This is our quick explainer of the High Court’s judgment in all three s 377a cases, which was published as Ong Ming Johnson v Attorney-General and other matters [2020] SGHC 63. Our summary covers the cases filed by Johnson Ong, Bryan Choong and Roy Tan and we have deliberately chosen the pronoun “we” to express our solidarity with all the plaintiffs.
While we’ve done our best to ensure that this accurately reflects the full judgment, please note that it is only intended to be a summary. We invite you to read the full judgment - just a heads up it’s over 100 pages long!
SUMMARY
1. First, we argued that s 377A was only intended to criminalise commercial and non-penetrative homosexual activity between men, based on historical and legislative material about its origins.
The High Court rejected this interpretation of s 377A.
In the High Court’s view, the original purpose of s 377A was to safeguard public morality generally by enabling enforcement and prosecution of all male homosexual acts — whether penetrative or not, whether in public or private, whether commercial or not, and with or without consent. The High Court also found that s 377A continues today to serve its original purpose of safeguarding public morality by signifying societal moral disapproval of all male homosexual acts.
2. Second, we argued that sexual orientation is part of a person’s identity. We relied on material showing a consensus in the scientific community that regardless of its precise cause, sexual orientation cannot be wilfully changed. We therefore argued that s 377A is absurd and contrary to Article 9(1) of the Constitution, which provides that persons can only be deprived of personal liberty in accordance with law. This is because in legal terms, an absurd law is not properly considered ‘law’.
The High Court rejected this argument for three main reasons. Firstly, it took the view that scientific opinions on the nature of sexual orientation were “extra-legal” arguments that were beyond the Court’s purview. Secondly, it opined that there was no scientific consensus that homosexuality is “immutable” and/or “solely caused by biological factors”. Thirdly, it concluded that s 377A did not criminalise male homosexuals for their identity per se because it only criminalised male homosexual acts. In the High Court’s view, “a heterosexual male can equally be prosecuted under s 377A if he commits such an offence”.
3. Third, we also argued that s 377A is absurd, arbitrary and/or redundant because of the Government’s policy not to proactively enforce the law.
The High Court rejected this argument because, in its view, the non-enforcement of s 377A is irrelevant to the question of its constitutionality. In its view, s 377A still continues to serve its purpose of safeguarding public morality by showing societal moral disapproval of male homosexual acts despite not being enforced.
4. Fourth, we argued that s 377A is contrary to Article 12(1) of the Constitution, which provides that all persons are equal before the law and entitled to the equal protection of the law.
The High Court rejected this constitutional argument on the basis of the applicable legal test. In short, the test states that a discriminatory law is good law if it is based on “reasonable classification”, i.e., the classification is based on “an intelligible differentia” that distinguishes persons within a group from others outside the group and that differentia has a “rational relation” to the objective sought to be achieved by that law. The High Court concluded that there was indeed a rational relation between s 377A’s differentia (male homosexual conduct as opposed to female homosexual conduct) and its object (to safeguard public morals generally by criminalising male homosexual conduct). S 377A was also neither under-inclusive (e.g., by excluding female homosexual conduct and other conduct that harms public morals like adultery) nor over-inclusive (e.g., by including private conduct that does not harm public morals).
5. Fifth, we argued that s 377A is contrary to Article 14(1)(a) of the Constitution, which guarantees every Singaporean the right to freedom of speech and expression, because it prohibits male homosexuals from expressing love and personal closeness with their partners. We argued that all humans regardless of sexual orientation express love and personal closeness with our chosen partners through private and consensual acts of sexual intimacy.
The High Court rejected this constitutional argument on the basis that “freedom of speech and expression” only covers verbal communications and does not cover sexual expression.
6. Lastly, the High Court felt bound by the previous Court of Appeal decision in Lim Meng Suang and another v Attorney-General and another appeal and another matter [2015] 1 SLR 26, although it reached the same conclusions as the Court of Appeal after considering the plaintiffs’ new material and arguments.
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The Supreme Court of Singapore has also published a helpful case digest.
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