NDR 2022: A lookback at how Singapore's courts dealt with Section 377A and related challenges to the Constitution
A look at the various constitutional challenges that have been mounted against Section 377A in the courts here, dating back to 2010.
SINGAPORE — Prime Minister Lee Hsien Loong on Sunday (Aug 21) announced that Section 377A of the Penal Code, which criminalises sex between men, will be repealed but that the definition of marriage will be protected by the Constitution.
In his speech during the National Day Rally, Mr Lee said that this would prevent the definition of marriage — between a man and a woman — from being challenged in the courts on constitutional grounds, just like Section 377A has been challenged.
Judges are meant to interpret and apply the law, not "settle political questions" or "rule on social norms and values", he added.
TODAY looks at the various constitutional challenges that have been mounted against Section 377A in the courts here, dating back to 2010.
They were all dismissed by either the High Court or the Court of Appeal.
In its latest ruling earlier this year, the apex court said that Section 377A was unenforceable in its entirety and posed no threat of prosecution.
All of the challenges were built on Article 12 of the Singapore Constitution, which guarantees everyone equality before the law and equal protection of the law.
Some were also based on Article 9, which states that no one shall be deprived of his life or personal liberty save in accordance with the law — as well as Article 14, which guarantees Singapore citizens the right to freedom of speech and expression.
Mr Tan Eng Hong files the first challenge seeking to declare Section 377A unconstitutional. This comes after he was charged under the provision.
He was caught engaging in a sex act with another consenting male in a locked cubicle in a public toilet.
High Court judge Lai Siu Chiu throws out Mr Tan’s case, finding that there is “no real controversy” for the court to process. Mr Tan appeals against the decision.
The Court of Appeal rules that Mr Tan’s case should be heard again in the High Court because Section 377A affects the lives of many in a “very real and intimate way”.
A gay couple of 15 years, Mr Lim Meng Suang and Mr Kenneth Chee, put in the second constitutional challenge.
High Court judge Quentin Loh dismisses Mr Lim and Mr Chee’s case. He holds that Section 377A is not inconsistent with Article 12 of the Constitution, which guarantees everyone equality before the law and equal protection of the law.
In his second judgement on the issue, Justice Loh also throws out Mr Tan’s case, saying that he has not changed his views from before. He writes that Parliament should be the one to change the law because the issue is one of “morality and societal values”.
The Court of Appeal issues a landmark ruling on Section 377A, while dismissing the three men’s appeals against both challenges.
Three apex court judges rule that the guarantee of equal protection under the law as enshrined in Article 12 of the Singapore Constitution touches only on issues relating to religion, race, place of birth and descent — not gender, sex and sexual orientation.
They also note the “vexing difficulty” in dealing with the emotional extra-legal considerations surrounding the topic, and emphasise that they can consider only the legal arguments.
International disc jockey and businessman Johnson Ong files a fresh constitutional challenge. He is spurred to do so when India’s Supreme Court strikes down Section 377 of its Penal Code, which criminalises consensual gay sex.
Mr Bryan Choong files another challenge. He is the former executive director of advocacy group Oogachaga that supports the lesbian, gay, bisexual and transgender community.
Retired general practitioner Tan Seng Kee, also known as Roy Tan, puts forth another challenge.
High Court judge See Kee Oon throws out all three challenges from Mr Ong, Mr Choong and Dr Tan Seng Kee, saying he is bound by the principles of legal precedent in the Court of Appeal’s 2014 judgement.
Justice See finds no conclusive scientific evidence to show that homosexuality is changing over time or that it is solely caused by biological factors, or both.
The judge also addresses an argument that Section 377A’s original purpose was to clamp down on male prostitution rather than discriminate against male homosexuals. He rules that the law was intended to safeguard morals and prosecute all forms of indecency between men, whether in public or private.
He adds that Section 377A cannot be said to be redundant simply because the Government has taken a stance that it will not seek to enforce the law. Parliament should be the one deciding if the law stays, Justice See says.
The three men then appeal against his decision.
Five apex court judges hear the appeals.
The Court of Appeal judges uphold Section 377A, agreeing that it is constitutional. However, they rule that it is not enforceable in its entirety in order to minimise “legal untidiness”.
This is unless and until the Attorney-General of the day provides clear notice that he, in his capacity as the Public Prosecutor:
- Intends to reassert his right to enforce Section 377A proactively by way of prosecution
- Will no longer abide by the representations made by Attorney-General Lucien Wong in 2018 as to the prosecutorial policy on sexual acts between two consenting adult men in private
The judges note that Mr Ong, Mr Choong and Dr Tan do not face any real and credible threat of prosecution under Section 377A at this time.
Chief Justice Sundaresh Menon stresses that any judicial ruling on Section 377A “ought to concern only its legality or constitutionality and cannot extend to the policy merits or socio-political desirability of retaining or repealing” it.
The judges also note that any discussion on the constitutionality of Section 377A cannot ignore a political compromise struck in Parliament in 2007 — when Parliament judged that it was undesirable to repeal it, but Prime Minister Lee Hsien Loong said that the Government would not proactively enforce it.