Section 377A does not violate constitutional provisions, right to sexual freedom not “unenumerated” in Constitution

The right to sexual freedom or privacy is not inherently enshrined in the Singapore Constitution, and the legality of various forms of voluntary sexual conduct “are questions of societal values and morality” left for Parliament to decide, said the Attorney-General’s Chambers (AGC).

“There is no unenumerated free-standing right to sexual freedom or privacy in the Constitution,” argued Deputy Chief Counsel Hui Choon Kuen, Deputy Senior State Counsels Denise Wong and Jeremy Yeo, and State Counsel Jamie Pang in a 124-page submission in the civil suits brought by three gay men — one of them being DJ Johnson Ong Ming, whose lawyers relied on scientific evidence from medical experts  —  in a constitutional challenge of Section 377A of the Penal Code.

The lawyers highlighted that under the Singapore Constitution, laws can be considered discriminatory only if they violate a citizen’s rights based on religion, race, descent, or place of birth.

The words “gender”, “sex” and “sexual orientation”, on the other hand, were not expressly listed in Constitution.

Additionally, concepts such as privacy, human dignity and identity cannot be given the status of constitutional rights due to their abstract nature, in contrast to the aforementioned “concrete rights” such as religion, as well as those concerning free speech and freedom of movement.

The latter type of rights concern a larger segment of Singapore society, and are related to matters of public order and security, according to the State Counsels.

AGC’s lawyers also argued that the Court should dismiss all three applications, stating that Parliament should, instead, be given the authority to decide questions of societal morality such as those pertaining to Section 377A, due to the nature of Members of Parliament being “directly accountable” to the people of Singapore as “democratically elected representatives”.

“Whether or not to repeal Section 377A on policy grounds is an extremely difficult issue but, with all due respect to the Judiciary, it is a problem that constitutionally belongs to the Legislature and not the Judiciary,” said AGC’s lawyers.

“It is Parliament, and not the courts, that should decide the deeply divisive socio-political issue of whether Singapore should continue to criminalise male homosexual sex acts,” they added.

The AGC lawyers added that should the applicants’ submissions be accepted, it will have “a strong potential impact on other national policies” including family, marriage, housing and education, and will signal “a major change from long-held societal norms” which will upset certain segments of the population who are strongly against the repeal of Section 377A.

The State Counsels also reasserted the Government’s position that the police will not proactively enforce Section 377A.

“On his part, the Public Prosecutor will not pursue prosecution where the homosexual sex acts were conducted in private between consenting adults,” they said.

In a post-hearings statement on Wed, the AGC said that it “will leave the Court to make its decision on the applications”.

Touching on the applicants’ argument that the AGC’s current position on other offences related to Section 377A is unclear, AGC said that according to the Public Prosecutor, “absent other factors, prosecution under s 377A would not be in the public interest” if “the conduct in question was between two consenting adults in a private place”.

“It would naturally follow from this position that any prosecution under other provisions which would contradict the non- prosecution position of s 377A would likewise not be in the public interest,” AGC added.

The court will release its judgment at a later date.

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