addressed through the political process, which is designed to allow for democratic debate over competing conceptions of the public good, and to devise pluralistic solutions capable of accommodating divergent interests and opinions.

Let me now elaborate on two categories of cases in which our courts have demonstrated judicial modesty: those involving matters of sentencing policy, and those involving what are referred to as unenumerated substantive rights.          

Sentencing policy

It is well established that Parliament prescribes, through legislation, the sentencing scheme for certain offences. This reflects the sentencing policy and the public interest considerations that Parliament seeks to give expression to. The courts then determine the appropriate sentence for each offender based on the facts of each case, in the light of the legislative scheme, and the Executive then carries out the sentence imposed.

This separation of powers means that the scope of the courts’ sentencing power is delimited by the legislative scheme laid down by Parliament. One area in which the legislative sentencing scheme has attracted some controversy is the imposition of the mandatory death penalty for trafficking in certain quantities of drugs. While it is unquestionably for the courts to determine whether there is sufficient legal and factual basis for the death penalty to be applied in each case, the questions of sentencing policy underpinning this legislative scheme fall outside the remit of the courts. Thus, in 1980, the Privy Council emphasised that in ruling on the constitutionality of the appellant’s mandatory death sentence, it was not concerned with arguments for or against capital punishment; and more recently, the Court of Appeal rejected the argument that the mandatory death penalty had only a limited deterrent effect on drug couriers, observing that it was not within its purview to determine the efficacy of the mandatory death penalty as a deterrent against drug trafficking. Instead, this is a question of policy for Parliament. More broadly, questions of the suitability of the mandatory death penalty as a form of punishment for serious criminal offences, and whether the existing legislation should be modified or repealed, are policy issues for Parliament to determine. This means that, no matter how passionately one may hold views against the death penalty, the proper recourse is to seek change through the legislative process, and not through the courts.

This does not mean that our courts do not take a robust approach to reviewing whether the substantive conditions for the imposition of the death penalty (as prescribed by law) are met, and whether the proper procedures for carrying out the death penalty have been followed. For example, in 2020, the Court of Appeal allowed a prisoner awaiting capital punishment to commence judicial review proceedings on the ground that the scheduling of his execution, ahead of other prisoners awaiting capital punishment who had been sentenced to death before him, disclosed a prima facie case of reasonable suspicion that his right to equality under Article 12 of the Constitution might have been breached. The court emphasised that it was not dictating the considerations that the State had to take into account when scheduling executions, which was – under the statutory scheme – an executive rather than a judicial function. But its decision sought to ensure that the State applied its own criteria consistently in the scheduling of executions, departing from its stated baseline only when there were legitimate reasons for doing so.

The courts’ approach to matters of sentencing thus shines light on the important lines that must be drawn between the proper territory of the courts and that of the Legislature and the Executive. In exercising their judicial power, the courts are mindful of the limits of their adjudicative role, while remaining firmly committed to their duty to ensure the constitutionality and legality of exercises of legislative and executive power.          

Unenumerated substantive rights

I come to the second category of cases in which our courts have demonstrated judicial modesty: those where they have refused to read unenumerated substantive rights into our Constitution. By this, I mean rights that cannot be found in the text of the Constitution, whether expressly or by necessary implication.

As I mentioned near the start of my address, the Constitution expressly enshrines certain fundamental rights and liberties, such as life and personal liberty, equality before the law, and freedom of speech and expression. There are also rights that, while not expressly stated, can be found in the Constitution either by construing it in its context or entirety, or as a matter of necessary implication in the light of the Constitution’s other express provisions – and one example of this is the right to vote. But where a right cannot be found in the Constitution in these ways, the courts do not have the power effectively to create such rights out of nothing. To do so would entail judges sitting as a “super-legislature” and enacting their personal views and preferences of what may be just and desirable into law. This would not only be undemocratic; it would also be antithetical to the rule of law.

