Court of Appeal dismisses challenges to Section 377A, law criminalising sex between men to stay

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

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

High Court judge See Kee Oon had dismissed their challenges in March 2020, and the three men turned to the Apex Court to appeal against the decision.

According to Section 377A of the Penal Code, any man who commits any act of gross indecency with another man in public or in private can be jailed for up to two years. This extends to any man who abets 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panel, the Court of Appeal stressed that the appeals are "not about whether Section 377A should be retained or repealed", as this was "a matter beyond our remit".

"Nor are they about the moral worth of homosexual individuals," said the Chief Justice. He quoted Prime Minister Lee Hsien Loong's words that homosexual individuals are "part of our society" and "our kith and kin". 

The appeals are also "not about the fundamental nature of sexual orientation (whether immutable or not)", this being an "extra-legal question well beyond the purview of the courts", he said.

The appeals are instead about whether Section 377A is inconsistent with the Constitution, but even this is a "deceptively easy answer" that "belies the underlying complexity of the issues that are before us", said the Chief Justice.

The Court of Appeal held that the entirety of Section 377A is "unenforceable" 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 the law by way of prosecution and will no longer abide by representations made by the then-AG in 2018 as to the prosecutorial policy that applies to certain conduct.

Chief Justice Menon said it is therefore "unnecessary" for the Court of Appeal to address the constitutional questions raised by the appellants.

"They do not face any 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," said the Chief Justice.

A SUMMARY OF THE POLITICAL REALITY SURROUNDING 377A

The judgment released on Monday laid out a summary of the "political reality" surrounding Section 377A in three main points.

"First, although Section 377A was retained in our statute books, this was on the terms that it would not be proactively enforced," said the Chief Justice.

"The Government's evident unwillingness to repeal Section 377A signals its assessment that society has yet to adequately integrate the opposing views of mainstream conservatives and the homosexual community, as well as its awareness that our multi-racial, multi-lingual and multi-religious community remains vulnerable along such fault lines. The Government was especially cognisant that forcing the issue would polarise those who are 'presently willing to live and let live'."

Second, the retention of Section 377A in 2007 "was directed at addressing a deeply divisive socio-political issue in a pragmatic way", the court said.

The decision not to repeal Section 377A then "was a legislative one that was informed not by the purpose behind the enactment of the provision some seven decades earlier, but by the Government's objective of striking an optimal compromise between competing interests in our society and accommodating 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 opposing interests of various groups".

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

Other points that the Court of Appeal made in its judgment include the following: 

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

Second, Section 377A is not an "absurd" law, and "many reasonable people do in fact see Section 377A as being morally justified", as evident from parliamentary debates.

"Numerous parliamentarians spoke up in favour of retaining Section 377A, often on the ground of safeguarding societal morality and with the recognition that a sizable segment of our society regards homosexual behaviour as unacceptable," said Chief Justice Menon.

The Apex Court agreed with High Court judge See Kee Oon that Section 377A does not violate Article 9(1) of the Constitution of Singapore, which states that no person shall be deprived of his life or personal liberty save in accordance with the law.

BACKGROUND OF THE THREE MEN'S APPEALS

While all previous challenges against Section 377A had similarly failed, the trio's court actions came after former Chief Justice Chan Sek Keong called for a review of Section 377A, with two former attorneys-general also making 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 lawyer M Ravi.

Mr Choong was represented by Senior 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 material including recently declassified documents demonstrating that the introduction of Section 377A in 1938 was to criminalise "rampant male prostitution" when Singapore was under British colonial rule.

Other arguments were based on expert scientific evidence on the nature of sexual orientation, arguing that homosexuals cannot willfully change their orientation and that Section 377A is discriminatory and violates the Constitution.

State Counsels 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 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 instead of the judiciary.

AGC's lawyers reiterated the Government's position that the police will not take proactive action to enforce Section 377A.

In a statement after the judgment was released, Pink Dot SG said it was "profoundly disappointed" by the court’s decision.

"The acknowledgement that Section 377A is unenforceable only in the prosecutorial sense is cold comfort. Section 377A’s real impact lies in how it perpetuates discrimination across every aspect of life - at home, in schools, in the workplace, in our media, and even access to vital services like healthcare," it said.

One of the appellants, Mr Ong, said he is "disappointed with the outcome", but said the ruling "does not mean the end of the community's pursuit for equality".

"Although the non-enforcement of Section 377A offers a small step towards the LGBTQ+ community’s freedom from discrimination and oppression, it will take more time before the LGBTQ+ community finds full recognition and acceptance by policymakers and society," he said.