'Reflects Public Sentiment & Beliefs': Singapore SC Upholds Law Criminalizing Homosexuality

The Supreme Court of Singapore has held that Section 377A of the Penal Code, which criminalizes homosexuality, is not unconstitutional.

The bench presided by Justice See Kee Oon held that Section 377A serves the purpose of safeguarding public morality by showing societal moral disapproval of male homosexual acts and reflects public sentiment and beliefs.

The Court further noted that, in 2014, the Court of Appeal in Lim Meng Suang and another v Attorney-General, held that s 377A of the Penal Code, which criminalises acts of "gross indecency" between men whether occurring in public or private, does not infringe either the rights to equality and equal protection guaranteed by Art 12(1), or the rights to life and personal liberty guaranteed by Art 9(1) of the Constitution. It said that it is bound by the doctrine of vertical stare decisis in Singapore.

The Law

Section 377A of the Penal Code reads as follows: 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.

The Challenge

The Court was disposing of the petition filed by Ong Ming Johnson, who had sought a declaration that s 377A of the Penal Code was inconsistent with Articles 9(1) and/or 12(1) of the Constitution. Two other petitioners, Choong Chee and Dr Tan Seng Kee, had also filed petitions seeking the same reliefs.

It serves the purpose of safeguarding public morality by showing societal moral disapproval of male homosexual acts

Following are the important observations by the Court:

• The continued criminalisation of s 377A was not absurd or arbitrary and did not violate Article 9 of the Constitution
• Section 377A could not be said to be redundant simply because of the Singapore Government's stance of non-enforcement in respect of consensual male homosexual activity in private. Statutory provisions serve an important role in reflecting public sentiment and beliefs. Section 377A, in particular, serves the purpose of safeguarding public morality by showing societal moral disapproval of male homosexual acts:
• Section 377A also could not be said to be either under- or over-inclusive. There is no need for a perfect coincidence between the differentia used and the object sought to be achieved. The plaintiffs had argued that s 377A excluded female homosexual conduct and other conduct which harms public morals. At the same time, it targeted conduct in private that did not harm public morals.
• The presumption of constitutionality may not operate as strongly for Singapore's pre-Independence laws (such as 377A) as it would compared to post-Independence laws. However, for s 377A in particular, the presumption of constitutionality applies with equal (if not greater) force as it does to post-Independence laws.

Summary of findings 

• Section 377A of the Penal Code was intended to safeguard public morals generally and enable enforcement and prosecution of all forms of gross indecency between males. It was not targeted solely at male prostitution when it was enacted in 1938.
• Section 377A covers all forms of male homosexual activity including penetrative and non-penetrative sex, whether in public or in private and with or without consent.
• The presumption of constitutionality applies to s 377A as the provision was extensively debated and retained by Parliament in 2007.
• Section 377A does not violate Article 12 of the Constitution as it was not under- or over-inclusive. It is not appropriate to adopt a broader test of proportionality for Article 12(1) of the Constitution.
• Section 377A does not violate Article 14(1)(a) of the Constitution. The right to freedom of expression contained in Article 14(1)(a) must be understood to relate to the right to freedom of speech, encompassing matters of verbal communication of an idea, opinion or belief.
• There is no comprehensive scientific consensus as to whether a person's sexual orientation is immutable. The court is not the appropriate forum to seek resolution of a scientific issue that remains controversial.
• Issues relating to how s 377A is enforced are distinct from, and should be addressed separately from, issues relating to the constitutionality of s 377A.
• Non-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.
• The Court of Appeal's decision in Lim Meng Suang and another v Attorney-General and another appeal and another matter [2015] 1 SLR 26 in relation to a number of the arguments raised in the present case is binding. In any case, the Court has reached the same conclusions that the Court of Appeal arrived at, even after taking into account the additional material put forth by the plaintiffs.

(To be updated after receiving judgment)

Read the Case Summary here.