This is aptly illustrated by the approach of our courts to Article 9 of the Constitution, which provides that “[n]o person shall be deprived of his life or personal liberty save in accordance with law”. In the context of a challenge to the constitutionality of caning, the Court of Appeal held that even assuming for the sake of argument that caning was viewed as a form of inhuman punishment, a Constitutional prohibition against the imposition of caning after conviction pursuant to a fair trial could not be founded simply on a general invocation of “principles of natural law”, which was the argument that was presented. And more recently, in Tan Seng Kee, the Court of Appeal held that the right to express one’s sexual identity could not be read into Article 9 of the Constitution. ­­­

This approach may be contrasted with the approaches that have from time to time been adopted elsewhere, sometimes with far-reaching and disruptive consequences. We need look no further than the development of US law on the right to an abortion, from the well-known decision of the US Supreme Court in Roe v Wade in 1973 to its subsequent decision to overrule and reverse that decision in Dobbs v Jackson Women’s Health Organisation last year.

In Roe, a majority of the court held that the “Due Process Clause” in the Fourteenth Amendment to the US Constitution contained a “right to privacy” that protected a pregnant woman’s right to choose whether to have an abortion. While this might have appeared to be a victory for pro-choice advocates, Justice Ruth Bader Ginsburg, writing extra-judicially, observed that there had been a trend in the states towards the liberalisation of abortion statutes at the time of the court’s decision in Roe, such that the political processes had been moving – albeit not swiftly enough for some – towards change. But by venturing as far as it did, Roe appeared to have provoked rather than resolved conflict, by catalysing the mobilisation of the right-to-life movement and a resultant reaction in Congress and state legislatures.

These concerns were borne out in the years that followed. And after half a century of socio-political contestation, the US Supreme Court in Dobbs overruled Roe and held that the Fourteenth Amendment did not protect the right to an abortion. Justice Samuel Alito, delivering the majority’s opinion, warned that judges had to be careful not to confuse what the Fourteenth Amendment protected with their own views about the liberty that Americans should enjoy. The right to an abortion was held to have no basis in the text of the Constitution, nor was it a right that could be said to be so deeply rooted in America’s history and tradition that it could be implied. It followed that the courts could not substitute their beliefs for the judgment of legislative bodies that sought to regulate abortion for legitimate reasons. Roe and the decisions that followed it had, in Justice Alito’s view, arrogated that power from the people and their democratically elected representatives.

All this bears out the Court of Appeal’s observations in Tan Seng Kee that there are consequences to removing issues of profound public and moral significance from the political realm into the judicial sphere – not least that it short-circuits the process of democratic change, and leads to the polarisation of societal discourse and debate.

Similar concerns were expressed in the opinions of the dissenting Justices of the US Supreme Court in Obergefell v Hodges. The majority of the court in Obergefell held that the Fourteenth Amendment required states to license and recognise same-sex marriages that had been lawfully performed in another state, reasoning that the fundamental liberties protected by the Fourteenth Amendment extended to certain personal choices that were thought to be central to individual dignity and autonomy, and that the fundamental right to marry could be exercised by same-sex couples no less than by opposite-sex couples. The dissenting Justices, however, expressed serious reservations about this reasoning. Justice Alito observed that the question was not what the states should do about same-sex marriage, but whether the Constitution answered that question for them. In his view, the Constitution left that question to be decided by the people of each state.

These cases illuminate not just the value of judicial modesty, but indeed its constitutional and institutional necessity. It is the Legislature that has been entrusted with the democratic mandate and legitimacy, as the people’s elected representatives, to forge a consensus on the difficult moral and social issues that will inevitably arise in a mature polity. It is also the Legislature that institutionally is equipped to consider the different views that may be held on socio-political issues attracting legitimate disagreement. Judicial modesty and self-restraint in the face of these considerations should therefore not be mistaken for judicial apathy. On the contrary, they reflect the courts’ understanding of their proper place in a democratic constitutional order, and a commitment to exercising neither “force” nor “will” in these delicate matters – only impartial judgment, grounded in legal principles.

This brings me back to the adjudicative role of the courts. The courts’ role is to say what the law is, and to apply that law to the facts of each case that comes before them – not according to what particular stakeholders or interest groups in society might want the law to be, or in accordance with the judges’ personal inclinations. It is critical to the integrity and legitimacy of the Judiciary that the judicial power to interpret and apply the law be wielded responsibly, impartially and in a principled way in each case. Indeed, it is precisely because the courts do not wade into areas of social and political controversy that they can continue to serve as a key stabilising force in society, by maintaining widespread public acceptance of their status as the legal arbiters and umpires of society, and public confidence in the rule of law rather than the rule of the courts is what we should be striving for. After all, judges and courts are equally servient to the law, as any other entity. This also recognises that courts do not work alone in safeguarding our society – instead, the different branches of the government are partners in the shared endeavour to advance society’s best interests.

