The first of two cases challenging the constitutionality of Section 377A of the Penal Code was heard today in the High Court. Referred to here as Chee and Lim versus Attorney-General, the plaintiffs were Kenneth Chee Mun-leon and Lim Meng Suan. They were represented by Peter Low and Choo Zheng Xi.
The court was not open to the public; it is not known who applied for the court to be closed. I only know that the plaintiffs did not.
I have not yet seen transcripts of the oral arguments, but can only rely on the written submissions. However, oral arguments tend to follow written submissions closely. The longish article below outlines the key arguments deployed.
Section 377A says:
Any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to 2 years.
Plaintiffs’ case is that this law is void, being contrary to Article 12(1) of the Singapore Constitution, which says:
All persons are equal before the law and entitled to the equal protection of the law.
The plaintiffs argue that Section 377A is unconstitutional on two grounds: Firstly, that it is “so absurd, arbitrary and unreasonable that it cannot be considered good law”; secondly, that it fails the generally accepted two-stage test of constitutionality when discrimination is alleged.
Absurd, arbitrary and unreasonable
Citing a previous ruling from the Privy Council, it is argued (in paragraph 48) that any legislation or executive action that perpetuates “inequalities […] on a substantial scale” or which exhibit “deliberate and arbitrary discrimination” will fall foul of the Equal Protection clause.
Paragraphs 52 to 69 make the case that homosexual orientation is not a chosen facet of one’s being. “It is therefore absurd, arbitrary and unreasonable for the government to continue criminalising what is, for all extents and purposes, a practically immutable characteristic. It brings the force of the criminal law to bear against individuals for something they cannot change. This can only be absurd.” (Paragraphs 70 and 71). Even members of the government have accepted that it is an immutable characteristic, the submission points out.
Paragraphs 72 to 84 point out that what is meant by the words “gross indecency” in Section 377A is unclear, citing various cases and judges’ observations from the past. It is bad law when the scope is overly broad and variable.
Enforcement is also highly variable, as pointed out in paragraphs 85 to 90. “There is absolutely no clarity as to the circumstances in which [377A] will be enforced. The government acknowledges and admits this” (paragraph 85). In 2007, no less than the prime minister said, “It is not legally neat and tidy”.
Section 377A attempts to legislate morality in an arbitrary and discriminatory manner, say the plaintiffs in their submission. Paragraphs 91 to 108 discuss the impermissibility of trying to legislate a majority’s view of morality upon a minority, citing many legal judgements from around the world. To begin with, Section 377A “criminalises private sexual relations between consenting adults absent any evidence of serious harm,” it says in paragraph 91. A substantial discussion then follows, citing many reports and judgements concerning the need to refrain from allowing the majority to “use the power of the State to enforce [their] views on the whole society through operation of the criminal law.”
Citing a court in the Philippines, it argues that “moral disapproval of an unpopular minority – is not a legitimate state interest that is sufficient to satisfy rational basis review under the equal protection clause” (paragraph 105).
It also notes the glaring inconsistency in 2007, when Section 377A was retained in the Penal Code. “Numerous Members of Parliament pointed out the glaring and selective legislation of morality” when parliament simultaneously legalised adultery which most Singaporeans considered immoral.
Section 377A also causes tangible harm to a segment of the population. Homosexual men are distanced from healthcare and outreach with respect to HIV/AIDS. The stigma created by the law creates psychological damage in subject persons. They also suffer socially when the law “reinforce[s] the misapprehension and general prejudice of the public and increase[s] the anxiety and guilt feelings of homosexuals” (paragraph 129). By making it difficult for exploited gay/bisexual men to approach law enforcement for protection, the law leaves them particularly vulnerable to blackmail.
All the above support plaintiffs’ contention that Section 377A is absurd, arbitrary and unreasonable.
Section 377A fails the two-stage test of constitutionality
It is generally agreed that the constitutionality of any law under which discrimination is alleged is tested under a two-step “reasonable classification” test: whether “(1) the classification is founded on an intelligible differentia; and (2) the differentia bears a rational relation to the object sought to be achieved by the law in question” (paragraph 144). Plaintiffs’ case is that Section 377A fails both tests. They argue that it is muddled as to what it criminalises and as to when it is enforced, except that it singles out gay men; but even so, singling out gay men does not achieve the stated objectives of the law. The immediate objective may be to prevent the occurrence of homosexual acts, but also, as seen from the parliamentary speeches in the debate of 2007, to avoid causing offence and polarisation in society, and to reflect societal conservatism and preserve family values (paragraph 145).
With respect to the first step (Is there intelligible criteria?), plaintiffs argue that “it is completely unclear as to what the definition of ‘gross indecency’ is” (paragraph 148). Moreover, citing previous cases, “consent is not even necessary to trigger the offence”, nor is physical contact. More recently, the executive seems to be saying that Section 377A now covers homosexual sodomy, after Section 377 — the provision that addressed sodomy (both homosexual and heterosexual) — was repealed, “despite that not being [377A’s] original intent”.
