Section 377A doesn't criminalise gay sex and its purpose no longer exists, argues former chief justice

SINGAPORE — A former Singapore chief justice has argued that Section 377A of the Penal Code, which is often referred to as the law that criminalises gay sex, does not actually cover this offence at all.

Writing in a 72-page article in the Singapore Academy of Law Journal, Mr Chan Sek Keong said: "Section 377A was enacted for the purpose of dealing with the mischief of male prostitution and its associated activities (which involved male homosexual conduct) which were rife in 1938, and not because homosexual conduct was not acceptable in Singapore society in 1938."

Section 377A does not criminalise penetrative sex, only non-penetrative sex acts of a grossly indecent nature such as masturbation and other kinds of sexual touching and "lewd" acts, Mr Chan added.

He also argued that the purpose of the law had ceased to exist in 2007 when Parliament passed a Bill to amend the Penal Code. 

The article, titled Equal Justice under the Constitution and Section 377A of the Penal Code, was published in the online journal on Monday (Oct 14) 

In response to TODAY's queries, the Ministry of Law and the Ministry of Home Affairs said that they are aware of Mr Chan's article, but because “there are challenges to the constitutionality of Section 377A before the courts, it would be inappropriate to comment on Mr Chan’s analysis at this juncture".

Three court challenges against Section 377A are set to be heard next month. The cases were filed by Dr Roy Tan, a retired general practitioner and former Pink Dot organiser, as well as deejay Johnson Ong Ming and Mr Bryan Choong, former executive director of non-profit organisation Oogachaga.

Mr Chan was once described by Law Minister K Shanmugam as “one of our greatest jurists and legal minds” and served as Singapore’s highest-ranking judge from 2006 to 2012. He was also a former attorney-general.  

Mr Chan's article came about a year after veteran diplomat Tommy Koh called Section 377A an "antiquated law" which should be repealed. 

In recent years, other prominent figures including former attorney-generals Walter Woon and V K Rajah have also pointed out that Section 377A poses a constitutional problem given the Government’s position on the law. 

The Government has stated that the authorities will not proactively enforce 377A. However, the Attorney-General’s Chambers has previously made clear that the public prosecutor’s exercise of prosecutorial discretion “has always been, and remains, unfettered”. 

MR CHAN'S MAIN POINTS

• Section 377A of the Penal Code states that any male person who, in public or private, commits, aids or enables a male to commit any act of gross indecency with another male could face a two-year jail term.

• The Constitution states that all persons are equal before the law and entitled to the equal protection of the law.

• Section 377A was created in 1938 to deal with the problems of public male prostitution which were rife then, not because homosexual behaviour was seen as unacceptable.

• Since Section 377A penalises acts of gross indecency between males, but not between males and females or between females, would such unequal treatment violate the fundamental rights of all persons to equality before the law, and equal protection of the law under the Constitution?

• Mr Chan pointed out that unless it is repealed in Parliament, Section 377A cannot be made to become void since it existed before the Constitution was enacted.

• He suggested one way for it to exist today: As “a gender-neutral law that criminalises non-penetrative sex of gross indecency committed in public”.

ORIGINS OF SECTION 377A 

A key part of Mr Chan’s arguments are based on the historical basis of the law, which stretches beyond Section 377A’s enactment in 1938.

Before 1938, there were already two laws that criminalised indecent conduct, including Section 377 of the Penal Code, which sets the scope for Section 377A, Mr Chan said. 

Section 377 would later be repealed in 2007. It criminalised “carnal intercourse” — including penetrative sex acts — that are against the order of nature with any man, woman or animal.

Another provision, Section 23 of the Minor Offences Ordinance, penalised soliciting or committing any “indecent behaviour” in a public place.

Singapore, which was still a British colony in 1938, had to respond to the social problem of prostitution, especially vice activities involving males in certain parts of the island. This was shown in crime reports at the time, Mr Chan said.

He argued that Section 377A was brought about to deal with the male prostitution problem due to the limitations of Section 23, which could only be invoked if the sexual act was done in public, and even then, could only dole out a low punishment.

He then pointed out that Section 377A criminalises acts of gross indecency between males “which do not amount to an unnatural offence under Section 377”, adding that there was an explanatory note at the time making clear that there would be no overlap.

Since unnatural offences under Section 377 covered penetrative sex, therefore, such offences would not be punishable under Section 377A, even though they might be the “most serious kinds of acts of gross indecency”.

“No legislative purpose would have been served by enacting in Section 377A offences already punishable under Section 377 with far heavier punishments,” Mr Chan wrote.

