Former CJ Chan Sek Keong. Source: Justified - NUS Law Club

Section 377A originally enacted to deal with rampant male prostitution in S’pore, provision no longer serves original purpose today: Ex-CJ Chan Sek Keong

The controversial Section 377A of the Penal Code, widely believed to be a piece of legislation that criminalises sexual intercourse between two men, was in fact enacted as a means of dealing with rampant male prostitution in the late-1930s, said former Chief Justice Chan Sek Keong in a 72-page article in the Singapore Academy of Law Journal published on Mon (14 Oct).

Citing then-Attorney General G C Howell’s speech during the third reading of the Penal Code (Amendment) Bill in the Legislative Council in 1938, who referred to the 1936–1938 Crime Reports, it was highlighted that “prostitution, especially male prostitution, was rife in certain areas of Singapore during this period”.

“The reports documented the activities involving or associated with male prostitution, such as sodomy, “acts of beastliness”, “lewd activities”, and public indecencies such as persistent soliciting in public (including amusement parks and the port area) and “pimping and trafficking”.

“These activities were causing problems for social order, public morality and wholesome government,” Chan observed, in reference to the extracts from the Crime Reports, which were produced in the oral hearing before the Court of Appeal in Lim Meng Suang v Attorney-General [2015].

Section 377A was thus enacted “not because male homosexual conduct was not acceptable in Singapore society in 1938″ in itself, the former CJ argued.

Chan added that “there was no evidence that similar conditions” existed in present-day Singapore, or at least up to 2007, when Members of Parliament voted on retaining Section 377A, and that “[s]uch conditions ceased to exist in Singapore a long time ago”.

The former CJ also argued that Parliament’s decision not to repeal the provision “was made under the misapprehension that s 377A covered penetrative sex”, which, he wrote, “is the hallmark of male homosexuality”.

Based on that premise, Chan argued, “the legislative classification (or differentia) would no longer be reasonable and would not have rational relation to the purpose of s 377A (having ceased to exist)”.

“The legislative purpose or object of s 377A determined at the time of its enactment in 1938 will always remain the same thereafter,” he said, adding that the mere retention of the provision in 2007 “does not affirm or reaffirm its 1938 purpose”.

Noting that “[t]here was no clear majority” of MPs “who could be said to have found all aspects of s 377A unacceptable”, with only a small number of MPs who had “found consensual penetrative sex between males abominable”, Chan said the Government had affirmed — in its decision not to enforce the particular provision — “that no state interest would be served or advanced by criminalising or prosecuting male homosexual conduct between consenting adults in private” in Singapore.

Section 377A “the only genuine gender-specific offence in our criminal laws”; upholds unequal treatment of gay and bisexual men under S’pore law: Former CJ Chan Sek Keong

Calling the offence under Section 377A “the only genuine gender-specific offence in our criminal laws”, Chan pointed out that gay and bisexual men who commit acts branded by the law as “acts of gross indecency” are “treated unequally” in comparison to straight men — or men who engage in heterosexual sexual acts in general — and women of any orientation.

He cited the aforementioned case of Lim Meng Suang in the Court of Appeal, in which the appellants argued that Section 377A renders gay and bisexual men unequal in the eyes of the law, as only consensual sexual acts committed between two men are punishable under the Penal Code provision, and not consensual sexual acts between a man and a woman, or between a woman and another woman.

“Additionally, males are treated unequally vis-à-vis females, in relation to the offence of abetment, procurement or attempted procurement of the acts of gross indecency under s 377A.

Article 12(1) of the Singapore Constitution, said the former Chief Justice, is “self-evident in granting equality before the law as a constitutional right to all persons”.

“Accordingly, s 377A, on its face, differentiates between males and females in these aspects,” said Chan.

Consequently, he argued that “criminalising only male homosexual conduct violates the right to equality” of gay and bisexual men, as they, like the rest, within the class of “all  persons”.

“Equal justice is not achieved merely because a legislative classification applies to all persons within the class. That would be like saying the law applies equally to all to whom it applies, which is clearly a circularity.

“The issue is whether Art 12(1) allows the State to enact a differentiating law that targets a specific class of males, viz, male homosexuals, with respect to acts of gross indecency, but not other classes of males or females in respect of similar acts of gross indecency,” said Chan.

He also urged for the courts to give effect to Article 12(1) “as a substantive right, and not as an aspirational ideal”.

“Article 12(1) is not a preamble or a constitutional directive, but a substantive constitutional provision.

“If, as the court said, the reasonable classification does not furnish the courts with particular legal principles to give full effect to the right of equality of all persons before the law, then the courts must either modify or revise the test (which is only a judicial test) or adopt another more appropriate test to give full effect to such right.

“In any case, as pointed out earlier, the reasonable classification was not formulated for the right of equality before the law, but for entitlement to equal protection,” Chan said.

The former CJ also pointed out that “[f]raming the purpose of s 377A as the criminalisation of male homosexual conduct does not tell us what its goal is, but only what s 377A does”.

“The act of criminalisation in itself says nothing about the object it seeks to achieve. The criminalisation itself becomes its own goal.

“It does not answer the question: Why did s 377A criminalise such conduct? The law is a means to achieve an end. What is it in the case of s 377A?”

TODAY reported the Ministry of Law and the Ministry of Home Affairs as saying on Thu (17 Oct) in response to queries that while they are aware of Chan’s article, “it would be inappropriate to comment on Mr Chan’s analysis at this juncture” as “there are challenges to the constitutionality of Section 377A before the courts”.

No intention to repeal 377A, but legislation has not prevented individuals from “living”: PM Lee

Prime Minister Lee Hsien Loong in Jun reiterated that the Government does not intend to repeal Section 377A.

He said, however, that the legislation has not prevented individuals to whom the legislation might apply from “living”, and has not hindered the influx of talent into Singapore’s technology industry.

Responding to a question from a member of the audience at the Smart Nation Summit at Marina Bay Sands on 26 Jun, regarding making Singapore’s legislation more inclusive for individuals who are not heterosexual, Mr Lee said that Section 377A “remains on our legislation, and it will for some time”.

However, he stressed that retaining the particular piece of legislation does not mean Singapore is hostile towards the LGBTQ community, as Section 377A “has not stopped Pink Dot from having a gathering every year”.

“You know our rules in Singapore. Whatever your sexual orientation, you are welcome to come and work in Singapore.

“It is the way this society is: We are not like San Francisco, neither are we like some countries in the Middle East. (We are) something in between […] And I think in this framework, it is completely possible for us to have a vibrant tech and cultural scene,” added Mr Lee.