Round Two – Strike Two: Singapore and LGBT Rights (Ong Ming Johnson v Attorney General)

Karan Gupta

Supreme Court of India

On 30 March 2020, the High Court of Singapore dismissed three petitions challenging the constitutional validity of Section 377A of the Penal Code, 1938. The provision stipulates that any male person who, in public or private, commits, abets or procures the commission of an act of “gross indecency” with another male person shall be punished, with imprisonment for a term of up to two years. Section 377, which criminalised carnal intercourse against the ‘order of nature’, was repealed in 2007.

A myriad of arguments were raised before and addressed by the High Court. These included arguments that the provision: – (i) Violates the right to life and personal liberty guaranteed under Article 9 of the Singaporean Constitution; (ii) Does not comport with the requirements of an intelligible classification into distinct groups and rational nexus to the object sought in Article 12; (iii) Is narrow and was intended to cover only male prostitution; (iv) Is not presumed constitutionally compliant, as it is a pre-independence law; and (v) In so far as it criminalises consensual sexual conduct between adults, violates the right to privacy.

The Court of Appeal (CoA) had, on a previous occasion, considered a challenge to the constitutionality of Section 377A and rejected the above contentions. The CoA held that the term “gross indecency” is not vague. The Court held that the provision covers both penetrative and non-penetrative sexual activities between males, whether in public or private [CoA 51, 134]. The CoA was overly confident that the legislature would repeal the provision [CoA 178]. The High Court, in conformity with the principle of stare decisis, observed that the dictum of the CoA binds it, but may consider fresh submissions not previously heard by the CoA [4]. While the High Court also dealt with principles of statutory interpretation, in this post, I focus on two constitutional issues that were raised before and decided by the Court. The issues are: (I) That the freedom of “expression” provision, in Article 14, covers sexual orientation; and (II) That the arbitrary enforcement of Section 377A renders it unconstitutional.

I.               Freedom of expression and sexual orientation

The High Court held that even though the plain and ordinary meaning of the term ‘expression’ may include sexual orientation, the marginal note in the Constitution to the provision employs only three terms - “freedom of speech, assembly and association.” Consequently, ‘freedom of expression’ is not a free-standing right [246, 249]. The High Court, therefore, employed the marginal note to restrict the meaning of a substantive constitutional provision, conflating freedom of expression with freedom of speech, thereby limiting ‘expression’ to verbal communication only.

Article Art 14(1)(a), however, employs both terms, “speech” and “expression”, suggesting these are two distinct rights. To address this, the High Court, in contradiction with standard principles of constitutional interpretation, relied on the “short history of post-independent Singapore” to hold that “allowance [must be made] for surplusage of redundant words” [255]. The Court thus rendered nugatory the explicit text of a constitutional provision.

The Court’s finding that the words are superfluous and redundant is in contradiction with its acceptance that sexual orientation and physical intimacy may serve as a vehicle for conveying meaning [261]. While the CoA has previously relied on foreign jurisprudence, the High Court distinguishes the progressive judgments of the Canadian and Indian Supreme Courts that support the interpretation of the term ‘expression’ as including sexual orientation in a single paragraph without any reason apart from bare disagreement [262]. The judgment suggests that if the term “expression” were to be interpreted to include sexual orientation, this would open up the possibility for arguments that incest, pedophilia, necrophilia and bestiality also need to be included [263]. This argument overlooks the distinguishing feature that the case did not concern the inclusion of every form of physical contact, but specifically, consensual sexual relations between two adult males.

II.             Arbitrary enforcement of Section 377A

The most persuasive argument put forward by the plaintiff was that the arbitrary enforcement of Section 377A renders its occasional implementation ultra vires, particularly as it also violates Article 9 (the right to life and personal liberty) – yet this is also the argument least considered in the Court’s judgment. A 2018 press release by the Attorney General’s Chambers, placed on record by the plaintiff strongly supported the argument. The press release indicates that the “police will not proactively enforce this provision” and that the Public Prosecutor continues to take the position that “where the conduct in question was between two consenting adults in a private place…absent other factors…prosecution would not be in the public interest.” The Prime Minister (PM) has made a similar statement. In Parliament in 2007, during intense debate on Section 377A, the PM admitted the “legal untidiness and ambiguity” of the provision and stated that it would not be enforced. The plaintiff contended that, as the provision is not consistently enforced, it is impossible to predict which situations will invite investigation, the provision is therefore unconstitutional. The High Court rejected this argument, holding that the enforcement of a provision and its constitutionality are “separate and distinct” issues [287]. Further, the Court found that administrative review provides adequate recourse against arbitrary enforcement [287].