Citing past cases, he concluded that Section 377A covers non-penetrative sex of a grossly indecent nature, such as the touching of private parts or oral sex, and there should be no overlap with Section 377, which dealt with penetrative sex.

HOW 2007 AMENDMENT BILL ‘REPEALED’ 377A

In 2007, the Government moved a Bill to amend the Penal Code, which would include a repeal of Section 377, though Section 377A was not affected.

Members of Parliament (MPs) at the time either spoke out to repeal Section 377A as well or to retain it.

“The Government’s position was to retain the law (Section 377A) for the time being, but not enforce it, except as otherwise expressed,” Mr Chan said.

Then, in a line of argument that has not been talked about so far, Mr Chan said that this was problematic as Parliament had repealed Section 377 “in the mistaken belief that penetrative sex was punishable under Section 377A”.

When the Bill passed, Section 377 was repealed and new provisions were introduced, including Section 376 to cover sexual assault by penetration without consent.

In essence, what this meant was that consensual penetrative sex, whether between same-sex or opposite-sex couples, is no longer an unnatural offence — unless it is done in public, as provided under Section 20 of the Miscellaneous Offences (Public Order and Nuisance) and Section 294A of the Penal Code. 

While the new provisions had no effect on Section 377A, “it would have the effect of impliedly repealing Section 377A if Section 377A did cover penetrative sex, to the extent of the inconsistency”, he wrote.

WHAT PAST CASES SHOWED

After the 2007 Bill was passed, there were three court proceedings that involved Section 377A.

Mr Chan wrote: “It would appear that Section 376(1) or its legislative effect also escaped the attention of (the defence) counsel and the courts in the three proceedings, since there is no discussion of these issues in the judgements.”

These three cases were:

• The Court of Appeal decision in Tan Eng Hong v Attorney-General case

• The High Court decision in the Lim Meng Suang and Tan Eng Hong cases

• The Court of Appeal decision in the Lim Meng Suang case

In these cases, the judges found that Parliament, as well as the pre-independence Legislative Council, had intended for Section 377A to criminalise gay sexual conduct, and that Parliament had decided to retain this legislative effect in 2007 by keeping Section 377A and repealing Section 377.

But Mr Chan said it is arguable that these three decisions had been given “per incuriam” or through the lack of care.

Thus, they cannot be binding on future prosecutions for penetrative and non-penetrative sex under Section 377A, the former chief justice said.

The judges should not have found that Parliament had endorsed criminalising gay sex just because it kept Section 377A in 2007, Mr Chan said.

The parliamentary speeches at the time did not support a finding that the majority of the MPs endorsed the purpose of Section 377A in 2007, and even if they did endorse it, they would have done so on the mistaken basis that Section 377A covered penetrative sex.

“No one knows what the MPs would have said or decided if they had known that Section 377A criminalises only non-penetrative sex of a grossly indecent nature, such as masturbation and other forms of sexual touching,” he added.

There was also insufficient evidence to show that Singapore society disapproved of private gay conduct to the extent that the state should continue to criminalise it.

The original purpose of Section 377A — to eliminate the mischief caused by male prostitution — is also no longer valid since these conditions have long ceased to exist before 2007. 

The Government had also repudiated the relevance of 377A by not enforcing it, thus “affirming that no state interest would be served or advanced by criminalising or prosecuting male homosexual conduct between consenting adults in private”, Mr Chan wrote.

HOW PRINCIPLE OF EQUALITY IS VIOLATED

In addition, Mr Chan said that Section 377A is “an outlier in the criminal law regime” in that it is the only gender-specific criminal law that exists here.

This would violate the principle of equality of all persons before the law and not permit them to enjoy equal protection of the law, which is provided for by Article 12(1) of the Constitution.

In such laws, one key aspect is the concept of gender-neutral law, as opposed to gender-specific laws. For example, homicide laws are gender-neutral as the act can be done by both male and females.

A gender-specific law, on the other hand, means that the act can only be performed by one gender.

“If equality before the law is not absolute, a differentiating law based on sex or gender must have a rational basis for the classification,” the paper said.

If Parliament, hypothetically speaking, bans women from smoking cigars, it will violate women’s right to equality with men before the law, but not if the Government is able to justify the “reasonableness” for it — such as if it is on health grounds that women are more prone to cancer than men when they smoke.

The court will have to consider whether this is legitimate on the basis of whether it advances or serves any national interest, he said.

Mr Chan then argued that since the original intent of Section 377A to combat male prostitution no longer exists, the notion that Section 377A should exist as a gender-specific law is no longer legitimate.

This means that the existence of Section 377A violates Article 12(1) of the Constitution, he said.