1. What is the Constitution and what does it say?
The Constitution is the supreme law in Singapore. It contains the fundamental rules and principles applicable to all laws passed by Parliament and all acts performed by the Government. Any law passed by Parliament or act by the Government that is contrary to the Constitution is unconstitutional and void.
Article 9(1) provides that no person shall be deprived of life or personal liberty save in accordance with law. It is accepted that ‘law’ in this context excludes laws that are absurd or arbitrary.
Article 12(1) stipulates that all persons are equal before the law and entitled to equal protection of the law.
Article 14(1)(a) guarantees the right to freedom of speech and expression to all citizens.
And section 377A of the Penal Code is a law that was passed by colonial law-makers in 1938, when Singapore was still under colonial rule. So the question is — is section 377A contrary to the Constitution?
2. Three cases are presently being decided by the Court of Appeal.
Johnson Ong (aka DJ Big Kid), Bryan Choong (former Executive Director of Oogachaga), and Dr Roy Tan (veteran LGBT activist) filed lawsuits challenging the constitutionality of section 377A in 2018 and 2019.
Through their lawyers, they argued that section 377A was contrary to Articles 9(1), 12(1), and 14(1)(a) of the Constitution. They took aim at section 377A from three different angles:-
Johnson relied on expert scientists, who testified that homosexuality was a natural variant of human sexuality and that humans, whether homosexual, bisexual, or heterosexual, could not wilfully change their sexual orientation. Because of this, a law that purports to prohibit homosexual conduct is absurd because it targets a person’s natural identity, which they cannot control or change.
Bryan’s case was based on recently declassified colonial documents from the UK National Archives suggesting that the original purpose of section 377A was to outlaw male prostitution rather than discriminate against male homosexuals generally. He also argued that section 377A treated male homosexuals unequally and violated their right to express intimacy through sex.
At the oral hearing, Roy’s lawyer focused on the absurdity and arbitrariness of the Government’s promise not to actively enforce section 377A while allowing it to remain as law. For instance, it was pointed out that section 424 of the Criminal Procedure Code made it a punishable offence for people not to report their knowledge of homosexual acts to the police.
Bryan Choong
Source: Ching S. Sia, Roy Tan
Johnson Ong
Roy Tan
In 2020, the High Court dismissed all three cases. Johnson, Bryan, and Roy appealed to the highest court in Singapore, the Court of Appeal.
The Court of Appeal heard the appeals in January 2021 and reserved its judgment. We expect that final judgment will be delivered by the end of the year.
3. Two cases were previously dismissed by the Court of Appeal in 2014. What’s different this time?
Two previous cases, brought by Tan Eng Hong and Gary Lim and Kenneth Chee, were dismissed by the Court of Appeal in October 2014. What’s different about the cases this time?
New material and evidence. Johnson’s scientific evidence and Bryan’s colonial archive documents were not available during the previous cases.
Homophobia is becoming less acceptable. A 2019 survey by the Institute of Policy Studies showed a decrease in the number of Singaporeans who disapproved of gay relationships and sex compared to 5 years ago. The Ready4Repeal petition also gathered more than 50,000 verified signatures.
Educated public opinion has turned in favour of decriminalisation. Former Chief Justice and Attorney-General Chan Sek Keong has argued in an unprecedented paper that section 377A is unconstitutional. This view is shared by other former Attorneys-General V. K. Rajah (who was also a former Judge of Appeal) and Professor Walter Woon, veteran diplomats Professors Tommy Koh and Kishore Mahbubani, and other business and society leaders. Law and Home Affairs Minister Mr K Shanmugam has also stated his personal hesitation about treating male homosexuals as criminals.
For more information, please refer to:
The case summary and full judgement of the 2020 court decision from the High Court currently under appeal.
Ready4Repeal’s explainer of the 2020 High Court decision from 1 April 2020.
Banner image source: Bill Oxford/Unsplash