Govt’s decision to not enforce 377A still ‘unsettling’ because it’s not binding on future Attorneys-General: Senior Counsel

• Three legal challenges against Section 377A were heard before the Court of Appeal 
• Senior Counsel Harpreet Singh Nehal argued that future Attorneys-General may enforce the law criminalising gay sex
• This is thus still “unsettling” for members of the gay community
• A judge asked if successive governments would be bound to the position of the present Government, which had stated that it would not proactively enforce Section 377A
• AGC said that this matter has to be decided not in court but in Parliament

SINGAPORE — Prime Minister Lee Hsien Loong may have said in 2007 that the Government would not proactively enforce Section 377A of the Penal Code, which forbids consensual sex between men, but it does not preclude such cases from being taken before the court anyway, Senior Counsel Harpreet Singh Nehal said. 

Speaking on Monday (Jan 25) during the hearing of three legal challenges to Section 377A before five Court of Appeal judges, he said that this is because the public prosecutor’s exercise of prosecutorial discretion is unfettered, as Attorney-General Lucien Wong had said so himself.

Mr Singh was representing Mr Bryan Choong, 43, former executive director of non-profit Oogachaga, which works with lesbian, gay, bisexual, transgender and queer individuals. 

Mr Choong moved to challenge the constitutionality of Section 377A alongside disc jockey Johnson Ong Ming, 44, and retired general practitioner Roy Tan Seng Kee, 62, following an Indian court’s decision to lift a ban on consensual gay sex in September 2018.

In Oct 2, 2018, Attorney-General Wong clarified in a statement that the Government has not removed or restricted prosecutorial discretion for Section 377A, and that the public prosecutor retains full prosecutorial discretion. 

Mr Wong did say then that it would not be in the public interest to prosecute based on the conduct of two consenting adults in a private place.

However, Mr Singh argued that the present Attorney-General cannot bind those in a similar position in future.

“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 said.

He added that it is thus “unsettling” for members of the gay community because there is 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.

An appropriate legal remedy would be to remove from Section 377A the words “in private”, he suggested.

“At least, (that will be) entirely consistent with the bargain struck in 2007.”

In March last year, a High Court judge dismissed the three legal challenges against this provision of the Penal Code, saying that it was bound by the principles of legal precedent by the Court of Appeal in its reasoning and conclusions in 2014, which was the last time Section 377A was challenged.

Chief Justice Sundaresh Menon and Judges of Appeal Andrew Phang, Judith Prakash, Steven Chong and Tay Yong Kwang presided over the appeals on Monday and reserved their judgement after a hearing that stretched over more than four hours.

WHAT IF THERE’S A CHANGE OF GOVERNMENT

Ms Kristy Tan, senior director of the advocacy group of the Attorney-General Chambers (AGC), represented AGC in making oral submissions during the session. 

At one point, Justice Prakash asked Ms Tan whether successive governments would be bound to the position of the present Government, which had stated that it would not proactively enforce Section 377A. 

“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,” the judge asked.

Ms Tan said that if successive governments were to take on a different position, a resurrected challenge can 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 by the answer. “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,” she said.

WHY TARGET HOMOSEXUALS

Mr Eugene Thuraisingam, who represented Mr Ong, said that he aligns with Mr Singh’s arguments, pointing out that the court should consider bringing to criminal law a certainty in the foreseeable future as to whether there are risks of a person being prosecuted.

“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?” he said.

He also argued that it is absurd to criminalise one particular sexual orientation when expert scientific evidence shows that sexual orientation cannot be wilfully changed and it is not caused or influenced by social factors.

Mr Thuraisingam also raised a technical legal argument, pointing out that the arbitrariness of Section 377A is amplified by the fact that it targets male homosexual conduct specifically, when the available evidence — including the 2007 legislative debates — indicate that its intent was to advance an alleged social morality against homosexual conduct generally. 

‘AS ABSURD AS A BAN ON LEFT-HANDED PEOPLE’

Representing Dr Tan was lawyer M Ravi who tried to refute a point in 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.

Mr Ravi said: “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, Mr 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.”

APPEALING ON SAME ARGUMENTS

AGC said that the appellants tried 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.

It added that the issue of whether Singapore should repeal Section 377A or leave it to the statute books is a socio-political one — that society here is strongly polarised in its views, with the majority supporting the retention of Section 377A.

“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,” AGC said.

“It is squarely a decision for Parliament, comprising the elected representatives of the people, to determine on behalf of Singaporean society.”