The High Court on Mon (30 Mar) dismissed three separate constitutional challenges brought against Section 377A of the Penal Code which criminalises consensual sex between men.
Delivering his judgement in chambers today, Justice See Kee Oon — in a case summary released by the court — rejected the arguments of three men that the provision violates the Singapore Constitution.
Several issues were raised by the appellants in their challenges, which encompassed the following, but were not limited to:
- whether Section 377A only covers non-penetrative male homosexual activity and is targeted only at male prostitution;
- whether the presumption of constitutionality applies to s 377A;
- whether there exists scientific consensus regarding male homosexuality originating purely from biological factors which may result in Section 377A violating Article 9(1) of the Constitution;
- whether Section 377A contravened “a non-derogable right” to freedom of expression under Article 14 of the Constitution; and
- whether the continued criminalisation of male homosexual activity through the retention of s 377A was absurd or arbitrary and hence inconsistent with Article 9(1) of the Constitution.
Justice See Kee Oon, in setting aside the appellants arguments, reasoned that Section 377A “intended to safeguard public morals generally and enable enforcement and prosecution of all forms of gross indecency between males”.
He added that the provision “was not targeted solely at male prostitution when it was enacted in 1938″.
The judge also rejected the argument that Section 377A is in contravention of Article 12, as the provision “was not under- or over-inclusive”.
According to Justice See, it is not appropriate to adopt a broader test of proportionality for Article 12(1) of the Constitution, the case summary read.
Touching on Section 377A and the right to freedom of expression provided for in Article 14(1)(a), the judge said that Section 377A does not violate the said Article.
The right to freedom of expression, according to Justice See, “must be understood to relate to the right to freedom of speech, encompassing matters of verbal communication of an idea, opinion or belief”.
Further, the judge observed that “no comprehensive scientific consensus as to whether a person’s sexual orientation is immutable” exists as of today.
The court, said Justice See, is “not the appropriate forum to seek resolution of a scientific issue that remains controversial”.
Issues surrounding the enforcement of Section 377A, he added is a separate matter from those surrounding the Penal Code provision’s constitutionality.
While Justice See noted that Section 377A is generally not enforced in Singapore, he stressed that “[n]on-enforcement of s 377A in respect of consensual male homosexual activity in private does not render it redundant”.
“Legislation remains important in reflecting public sentiment and beliefs,” according to the judge.
Lawyers told CNA outside the court today that Justice See’s full judgement grounds will be released to the public at a later date.
Last Sep, Roy Tan, an LGBT activist and one of the three men who had filed legal challenges against Section 377A, said that an “anachronistic law” such as Section 377A “adversely affects the lives of gay men”.
“By institutionalising discrimination, it alienates them from having a sense of belonging and purposeful place in our society, and prevents them from taking pride in Singapore’s achievements,” the retired general medical practitioner said.
“On a personal and professional level, I am extremely concerned about the mental and physical health aspects of retaining Section 377A. In my practice, I regularly see how the law can adversely impact the mental health of LGBT people, who frequently present with depression, social isolation and even suicidal tendencies,” Mr Tan added.
Mr Tan’s counsel M Ravi of Carson Law Chambers told reporters after the hearing today that he is currently considering appealing the High Court decision.
Mr M Ravi also viewed the decision as “astounding” and “utterly shocking” because “you still criminalise these people”.
“Societal norms have changed with time and our voices have grown and so we will keep trying – the journey will not end, till section 377A is declared unconstitutional and abolished,” said Mr M Ravi in a Facebook post today.
Suang Wijaya of Eugene Thuraisingam LLC, who acts for disc jockey Johnson Ong Ming, told CNA that his client intends to appeal against the decision.