“Reading a prohibition on sodomy into a provision that was never intended to encompass sodomy, and which does not specifically prohibit sodomy, contravenes principles of interpretation adopted by the Singapore Courts,” say the plaintiffs (paragraph 83).
Chee and Lim argue that Section 377A “is thus over-inclusive as it captures a whole range of actions that is so ill-defined and amorphous that it could, conceivably, even include the holding of hands in public” and yet that it “is under-inclusive as it only criminalizes male homosexual acts and not female”. (paragraph 151).
In sum, there is no intelligible differentia, failing the first stage of the two-stage test.
What can be inferred from the legislative record as to the object of the law? Clearly, the main intent “is to prevent homosexual acts by criminalising them.” However, from the parliamentary speeches in the debate of 2007, particularly, from the minister moving the bill and the prime minister, one also discerns two other objectives: the first is to not cause offence and polarisation in society, the second is to reflect societal conservatism and preserve family values.
The object of criminalising consensual sex between two men is illegitimate, as discussed above. It is an extension of a desire to impose sectional moral values by law.
But “continued retention of [377A] does not achieve the legislative object of reducing offence and polarisation” either (paragraph 156).
In fact, the very retention of 377A at the same time that 377 was repealed was what caused greater polarisation. “Far from reducing the level of societal disagreement… the continued retention of [Section 377A] has escalated the level of opposition as well as support for repeal and retention” (paragraph 158).
Nor is there any evidence that keeping this law will strengthen or preserve stable family values, or conversely that decriminalisation will have a negative impact on family values or encourage homosexuality (paragraph 163). In fact, forcing homosexual men to get married to the opposite sex in the interest of conformity plants the seed of familial instability. Moreover, the “stability of the family also has to be considered with reference to the psychological well-being of homosexual men, who are brothers, sons and uncles to other members of society. The psychological stigma, confusion, societal opprobrium and isolation visited upon homosexual men cannot in any way be said to be a positive development for family values” (paragraph 165).
The plaintiffs therefore argue that Section 377A fails the second stage of the two-stage test.
Other parts of the submission
The submission also discusses in considerable detail the historical context. Section 377A was incorporated into our Penal Code in 1938, but it is based on the ‘Labouchere Amendment’, Section 11 of the UK Criminal Law Amendment Act 1885, which in turn, say the plaintiffs, is based on “ecclesiastical Western, Judeo-Christian opposition to homosexuality”.
And in a final section (paragraphs 178 to 207), it ranges over many judgements in foreign courts and reports from multinational groups. While Singapore courts are not bound by them, much of the reasoning expressed in those judgements and reports would be helpful in clarifying and weighing the issues.
The plaintiffs ask that the court interprets our Constitution in a manner that accords all citizens “meaningful protection of fundamental rights” and to ensure “effective safeguards against the abuse of majority power” (paragraph 32).
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The Attorney-General also made a written submission to the court. In it, he argues that the differentia in Section 377A is intelligible. “The differentia is based on gender,” he says. Men are caught by the law; women are not (paragraph 8).
He then argues that “as there is a strong presumption of constitutionality attaching to legislation, [plaintiffs have] not shown that the differentia bears no rational relation to the object of s 377 A” (paragraph 9).
Much of his argument relies on the presumption of constitutionality, shifting the burden of proof onto the plaintiffs. At paragraph 14(c) he also underlines that plaintiffs must demolish every possible justification for the law.
This presumption comes about because the “legislature is entrusted by the Constitution with the making of decisions that balance multiple competing interests,” something that courts cannot do (paragraph 15) and the doctrine of the separation of powers “dictates that the judiciary should recognise its co-equality with the democratically-elected legislature and not to override or frustrate proper legislative policy in its review of legislation” (paragraph 16).
The AG also disputes plaintiffs’ contention that Section 377A discriminates against gay men. He says the law “does not, on its face, apply specifically to men who identify as homosexual or gay. It equally applies to those who identify as heterosexual, or who would regard themselves as bisexual, so long as the relevant acts are committed” (paragraph 24), and that this differentiation is is a legitimate one “based on (a) public morality and (b) public health.”
It is perfectly permissible to legislate for public morality, argues the AG. Many other laws, e.g. obscene books, operate on a similar principle. There may be other areas that parliament chooses not to legislate on, but it is “a choice that the legislature has made and it is empowered to do so simply because its actions are mandated by the electorate” (paragraph 31).
In this particular case, parliament has chosen to retain 377A because “the majority of Singaporeans still find homosexual acts offensive and unacceptable” (paragraph 38). Moreover, keeping 377A “helps to preserve the heterosexual family as the social norm. It is also a bulwark against an incrementalist homosexual agenda.”