The systemic role of the courts

At the same time, the changing world that we find ourselves in today has prompted an evolution in our understanding of the Judiciary’s role. This is the second kind of role that the courts play in safeguarding society, beyond their traditional adjudicative role, and that is their increasingly important systemic role as institutions charged with the responsibility of administering our system of justice. This broader conception of the courts’ role flows from the recognition that their true mission as a court is to ensure the fair and efficient administration of justice. The adjudication of discrete disputes is thus a part, albeit a very important part, of the much larger picture of how our legal system delivers justice to its users.

This evolution is, I suggest, a critical component of our efforts to safeguard public trust in our justice system and in the rule of law. These efforts take on particular importance and urgency in the light of the global challenges that societies and justice systems around the world face today, which come together to form what can be characterised as a “perfect long storm”, to borrow the words of our President in a slightly different context. I highlight three of these challenges: socio-economic inequality, “truth decay”, and the decline in trust in public institutions.

A perfect long storm

Socio-economic inequality

Let me begin with socio-economic inequality. Rising inequality has been an area of global concern for some years now, and this troubling trend has been exacerbated by the COVID-19 pandemic: a report published by Oxfam earlier this year noted that the richest 1% had captured nearly two-thirds of all the new wealth generated since the start of the pandemic.(62) If socio-economic inequality continues to worsen, it will exacerbate the polarisation of public discourse and the marginalisation and disaffection of those left behind.

For the reasons I outlined earlier, the courts do not have the mandate to tackle complex social issues like inequality head-on. Nonetheless, as the institution responsible for the administration of justice, the Judiciary has a legitimate – and, I suggest, essential – role to play in helping to stabilise society by promoting the goal of access to justice in whatever way it can. The courts must therefore take steps to ensure that, as far as possible, would-be litigants are not shut out of the justice system on account of the cost and other obstacles faced in navigating the justice system. This policy imperative to ensure access to justice does not detract from the courts’ adjudicative role that I have spoken about, but instead complements that role. Even the best justice system, with the most skilled and principled adjudicators, will be worthless if it is inaccessible to those who wish to have recourse to the courts to resolve their legal problems.

Truth decay

Turning to the second of the challenges, this is the phenomenon that has been labelled “truth decay”. This refers to the proliferation of disinformation and the devaluation of truth in public discourse, and this is something that the world has witnessed to a growing extent in recent years. Truth decay has been characterised by a set of four related trends: first, an increasing tendency to disagree over facts; second, a blurring of the line between opinion and fact; third, an increase in the relative volume and influence of opinion and personal experience over fact; and finally, lowered trust in formerly respected sources of factual information.

To be sure, this phenomenon affects virtually all aspects of societal life. But it is a particularly pernicious threat to the rule of law, which – at its most basic level – must be rooted in the pursuit of truth in order to achieve justice. Truth is the foundation upon which the courts do their work, and it is essential that the findings of the courts are accepted in the public sphere as generally reflecting the truth. It would be deeply damaging to the legitimacy of the courts for baseless and unfair allegations to be made against judges in the discharge of their duties, such as accusations that their rulings merely reflect their personal preferences. This problem is exacerbated by the sheer speed at which falsehoods can gain widespread traction: as the saying goes, “a lie can travel halfway around the world while the truth is still putting on its shoes”. In these circumstances, it is especially important for the courts not only to emphasise the sanctity of truth within the courtroom, but also to enlarge their efforts to educate the public at large about court processes and judicial decisions.

Decline in trust in public institutions

The third challenge, related to the previous two, is the broader and more fundamental decline in trust in public institutions. The 2022 Edelman Trust Barometer found that distrust had become “society’s default emotion”, and the 2023 Edelman Trust Barometer reported that, globally, government was less trusted than business. This underscores the point that societies today are experiencing a serious deficit of trust.

This is a corrosive reality to which the courts are not immune, and it strikes at the heart of the discharge of our judicial responsibilities because the legitimacy of the courts rests upon the broad acceptance that courts are reliable truth-seekers and truth-finders who can be trusted to dispense justice according to law and to ensure the legality of the actions of other public institutions. If this trust falls away, so too will trust in our justice system as a whole and then in the rule of law in our society. It is therefore imperative for the Judiciary to secure and maintain public trust in the courts.      

