A summary on the High Court’s 2020 decision on the three constitutional challenges to 377A
Singapore’s apex court will be hearing an appeal on s 377A of the Penal Code (“s 377A”) this coming Monday, 25 January 2021. This follows the most recent challenge of the law, which was dismissed by the High Court last year.
To better understand the upcoming appeal, we have summarised the High Court’s decision that’s being appealed in a two-part article.
- Part One is a summary of the entire judgment.
- Part Two has notes on to interpret the law, and goes into the interesting details of the additional material that the Plaintiffs relied on.
Tomorrow’s appeal will see the five Judges of Appeal listening to the plaintiffs argue on where the High Court went wrong. They may pass a verdict tomorrow, or reserve judgment till a later date.
It’s the second time the Court of Appeal will be hearing a challenge to s 377A, after the first appeal was dismissed in 2013.
Part One: A Summary
The High Court reached seven major conclusions on s 377A. Here they are.
S 377A was enacted to safeguard public morality generally and enable enforcement and prosecution of all male homosexual acts – penetrative and non-penetrative sex, whether in public or in private and with or without consent. It was not, as the Plaintiffs argued, targeted solely at male prostitution.
The High Court’s reasoning was based on the text and context of s 377A.
It went through two types of material – legislative material and additional material (eight other documents). We deal with these materials more in Part Two. In short, the relevant legislative material relates to what the legislation said when s 377A was introduced. These sources showed they intended to import existing English criminal law. The additional material was irrelevant under the law, but the High Court dealt with each document anyway. Some referred to problems other than male prostitution, and some had no verifiable sources. These indicate that the purpose or object was not targeted solely at the mischief of male prostitution.
Plaintiffs also argued s 377A cannot overlap with s 377 (repealed in 2007) that already covered penetrative sex, it. However, the High Court found that the English law, which was equivalent to s 377A, covered penetrative sex and did not always involve male prostitutes. Moreover, there are other overlaps, such as S 377A being used to prosecute penetrative sexual activity that was already covered by s 377. As a whole, the Penal Code has numerous examples of overlapping offences, where all wider offences carry lesser punishment than narrower ones (as in the case of ss 377 and 377A).
S 377A was presumed to be constitutional. The presumption applies to all laws, but stood especially for s 377A as it was extensively debated and retained by Parliament in 2007.
Plaintiffs had argued that the presumption does not apply to s 377A, as a colonial-era legislation passed long before the Constitution kicked in. In rejecting the argument, the High Court noted that this argument had been raised before and rejected by the apex Court in the case of Lim Meng Suang v Attorney-General  1 SLR 26 (“Lim Meng Suang”).
New arguments were made that this presumption should not have a role in constitutional cases, since this presumption goes against what the courts have to do under the separation of powers, which is to decide whether a law is constitutional. However the High Court held that this presumption, which is not uniquely Singaporean, operates as a starting point for the courts to consider a piece of legislation. While the courts can question whether the Constitution is violated, it also can recognise the underlying premise that the legislature is best placed to understand and represent the interests of Singapore citizens.
S 377A was consistent with Article 12(1) of the Constitution (“Art 12”), which ensures equal protection of the law for all persons. The High Court disagreed with the plaintiffs who argued that s 377A violated Art 12 based on the applicable legal test of reasonable classification, because it only criminalises male-male sexual conduct, and not female-male, or female-female conduct.
Under the “reasonable classification” test, the law in question must be an “intelligible differentia” that distinguishes persons within the group from others, and whether this differentia had a “rational relation” to the law’s objective. As long as these hurdles are crossed, the law stands even if it’s discriminatory.
The High Court held that the differentia of s 377A of male homosexual conduct (as opposed to female homosexual conduct), had a “rational relation” to its objective of safeguarding public morals, by criminalising male homosexual conduct.
The plaintiffs had further argued that there was no “rational relation between” the differentia and the law’s objective. This, because it was both under-inclusive, by excluding other acts harmful to public morality, and over inclusive, by including private conduct that doesn’t harm public morals.