The policy of non-enforcement is “meant to appease a variety of parties” — a balance the legislature chose to strike.
As for why Section 377A does not target lesbians, the AG says “Public morality does not target female on female acts in the same way” (paragraph 51). There was also no public demand for inclusion, nor any government initiative, he says. The AG also references a House of Lords debate from 1921 to support the argument why female homosexual acts need not be included. The constitutionality of any provision is not damaged because it leaves some people out.
In any case, the signalling function of the law is effective even when females are left out (paragraph 58). Even as it stands — with the underinclusion of females — the law has a rational relation with its objective since “it is clear that s 377A would at least ‘go some way’ in preventing the mainstreaming of homosexual lifestyles and preserving traditional family values. This is especially because, as mentioned above, s 377A has an important signalling and educative role” (paragraph 64).
Section 377A’s other objective is the protection of public health, asserts the AG. There is a high rate of transmission of HIV between men who have sex with men, but no documented instance of the same between women who have sex with women. “Based on this information, it is submitted that s 377A’s differentiation between men and women is justified based on the policy objective of the preservation of public health” (paragraph 81).
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Plaintiffs’ response to Defendant’s submission
In response to the AG’s point that courts should defer to the legislature when the latter makes policy, balancing numerous interests, plaintiffs counter that when it comes to fundamental liberties — the subject of this challenge — “the Defendant’s narrow construction of the powers of the Court to review unconstitutional legislation is misconceived.”
Plaintiffs point out that a citation the defendant relied on to support his point that the presumption of constitutionality should be accorded to acts of the legislature should be seen in context. The full citation should read “For these reasons, a classification neither involving fundamental rights nor proceeding along suspect lines is accorded a strong presumption of validity” (paragraph 56; citing Heller vs Doe).
“This important caveat is omitted by the Defendant,” say the plaintiffs.
Yet, even applying the presumption of Constitutionality, plaintiffs say they have “adduced sufficient evidence of arbitrariness, absurdity and unreasonableness to displace the presumption of Constitutionality.”
The AG’s argument that Section 377A upholds heterosexual norms and that it represents a complex balancing of interests is sweeping, incorrect and logically unsound when “the Defendant has not provided any proof that there is an actual link between homosexual acts and family values” (paragraph 20). Nor is there any balance: “The lives of the people who hold negative attitudes are not curtailed whether or not [Section 377A] exists – they are free to hold negative views about homosexuals. However, the existence of [Section 377A] affects the lives of gay/bisexual men as amply demonstrated” (paragraph 25).
Plaintiffs also counter that when the AG asserts a policy of non-enforcement, it is firstly contrary to the facts, and secondly meaningless since declarations of non-enforcement are not binding on future ministers or even on the prosecution branch, which is supposed to act independently (paragraph 38).
Even if the law were not to be enforced, it is still absurd, arbitrary and unreasonable to impose the social, psychological and health effects of such a law upon a group of people merely for symbolic purposes.
Far from being a justifiable choice made by a legislature, the defendant’s “shifting and inconsistent attempt to justify the non-criminalisation of lesbian acts highlights precisely how arbitrary [377A] is” (paragraph 46).
Paragraph 47: “The Defendant originally argues that the public morality rationale for retaining [377A] is to signify that all homosexual acts are offensive and unacceptable, choosing to make no distinction between the Singapore population’s disapproval for male homosexual acts vis-à-vis female homosexual acts. The Defendant’s position then shifts when it attempts, thinly to justify why male homosexual acts are proscribed but not female homosexual acts.” Moreover, “The ‘reasonable criterion’ the Defendant attempts to rely on to justify this distinction is anything but. The Defendant refers to a 1921 House of Lords debate” in which the following ideas — anachronistic ‘public morality’ of post-World War I Britain — surface, and which he considers suitable for adoption as justification for the differentia:
- Women would be more susceptible to blackmail under this law than men under the equivalent provision because they have an inherent tendency to share rooms;
- There is really no need to criminalise acts of gross indecency between women because lesbians will, through a course of natural selection, become extinct;
- Proscribing lesbian acts would actually encourage people (especially the multitudes of mentally unsound) to commit the crime;
Plaintiffs describe these ideas as “mad” by today’s standards.
Most shockingly, the defendant’s attempt “to import non-existent legislative objectives to justify [377A] is incorrect and dangerous” (paragraph 53). Public health was not cited as an objective of 377A in 2007, and “the Defendant is now essentially asking the Court to proactively create additional reasons to uphold legislation”(paragraph 55).
Finally, plaintiffs argue that majoritarian concerns cannot trump constitutional protection. “The Defendant’s exposition on the fact that the majority of Singaporeans find homosexual acts offensive … is a red herring and in reality, irrelevant to this present application” (paragraph 68) .