High Court judge dismisses 3 constitutional challenges to Section 377A

SINGAPORE — Three legal challenges seeking to strike down Section 377A of the Penal Code — which criminalises consensual sex between men — were dismissed on Monday (March 30) by a High Court judge.

The judge ruled that the High Court was bound by the principles of legal precedent by the nation’s highest court, the Court of Appeal, in its reasoning and conclusions in a case in 2014, which was the last time a challenge was mounted to the legal provision.

In passing the judgement on Monday in a hearing that was closed to the public, High Court judge See Kee Oon said: “The Court of Appeal’s finding on the scope of Section 377A was necessary in order to make out its finding as to the purpose of Section 377A.” A summary of the judge’s findings was released to the media after the hearing.

Justice See went on: “In any case, the court had reached the same conclusion that the Court of Appeal arrived at, even after taking into account the additional material put forth by the plaintiffs.”

Justice See added that Section 377A could not be said to be redundant simply because the Government had taken a stance that it would not seek to enforce the provision.

“Statutory provisions serve an important role in reflecting public sentiment and beliefs. Section 377A, in particular, serves the purpose of safeguarding public morality by showing societal moral disapproval of male homosexual acts,” he said.

The civil suits, which were heard last November, were brought by three gay men — disc jockey Johnson Ong Ming, 43, former executive director of advocacy group Oogachaga Bryan Choong, 42, and retired general practitioner Roy Tan Seng Kee, 61 — who challenged the constitutionality of Section 377A.

The cases were mounted following an Indian court’s decision to lift a ban on consensual gay sex in September 2018.

ARGUMENTS AND OUTCOME

Mr Ong’s lawyers — Mr Eugene Thuraisingam, Mr Suang Wijaya and Mr Johannes Hadi of law firm Eugene Thuraisingam LLP — had argued that Section 377A is “absurd, irrational and discriminatory” in criminalising the conduct of a person on the basis of his natural, unchangeable identity and for non-harmful private acts. They used expert evidence to present arguments that a person’s sexual orientation is innate and unchangeable.

But Justice See on Monday said there was no comprehensive scientific consensus that a person’s sexual orientation was biologically determined such that it is immutable.

Instead, the judge said scientific literature suggested that a person’s sexual orientation was determined by both genetic and environmental factors.

“The court is not the appropriate forum to seek a resolution of a scientific issue that remains controversial. This is in any event an extra-legal argument that does not come under the proper purview of the courts,” Justice See added.

Mr Choong’s lawyers — Mr Harpreet Nehal Singh, Mr Remy Choo Zheng Xi, Ms Priscilla Chia, Mr Wong Thai Yong and Mr Jordan Tan — urged the court to consider documents from the United Kingdom’s National Archives that were declassified between 2014 and 2016.

Using those, the lawyers argued that Section 377A’s original purpose was to stamp out male prostitution rather than discriminate against male homosexuals.

This was also an argument made by former chief justice and attorney-general Chan Sek Keong, who set the legal fraternity abuzz last October with a 72-page analysis arguing that Section 377A is unconstitutional.

To this, Justice See said that while the problem of male prostitution was “undoubtedly” the cause of much consternation among the British colonial administration, which tabled the law as part of an amendment bill in April 1938, there was no mention of male prostitution in any of the relevant legislative material.

“The fact that a precise legislative solution was not crafted to tackle the specific problem of male prostitution suggests that Section 377A was intended for broader application,” he said.

Dr Tan’s lawyer, Mr M Ravi of Carson Law Chambers, argued that it remains “impossible” for a gay or bisexual man here to predict when he may be investigated although the Government had stated that Section 377A will not be proactively enforced.

The element of uncertainty remained because a policeman can be penalised for not acting on an arrestable act, he added, relying on provisions under Section 424 of the Criminal Procedure Code and Section 119 of the Penal Code.

Justice See, however, said that the Government’s decision not to proactively enforce Section 377A did not mean that the law was absurd or arbitrary, and arguments on this decision ought to be considered in an application for “administrative review” rather than “constitutional review”.

“The manner in which a provision is enforced, even if arbitrary, cannot, without more, result in the provision itself being rendered constitutional,” he said.

Lawyers representing the Government had argued that the Indian court’s decision is irrelevant to Singapore as the two countries take vastly different approaches to constitutional interpretation and review.

Among other arguments, they noted that 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.

The team from the Attorney-General’s Chambers comprised Deputy Chief Counsel Hui Choon Kuen, Deputy Senior State Counsels Denise Wong and Jeremy Yeo, and State Counsel Jamie Pang.

LAWYER M RAVI CRITICAL OF OUTCOME

Speaking to TODAY after Monday’s judgement, Mr Ravi criticised the outcome of the case in light of the fact that the three challenges were mounted against the backdrop of “international momentum” in striking out what he characterised as “archaic” legislation.

Besides Mr Chan, those who contributed to the momentum included Ministry of Foreign Affairs Ambassador-at-Large Tommy Koh who openly encouraged the gay community in Singapore to bring a class action challenging Section 377A’s constitutionality, he pointed out.

“Most Commonwealth countries are already doing this. So, coming at this stage… the decision is astounding and shocking to the conscience,” said Mr Ravi.

He said his next step would be to study the prospects of an appeal, which could take the matter to the Court of Appeal if allowed to do so.

Mr Ong and Mr Choong’s lawyers told TODAY their clients intend to appeal against the High Court’s decision.

Reacting to the news, lesbian, gay, bisexual, transgender and queer (LGBTQ) rights advocacy group Pink Dot Singapore expressed disappointment and said the ruling “effectively upholds, entrenches and continues the discrimination of a minority group”.

“The colonial-era law, which criminalises consensual sex between men, has long been weaponised against sexual minorities,” it said in its statement that was posted on Facebook.

“Through its trickle-down effects, Section 377A has been used to justify the discriminatory treatment of LGBTQ+ Singaporeans in areas such as housing and immigration. It has also rendered the community invisible in areas like the media, the workplace and education.

“While the repeal of Section 377A would not have been a panacea for all of these problems, it would have been a milestone — a significant step towards building a more equal and inclusive society.”