Attorney-General's Chambers on 377A challenges: Constitutional rights do not include sexual freedom or privacy

SINGAPORE — Lawyers representing the Government in three Section 377A challenges argued that an Indian court’s decision to lift a ban on consensual gay sex last September is irrelevant to Singapore as the two countries take vastly different approaches to constitutional interpretation and review.

Unlike the Indian courts — which recognise concepts such as “transformative constitutionalism”, the “progressive realisation of rights”, and the “doctrine of non-regression” — the Singapore courts do not view themselves as a driver of social change or transformation, lawyers from the Attorney-General's Chambers pointed out.

And as the Singapore Constitution currently stands, there is no “free-standing” right to sexual freedom or privacy, so it cannot be said that it is absurd and arbitrary to deprive homosexuals of their chosen form of sexual conduct, they added.

Also, concepts like privacy, human dignity and identity cannot be conferred the status of constitutional rights as they remain formless here versus “concrete rights” such as religion, free speech and freedom of movement, which are upheld with qualifications, within the context of larger interests such as public order and security, the state lawyers said.

“Unqualified rights inherently contradict a key tenet of our Constitution, which is that the interest of the larger community is placed over the interest of the individual,” they added.

The Constitution also calls it a violation only when laws discriminate against a citizen on grounds of religion, race, descent, or place of birth, they pointed out. The words “gender”, “sex” and “sexual orientation” are absent in this part of the Constitution, whereas the Indian Constitution expressly prohibits discrimination against any citizen on the grounds of sex, they added.

Renegotiating these areas is, anyway, out of the court’s reach, the state counsels stressed, as Parliament has the final say on the ambit of public order and morality.

“It is Parliament, and not the courts, that should decide the deeply divisive socio-political issue of whether Singapore should continue to criminalise male homosexual sex acts,” they said.

These are arguments made in the 124-page submissions prepared by Deputy Chief Counsel Hui Choon Kuen, Deputy Senior State Counsels Denise Wong and Jeremy Yeo and State Counsel Jamie Pang in the civil suits brought by three gay men to challenge the constitutionality of Section 377A of the Penal Code, which ostensibly criminalises gay sex.

They were set out before Justice See Kee Oon at the High Court earlier this week, after lawyers for the plaintiffs — disc jockey Johnson Ong Ming, 43, former Oogachaga executive director Bryan Choong, 42, and retired general practitioner Roy Tan Seng Kee, 61 — addressed the court. The hearings have been closed to the public.

ON THE OFFENSIVE AGAINST EX-CHIEF JUSTICE’S COMMENTS

The submissions, which were seen by TODAY on Thursday (Nov 21), also addressed the widely-discussed arguments of former chief justice Chan Sek Keong, although he is not an applicant. Mr Chan, a former attorney-general, released his analysis in a 72-page document last month, arguing that Section 377A is unconstitutional.

The state lawyers submitted that Mr Chan's argument, that the original purpose of Section 377A was "impliedly repealed" when Section 377 was repealed in 2007, does not hold water. Section 377 covered penetrative sex acts against the order of nature.

In that same Bill that Parliament passed in 2007, Section 376 was added to criminalise non-consensual penetrative sex with a sub-section dealing with male-on-male acts of this type.

“With all due respect, his argument is unconvincing,” the state counsels wrote. “It does not logically follow that just because a provision making non-consensual penetrative sex illegal is enacted, an earlier provision covering consensual penetrative sex is impliedly repealed.”

They went on to note that Parliament proceeded on the basis that Section 377A covered penetrative sex acts and, after a debate, decided to retain it as a reflection of social morality concerning male homosexual sex acts. “How can we find that Parliament implied a result completely opposite to the result that Parliament expressly came to?” they said.

DISAGREEING ON 377A’s NARROW PURPOSE TO FIGHT MALE PROSTITUTION

Mr Chan had also argued that the original purpose of Section 377A, when it was enacted in 1938, was meant to deal with a rising trend of male prostitution. This was a point advanced by Mr Choong’s lawyers as well, who backed their argument with newly declassified documents from the United Kingdom’s National Archives.

But the state counsels said Section 377A was listed under the heading “Unnatural Offences”, which suggests that its purpose was linked to the inherent quality of the acts it prohibits. Therefore, Section 377A should be seen to be for “general application”, and not that it was to serve a narrow purpose of combating male prostitution, they said.

Making mention of Mr Chan’s argument that Section 377A serves no legitimate purpose since the prevailing policy is to not proactively enforce it, they added: “Section 377A is fully able to serve its purpose, which is to send a certain moral signal, by its mere existence regardless of whether and how it is enforced.”

This is a “common-sense argument”, they said.

377A NOT AS ABSURD AS A LAW BANNING LEFTIES FROM USING ELEVATORS

As for Mr Ong’s arguments that Section 377A violates the Constitution as it is “absurd and arbitrary" to criminalise a person on the basis of his natural, unchangeable identity, the state counsels argue that a law can only be considered as such if it is regarded by “all reasonable persons as clearly absurd and arbitrary”.

While a law that bans left-handed people from using elevators might qualify as absurd and arbitrary, “clearly, a law that prohibits male homosexual sex acts, in private or public, is not one that all reasonable persons in Singapore would think was absurd and arbitrary”, they said.

Such an extremely high threshold is required to guard against judicial overreach and the collapse of the separation of powers between different organs of state, they added.

On Mr Ong’s argument that homosexuality is inborn and immutable, they argued that it is clear that all experts consulted by him and the Government agree that sexual orientation is the result of a complex interplay between biological and cultural factors.

While genetics may play some part in determining sexual orientation, it is not the sole cause, they said, further noting that the state of scientific knowledge has not significantly progressed since 2014, when Section 377A was last challenged before the courts.

They also argued that Section 377A is not to punish someone based on his mere existence, but targets homosexual sex acts. Even Mr Ong’s experts had acknowledged that a person experiencing homosexual attraction can voluntarily control whether to perform the act or not, they added.

APPLICANT'S POSITION ‘OUT OF COURT’S POWER’

Dr Tan’s lawyer M Ravi, meanwhile, argued that Section 377A is not consistent with parts of the Constitution addressing personal liberty, equal protection and freedom of speech, assembly and association, so it should be considered void by virtue of Article 162 of the Constitution.

Article 162 allows for modifications, adaptations, qualifications or exceptions to be made to laws if they are not consistent with the Constitution, but the state counsels’ claim is that Section 377A conforms with the Constitution.

“What the court does not have the power to do under Article 162 is to strike down the law, whether in whole or in part. The applicant (Dr Tan) is clearly asking the court to do something which it has no power to do,” they said.

The hearing of the three challenges is complete. The judge is expected to deliver rulings on these challenges sometime next year.