Section 377A court ruling largely erases uncertainty on prosecution but legal position 'remains untidy': Lawyers

SINGAPORE — The Court of Appeal’s ruling on Monday (Feb 28) has made it clear that all sexual acts between men, including consensual acts carried out in private, will not be prosecuted under Section 377A of the Penal Code, legal experts said.

The experts, however, pointed out that although the apex court ruled that Section 377A is unenforceable in its entirety, it did not conclusively rule on whether the provision is constitutionally valid and therefore, this issue remains open.

In its judgement released on Monday morning, five appellate judges dismissed three separate appeals over constitutional challenges mounted against Section 377A by three gay men — the second time in a decade that the apex court here has ruled on the matter.

The High Court had earlier thrown out the challenges in 2020, which were brought up after an Indian court decided to lift a ban on consensual gay sex in September 2018. 

In delivering the Court of Appeal’s judgement, Chief Justice Sundaresh Menon said that Section 377A is unenforceable in its entirety unless and until the Attorney-General (AG) 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 AG Lucien Wong in 2018 as to the prosecutorial policy on sexual acts between two consenting adult men in private

'CLEAR LEGAL CERTAINTY' FOR HOMOSEXUAL MEN

Mr Marcus Teo, a Sheridan Fellow from the law faculty of the National University of Singapore (NUS), said that the apex court’s decision has given homosexual men “clear legal certainty” that they will not be prosecuted under Section 377A.

The court reasoned that this would uphold the Government’s promise made over a decade ago that “homosexual individuals would not be harassed and could live freely within the space afforded to them”, he said. 

Assistant Professor of Law Benjamin Joshua Ong from the Singapore Management University (SMU) said that the apex court's decision has a broader effect than the AG's previously stated policy. 

Mr Wong had said in 2018 that it was not in the public interest to enforce Section 377A against "consenting adults in a private place". However, the Court of Appeal has now held that Section 377A is not enforceable altogether in any case, Asst Prof Ong said.

Associate Professor of Law Eugene Tan, also from SMU, agreed that the ruling provides legal protection that sexually active homosexual men have sought since Prime Minister Lee Hsien Loong said in 2007 that Section 377A would not be actively enforced, even though Parliament ruled to retain it.

In its latest judgement, the apex court had noted that uncertainty over how Section 377A would be applied or enforced had left gay men “unable to plan their lives adequately”.

However, both Mr Teo and Asst Prof Ong said that the ruling does not mean any male-male sexual intercourse is now legal.

General laws such as those criminalising sexual intercourse with a minor still apply to everyone.

“That means that, for example, if two men have sex in public, they cannot be prosecuted under Section 377A, but instead can be prosecuted under a law that criminalises public indecency by anyone.

“In my view, that is a positive development as the charge would then accurately reflect the gravamen of the offence. When two people have sex in public, the crux of the wrong is that it is public indecency; whether or not they are men is irrelevant,” Asst Prof Ong said.

As for the legal ramifications arising from the judgement, Assoc Prof Tan of SMU said that the position on homosexual sex still “remains rather untidy” even with the court’s decision.

It raises the question of whether Parliament will provide further clarity beyond its 2007 stance and the court’s legal protection.

He added that this could be done by amending Section 377A, by striking out the words "or private". 

Section 377A is now as follows: 

“Any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to two years.”

Separately, Asst Prof Ong pointed out that the Court of Appeal has now clarified that the AG cannot prosecute someone for failing to report conduct covered by Section 377A to the police.

In terms of the constitutionality of Section 377A, because the apex court did not express a concluded view on it, someone could argue again that it is unconstitutional should the AG change his policy on non-enforcement.

Its remarks that Section 377A did not violate Article 9(1) of the Constitution are not binding and the issue remains open, Asst Prof Ong added.

Mr Teo from NUS said that the apex court had, in its judgement, further discussed important points of law under the Constitution of Singapore in relation to constitutional guarantees to life and liberty, freedom of expression and equality.

WHAT LBTQ GROUPS SAY

More than a dozen lesbian, gay, bisexual, transgender and queer (LGBTQ) groups put out a joint statement on Monday acknowledging that the judgement was a small step in the right direction but that it did not go far enough to provide the community “real protection”.

The groups also took issue with the court’s assertion that Section 377A does not stifle advocacy, saying that LGBT organisations here have “historically struggled” because they are "perceived as existing for an illegal cause or an illegitimate purpose”.

Pink Dot SG, a non-profit movement supporting the LGBTQ community, said in a separate statement that Section 377A’s real impact lies in how it "perpetuates discrimination across every aspect of life".  

One of the men behind the constitutional challenges — Mr Johnson Ong, a businessman and international disc jockey — said in an email statement that he was disappointed with the outcome, but added that it did not mean the end of the community’s “pursuit for equality”.