A paradigm shift

  Amidst these serious challenges, I suggest that our paradigms of justice will need to shift. It will be increasingly important for the courts to look beyond a narrow conception of their role that is focused largely or exclusively on adjudication, and instead devote attention to developing systems and institutions that can deliver and excel in the administration of justice. Our Judiciary is working to discharge this systemic role by building a user-centric court system that meets the needs of the public and strives to advance access to justice.

Part of this endeavour must involve assisting court users in understanding and navigating the justice system. I refer to this as the courts’ “assistive responsibility” towards our users. But another important element will be public communications and outreach, to spread awareness of the work that our courts do, how we do it, why we do it, and what the limits are of what we do. More fundamentally, this endeavour will also require the courts to reimagine how traditional adversarial processes might be adapted to better suit the needs of court users in particular contexts.                

The courts’ assistive responsibility towards their users

      Let me deal first with the courts’ assistive responsibility towards their users, and in particular I am speaking about lay users or self-represented persons. Such court users are an increasingly important reality for judiciaries around the world, yet they face significant barriers to accessing justice because legal and judicial systems have traditionally been designed with lawyers and judges in mind.

One way in which our courts have sought to discharge this assistive responsibility is by implementing simplified court processes, to try to reduce the friction encountered by laypersons in commencing claims or defending proceedings in court. Since 2014, a simplified process has applied to proceedings in the Magistrate’s Courts and the District Courts. This has been driven by the recognition of the disincentive that the disproportionate cost of litigation may pose for claimants pursuing smaller claims. And, in 2022, the Rules of Court 2021 introduced a far-reaching set of civil procedure reforms, with the express aim of achieving ideals like fair access to justice and fair and practical results suited to the needs of the parties.The new Rules are intended to make court processes easier to understand and navigate, such as by replacing legal jargon with language that is more familiar to ordinary people, and reorganising key provisions of the Rules in more intuitive way.

In addition, our courts have made significant efforts to address the asymmetries in information that laypersons may face, by providing legal information through guides such as the State Courts’ Guidebook for Accused in Person and the self-help procedural guides for civil, family and criminal proceedings that are published on the Singapore Courts’ website.

Our courts have also harnessed technology to provide practical assistance to lay court users. For example, the Community Justice Centre’s Automated Court Documents Assembly tool can help users prepare documents for bankruptcy applications and criminal mitigation pleas, while the Family Justice Courts’ Divorce and Probate eServices can be used to generate court papers that are needed to apply for a divorce or for a Grant of Probate in certain cases. The Judiciary is also exploring the use of generative artificial intelligence to advance our mission of access to justice. Meanwhile, those who are less comfortable with technology can still avail themselves of service centres such as our Supreme Court’s one-stop Service Hub, which consolidates the touchpoints for commonly used services in a single location.)

We also established the Access to Justice (or “A2J”) Programme Office earlier this year to drive our transformation into a more outward-facing and user-centric institution, with a committed focus on securing access to justice. Among other projects, the A2J Programme Office has conducted user testing and will be launching a beta version of a step-by-step Digital Guided Questionnaire that can help users locate relevant information on the Singapore Courts’ website based on the key features of the situation they find themselves in. And there will undoubtedly be more developments on the horizon as we undertake the significant – and critically important – endeavour of furthering access to justice.                

Public communications and outreach

Second, our courts are working on improving public communications and outreach to promote awareness of what we do. For example, our Supreme Court publishes case summaries of significant decisions on its website (84) and social media channels, and works with other stakeholders to organise events that enable us to engage with a wider audience. This series of “Conversations with the Community” is an important part of that effort. It is hoped that these efforts will help to dispel myths and foster a better understanding of the work of our courts.

Reimagining traditional adversarial processes

Third, and more fundamentally, the courts will need to reconsider the appropriateness of traditional adversarial processes and reimagine what justice might look like in certain contexts. To this end, we have developed procedural norms that have shifted the culture of litigation, such as in our family justice system where therapeutic justice has been adopted as the overarching philosophy. Therapeutic justice is a conception of the law as a method of resolving family disputes that recognises that justice in this context must seek to help the parties to repair their broken relationships and look towards the future, rather than facilitating an adversarial mindset that is focused on winning and losing and settling old scores in a way that may engender further acrimony. This has required the ordinary tools and processes of litigation to be modified to meet the particular needs of family litigants. More generally, we have encouraged the use of alternative dispute resolution mechanisms such as mediation, which help to focus the parties’ attention on their shared interests and on the way forward, instead of on a zero-sum allocation of fault for past hurts and wrongs. Mediation is also more accessible to laypersons because it does not require them to frame their issues in terms of legal arguments, but instead encourages them to articulate their interests and their concerns.