The High Court disagreed that s 377A was under-inclusive, even though it did not criminalise female homosexual conduct and other conduct harmful to public morality. It reasoned that it was Parliament’s decision on whether such conduct should be subject to the same degree of societal disapproval as male homosexual activity. The courts should guard against such determination of public morality.
In rejecting the argument that s 377A was over-inclusive as it targets private conduct which doesn’t harm public morals, The High Court said this presupposes that conduct in private can be divorced from precepts of public morality. However, there are instances where some private acts are criminalised due to concerns over degeneration of public morality.
While plaintiffs also argued that Art 12 must protect gender equality, the High Court said it allows for differentiation based on gender, as long as it passes the reasonable classification test. It doesn’t accord free-standing substantive rights.
The plaintiffs further argue that there are limitations to the reasonable classification test, and suggested adopting the principle of proportionality, which has been used in other countries. However, the High Court held that adopting such a principle may run the risk of the court usurping the legislative function when it decides on whether a legislative purpose is legitimate.
S 377A is consistent with Article 14(1)(a) of the Constitution (“Art 14”), which protects the freedom of speech and expression. The High Court rejected the argument that s 377A ran against Art 14 since it prevents the expression of sexual identity.
The High Court held that under Art 14, “freedom of speech and expression” relates to verbal communication of an idea, opinion or belief. This is based on Art 14’s text and context. An expansive reading without reference to freedom of speech could potentially lead to absurd outcomes; it would mean that virtually any act could be protected and this could not have been the draftsmen’s intentions.
The plaintiffs relied on additional material such as the Yogyokarta Principles, which argue that the right to freedom of expression include sexual expression. The High Court said the material did not qualify as customary international law that should be adopted by the courts, with only 29 out of 193 UN member states subscribing to them.
S 377A is consistent with Article 9(1) of the Constitution (“Art 9”), which provides that persons can only be deprived of personal liberty in accordance with law. Plaintiffs argued that s 377A was absurd because sexual orientation is part of a person’s identity and cannot be changed; s 377A thus cannot be considered “law” under Art 9.
In rejecting the Plaintiffs’ claims, the High Court gave three reasons. First, it held that there was no comprehensive scientific consensus that sexual orientation was biologically determined and thus could not be changed. Instead, it found that that experts appeared to agree that it is possible for sexual orientation to change over time. Secondly, such materials, i.e. scientific opinions on sexual orientation, were in any event, “extra-legal,” and beyond the courts purview. Finally, it held that s 377A did not criminalise male homosexuals based on their identity or orientation, but the act of gross indecency itself.
The High Court held that this argument effectively asks for a constitutional protection to homosexuals on the basis of their homosexual identity, which is an unqualified constitutional right to “personal liberty.” However, many constitutional rights are qualified and are not absolute.
S 377A is also consistent with Article 9(1) of the Constitution (“Art 9”), even though Plaintiffs’ argued that the government’s decision not to proactively enforce it made it absurd or arbitrary.
The High Court said that the non-enforcement of s 377A is irrelevant to whether a law is constitutional. Enforcement issues fall under administrative, not constitutional review. Administrative review looks into how a law is enforced, and whether there are any legal issues with the process.
According to the High Court, laws play an important role in reflecting public sentiment and beliefs, and s 377A still continues to serve its purpose of safeguarding public morality by showing societal moral disapproval of male homosexual acts.
It also found that s 377A was not totally useless since instances of exploitation or abuse of minors could still be investigated and potentially prosecuted under it.
The High Court was bound by the reasons and conclusions in the previous Court of Appeal decision in Lim Meng Suang. Nonetheless, it reached the same conclusions as the Court of Appeal, even after considering the plaintiffs’ new arguments and additional material.
The plaintiffs also argued for exceptions to the rule that judgments should bind lower courts when it comes to constitutional rights, and referred to a Canadian case on this. The High Court said this advocated a clear endorsement of activism and a readiness to depart from the Court of Appeal’s binding judgments. In rejecting this, it said such an approach promotes uncertainty to the scope of constitutional rights that are of fundamental importance. The ordinary citizen will face difficulty arranging his or her affairs in both the private and public sphere.
To check out Part 2 of this article where we look at the legislative material and additional material (eight other documents), click the button.