Court of Appeal rejects challenges to Section 377A, law criminalizing sex between men to stay

SINGAPORE: The Court of Appeal on Monday (February 28th) upheld a lower court’s decision to dismiss three challenges to Section 377A of the Penal Code, which criminalizes sex between men.

The challenges were taken up by: disc jockey Johnson Ong Ming, retired general practitioner Roy Tan Seng Kee and Bryan Choong Chee Hoong, the former executive director of the LGBT non-profit organization Oogachaga.

High Court Judge See Kee Oon dismissed their challenges in March 2020 and the three men turned to the Supreme Court to appeal the decision.

Under Section 377A of the Penal Code, any man who commits an act of gross indecency with another man in public or in private can be imprisoned for up to two years. This extends to any man who encourages such an act, procures or attempts to procure such an act.

In a 152-page written judgment delivered by Chief Justice Sundaresh Menon on behalf of a five-judge panel, the Court of Appeal pointed out that the appeals do not address “the issue of whether Section 377A should be retained or repealed”, as it was “a matter beyond our remit”.

“Nor do they concern the moral worth of homosexual individuals,” the chief justice said. He quoted Prime Minister Lee Hsien Loong’s remarks that gay people are “part of our society” and “our friends and relatives”.

Nor do the appeals address the fundamental nature of sexual orientation (whether immutable or not), it is an “extra-legal matter far beyond the jurisdiction of the courts”, did he declare.

Rather, the appeals focus on whether Section 377A is inconsistent with the Constitution, but even that is a “deceptively easy answer” that “belies the underlying complexity of the issues before us,” the judge said. chief.

The Court of Appeals ruled that the entirety of Section 377A is “unenforceable” unless and until the then Attorney General provides clear notice that he, in his capacity as prosecutor, intends to reaffirm its right to enforce the law through prosecution and will no longer abide by statements made by the then GA in 2018 as to which prosecution policy applies to certain conduct.

Chief Justice Menon said it was therefore “unnecessary” for the Court of Appeal to rule on the constitutional issues raised by the appellants.

“They face no real and credible threat of prosecution under Section 377A at this time and therefore do not have standing to pursue their constitutional challenges to that provision,” the chief justice said.

A SUMMARY OF THE POLITICAL REALITY AROUND 377A

The judgment released on Monday summarized the “political reality” surrounding Section 377A in three main points.

“First, although Section 377A was retained in our statute books, that was on condition that it was not proactively enforced,” the chief justice said.

“The government’s obvious reluctance to repeal Section 377A signals its assessment that society has yet to adequately integrate the opposing viewpoints of traditional conservatives and the gay community, as well as its awareness that our multiracial, multilingual and Multi-religious society remains vulnerable along these fault lines.The government was particularly aware that forcing the issue would polarize those who are “currently willing to live and let live”.

Second, the retention of Section 377A in 2007 “was intended to pragmatically address a deeply divisive sociopolitical issue,” the court said.

The decision not to repeal Section 377A at the time “was a legislative decision that was driven not by the purpose underlying the enactment of the provision some seven decades earlier, but by the purpose of the government to find an optimal compromise between the competing interests of our society and to reconcile the differing perspectives on homosexuality,” said Chief Justice Menon.

Third, the purpose of the “political compromise” on Section 377A that was reached in 2007 was to “strike a careful balance between the competing interests of various groups”.

“The retention of Section 377A served to accommodate the views of more conservative segments of society, while the caveat that Section 377A would not be proactively enforced served to accommodate the interests of gay individuals and to allow them to live their lives in as full a space as is currently possible,” the Chief Justice said.

Other points raised by the Court of Appeal in its judgment include the following:

First, the right to express one’s gender identity, even in private, is not an express constitutional right.

Second, Section 377A is not an “absurd” law and “many reasonable people actually consider Section 377A to be morally justified”, as evidenced by parliamentary debates.

“Many parliamentarians have spoken in favor of keeping Section 377A, often on the grounds of safeguarding societal morality and recognizing that a significant segment of our society considers homosexual behavior unacceptable,” the judge said. Chief Menon.

The Supreme Court agreed with High Court Justice See Kee Oon that Section 377A does not violate Section 9(1) of the Constitution of Singapore, which states that no one shall be deprived of his or her life or personal freedom, except in accordance with the law.

CONTEXT OF THE THREE CALLS OF MEN

While all previous challenges against Section 377A had also failed, the trio’s legal actions came after former Chief Justice Chan Sek Keong called for a review of Section 377A, with two former attorneys general making also public comments on the law.

Mr Ong was represented by Eugene Thuraisingam, Suang Wijaya, Johannes Hadi and Joel Wong, while Mr Tan was represented by attorney Mr Ravi.

Mr. Choong was represented by lead counsel Harpreet Singh Nehal, Jordan Tan, Victor Leong, Remy Choo Zheng Xi, Priscilla Chia and Wong Thai Yong.

Among the arguments were submissions based on new historical documents, including recently declassified documents demonstrating that the introduction of Section 377A in 1938 was intended to criminalize “rampant male prostitution” when Singapore was under British colonial rule.

Other arguments were based on scientific evidence from experts on the nature of sexual orientation, claiming that homosexuals cannot voluntarily change orientation and that Section 377A is discriminatory and violates the Constitution.

State attorneys representing the Attorney General’s Chambers had previously argued that Section 377A sends “a certain moral signal” by its mere existence and advances a legitimate and reasonable state interest, reflecting an aspect of the societal morality, “regardless of whether and how it is enforced”.

They said Section 377A is constitutional and called the issue a “deeply divisive socio-political one” that should be decided by the Legislature or Parliament rather than the judiciary.

AGC’s lawyers reiterated the government’s position that police will not take proactive steps to enforce Section 377A.

In a statement after the judgment was released, Pink Dot SG said it was “deeply disappointed” with the court’s decision.

“The acknowledgment that Section 377A is only unenforceable in the sense of prosecution is cold comfort. The true impact of Section 377A lies in the way it perpetuates discrimination in all aspects of the life – at home, at school, at work, in our media and even in accessing vital services like health care,” he said.