What constitutional challenge does Section 377A of the Penal Code face?
In Singapore the recent proposal to reform the Penal Code has once again left s 377A untouched. However, elsewhere the equivalent section has been invalidated. In a recent decision, the Supreme Court of India struck down a provision similar to s 377A, generating widespread public discussion in Singapore.
Inspired by the Indian decision, a fresh constitutional challenge has been brought against the provision in the High Court of Singapore. Such a challenge was also urged by Singapore’s Ambassador-at-Large Professor Tommy Koh.
What is the problem with s 377A?
S377A’s sister provision, s 377, was repealed in 2007 as the government deemed it to be archaic. Its repeal decriminalised oral and anal sex between two consenting male and female persons in private. In contrast, s 377A punishes such acts between two consenting males regardless of whether it is committed in public or private.
Some commentators have described s 377A as a “calculated move to criminalise private sexual conduct between males”. Others described criminalising consensual sex between males as “absurd” and “arbitrary” and against “human dignity”.
Past constitutional challenges
There have been two constitutional challenges against s 377A in the last decade – Lim Meng Suang v Attorney-General  3 SLR 118 (“Lim Meng Suang”) and Tan Eng Hong v Attorney-General  4 SLR 476 (“Tan Eng Hong”). Both challenges argued that s 377A should be struck down as they conflict with Articles 9 and 12 of our Constitution.
Article 9 states that “No person shall be deprived of his life or personal liberty save in accordance with law.” In Tan Eng Hong, the applicant argued that “life and personal liberty” encompassed “privacy, human dignity, individual autonomy and the human need for an intimate personal sphere”. However, the court rejected this argument citing that “life and personal liberty” had been narrowly defined by past cases.
Article 12 enshrines equality before the law and that all persons are entitled to the equal protection of the law. In Lim Meng Suang, the applicant argued that Article 12 prevented discrimination based on sexual orientation. However, the High Court rejected the argument as the wording only pertains to discrimination based on “religion, race, descent or place of birth” and not sexual orientation. In its concluding remarks, the court highlighted that this is a matter that involved societal values which had been heavily debated in parliament and should therefore not be decided by the courts.
So what’s new?
News reports suggest that this challenge will be based on the argument that criminalising consensual sex between males is “absurd”, “arbitrary” and against “human dignity”, and will be supported by expert scientific evidence showing that sexual orientation is “unchangeable or suppressible at unacceptable personal cost”.
In Tan Eng Hong, the court leaned toward the proposition that “law” in Article 9 should include fundamental rules of natural justice. Although what is a fundamental rule of natural justice has not been defined, the court held that laws must not be arbitrary or absurd. In that case, Quentin Loh J concluded that the literature on the issue remains “divided and inconclusive at best”, such that it could not be proven that homosexuality was “tied to a natural and immutable human attribute”.
The new constitutional challenge will apparently seek to advance expert testimony to prove that homosexuality is “unchangeable or suppressible at unacceptable personal cost”. While five years ago, medical and scientific literature was insufficient to convince the court, things may be different today. With expert witnesses taking the stand this time round, perhaps the court may be persuaded to depart from its decision in Tan Eng Hong five years ago.
Furthermore, the court in Tan Eng Hong and Lim Meng Suang relied on Indian case law which is no longer good law so the court will need to take into account the reasoning of the Indian Supreme Court in its recent decision striking down the equivalent of s 377A.
While the threshold to invalidate a law on constitutional grounds is very high in Singapore, these developments certainly increase the likelihood that this could happen in the case of s 377A.