It will be apparent from what I have said that embracing and discharging the courts’ systemic role, as the institution responsible for administering our system of justice, will be a massive undertaking. But this dimension of our role is one that we must be firmly committed to.

Conclusion

Let me conclude by returning to Hamilton’s words, with which I began this address. The role of the courts has long been, and will continue to be, to exercise “judgment” – as opposed to “force” or “will” – by interpreting and applying the law in a fair and principled way in each case that comes before them. This adjudicative role enables the courts to uphold the rule of law and serve as an important stabilising force in our society. But our role cannot be limited to a purely adjudicative setting. To effectively navigate the challenges that confront our societies, the courts – as the custodians and principal operators of our justice systems– have a special responsibility for protecting the core values of those systems and ensuring that robust mechanisms are in place for the delivery of justice to all. It is in doing this effectively that we will be able to secure and maintain public trust in the systems that have been established for the orderly resolution of disputes and, more generally, to uphold public confidence in the rule of law. And this, I suggest, is the most important way in which our courts can safeguard our society.

Thank you very much.

See also

• Archive of Court of Appeal judgment in Tan Seng Kee v AG and other appeals, 28 February 2022
• Section 377A of the Penal Code (Singapore)

References

• https://www.mha.gov.sg/mediaroom/speeches/panel-discussion-on-tan-seng-kee-v-ag-and-section-377a-of-the-penal-code/
• https://www.humandignitytrust.org/wp-content/uploads/2022/07/Tan-Seng-Kee-case-digest.-indd.pdf
• https://smulexicon.com/2022/05/27/the-endgame-of-section-377a-litigation-case-note-on-tan-seng-kee-v-attorney-general-2022-sgca-16/
• https://ohrh.law.ox.ac.uk/lgbtq-rights-as-administrative-law-tang-seng-kee-v-attorney-general/
• https://blog-iacl-aidc.org/new-blog-3/2022/4/12/singapores-law-banning-gross-indecency-between-men-all-but-gone
• https://journalsonline.academypublishing.org.sg/e-First/Singapore-Academy-of-Law-Annual-Review-of-Singapore-Cases/ctl/eFirstPDFPage/mid/570/ArticleId/1429?Citation=Published+on+e-First+20+April+2023
• https://journalsonline.academypublishing.org.sg/Journals/Singapore-Academy-of-Law-Journal/e-Archive/ctl/eFirstSALPDFJournalView/mid/495/ArticleId/1777/Citation/JournalsOnlinePDF
• http://law.nus.edu.sg/sjls/wp-content/uploads/sites/14/2023/06/SJLS-Mar-23-83.pdf
• https://www.eventnook.com/event/u72392
• https://www.agc.gov.sg/docs/default-source/newsroom-doucments/speeches/oly2023-speech-by-the-attorney-general-lucien-wong-sc.pdf
• https://www.channelnewsasia.com/singapore/section-377a-successful-court-challenge-possible-if-not-repealed-law-society-forum-2965941
• https://petir.sg/2022/11/29/the-right-responsible-thing-to-do-k-shanmugam-on-repealing-s377a/
• https://www.studocu.com/my/document/universiti-teknologi-mara/philosophy-and-current-issues/tan-seng-kee-case-law/54070317
• https://icj2.wpenginepowered.com/wp-content/uploads/2022/11/Singapore-377A-Repeal-and-Constitutional-Amendments-Legal-Analysis-Final.pdf
• https://adminlawblogorg.wordpress.com/2022/10/18/kenny-chng-an-innovative-invocation-of-substantive-legitimate-expectations-in-singapore/
• https://petir.sg/2022/11/29/the-right-responsible-thing-to-do-k-shanmugam-on-repealing-s377a/
• https://www.straitstimes.com/singapore/politics/real-risk-of-courts-striking-down-section-377a-in-future-if-law-is-not-repealed-panel
• https://www.judiciary.gov.sg/news-and-resources/news/news-details/conversations-with-the-community-21st-september-2023

Acknowledgements

This article was written by Roy Tan.