The High Court’s finding fails to account for at least two aspects to the argument raised by the plaintiff. First, the judgement does not deal with the problem of partial enforcement of the provision – which ought to be considered unconstitutional in and of itself, as it leads to arrests despite no intention to prosecute. Section 424 of the Penal Code places on every person a duty to immediately notify the police officer in charge of the nearest police station, should they become aware of the commission, or intended commission, of an offence under Chapter XVI (which includes Section 377A). While the Attorney General’s press release indicated that there would be no prosecutions under Section 377A, it also notes that “if there are reports lodged” the police will still investigate. Furthermore, Section 17 of the Criminal Procedure Code provides that if the police receive information about an ‘arrestable case’ (which includes Section 377A), they must, as soon as possible, investigate the matter and, if appropriate, arrest the offender(s). Such an investigation would occur prior to the Public Prosecutor exercising her prosecutorial discretion to disallow prosecution. Fundamental rights exist to protect an intrinsic good. The plaintiff and the Court overlooked that there is a strong argument that the piecemeal and discretionary enforcement of Section 377A does not pass the constitutional scrutiny of equal protection of the law.

Second, the judgement does not address the part of the argument relating to the rule of law. All legal systems committed to the rule of law include a requirement that no individual be subjected to “the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint”. As early as 1999, the Minister of State affirmed that Singapore is committed to the rule of law. The Minister noted the government’s understanding that the rule of law “refers to the supremacy of law, as opposed to the arbitrary exercise of power.” The PM’s admission that the provision is untidy and ambiguous belies this purported commitment to the rule of law. Article 9 provides for the limitation of the right to life and liberty, if by “law”. Such restrictive laws ought, however, to be reasonably determinable, and their effect predictable, creating a ‘bond of reciprocity’ between those that govern and the governed.

A further point

In addition to the above, there is consensus that even if the provisions are not implemented at all, having provisions like Section 377A on the statute books encourages homophobia, discrimination and violence against the LGBT community. Further, the retention of the provision also limits this marginalised community’s access to healthcare and severely, negatively, impacts the psychological well-being and dignity of members of the LGBT community. In both the United States of America and Canada, this negative impact underpinned decisions to decriminalise consensual sexual conduct between adults of the same sex. The arguments are well documented in the oft-cited amici curiae brief of the American Psychological Association in the matter of Lawrence v Texas. The fact that this kind of discrimination has been witnessed in Singapore supports the contention that this argument also applies in Singapore.

Conclusion

In 2007, a Minister supported a petition for the repeal of Section 377A and expressed hope that Singapore “will move with and not play catching [sic] up with the pace of change around the world that is affecting people's lives.” Thirteen years later, however, the High Court affirmed the retention of Section 377A, noting that it serves the purpose of “safeguarding public morality by showing societal moral disapproval of male homosexual acts” [298]. In doing so, the Court has overlooked related, developments elsewhere in the world, including in the recent judgments of the Indian Supreme Court and the High Court of Botswana (both of which decriminalised homosexuality). Instead, the Singapore High Court has joined the High Court of Kenya in denying the LGBT community their moral right to dignity, autonomy and privacy.

Karan Gupta is an advocate at the Supreme Court of India.

Suggested citation: Karan Gupta, “Round Two – Strike Two: Singapore and LGBT Rights (Ong Ming Johnson v Attorney General)” IACL-IADC Blog (30 April 2020) https://blog-iacl-aidc.org/2020-posts/2020/4/30/round-two-strike-two-singapore-and-lgbt-rights-ong-ming-johnson-v-attorney-general