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Homosexuality In Singapore: The Tale Of A Prejudicial Mind Over A Judicial Mind

Updated: Aug 22



[This article is authored by Prakhar Srivastava, Bharati Vidyapeeth's New Law College]


“When we lose the right to be different, we lose the privilege to be free”

- Charles Evan Hughes,

Former Chief Justice, US Supreme Court


Background


The judicial system followed by Singapore is the “common law” system, which essentially means that law declared by a higher court in Singapore shall be binding upon the other courts subordinate to it. Like many other common law countries, this characteristic feature is a result of the British Rule in Singapore. Among various other things that the British left in Singapore was also the Penal Code. 

For the better part of the 19th century, the criminal law that was applicable to the Straits Settlement, i.e., a group of British territories located in Southeast and East Asia (comprising Singapore, Penang, and Malacca) was that of the United Kingdom. There were, however, doubts as to the applicability of Indian laws in the territory. In 1871, the Straits Settlement Penal Code was enacted, which was practically a re-enactment of the Indian Penal Code, 1860. With this re-enactment also came the draconian criminalization of sodomy and homosexuality. 

At its inception, Section 377 of the Singapore Penal Code criminalized “carnal intercourse against the order of nature” irrespective of the sex of the persons involved therein. As historically interpreted in India, “carnal intercourse against the order of nature” means any act of sodomy, bestiality, and even oral sex (Courts had interpreted that oral sex as penetrative sex on the reasoning that the mouth is like an orifice into which the penis of another would be inserted). 

In the year 1938, an amendment was introduced to the Penal Code, and Section 377A was introduced which specifically prohibited and criminalized sex between homosexual males.

Section 377A of the Penal Code of Singapore, 1871 provides,

“377A. 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.”

By virtue of Section 377A, as a bare perusal of the aforesaid will show, any “male”, irrespective of whether in private or in public, if, engages in any sexual activity with another “male” which the law reads as “gross indecency” or “abets” the same, shall be punished with an imprisonment of up to 2 years. The law does not distinguish between an adult male and a minor, nor does it even define the term “gross indecency”, clearly leaving it to the whim and caprice of the police to decide. 

As such, whereas Section 377 prohibited “carnal intercourse against the order of nature” for both heterosexuals and homosexuals, Section 377A specifically curtailed any homosexual activity between males. In accordance thereof, whereas heterosexuals always had the freedom to express their sexuality barring carnal intercourse, the homosexual activity of any nature was barred. 

In 2007, Section 377 of the Penal Code was repealed by legislative action, which in turn would mean that heterosexuals now had full freedom to express their sexuality, due to Section 377A; homosexual males had no such freedom. Section 377A was especially enacted against homosexual male activity and as such, repeal of Section 377 had no effect on their status. At the time, Singapore Prime Minister Lee Hsein Loong reportedly said, 

“Singapore is basically a conservative society," the prime minister, Lee Hsien Loong, told MPs before the vote. "The family is the basic building block of this society. And by a family in Singapore, we mean one man, one woman, marrying, having children, and bringing up children within that framework of a stable family unit.”

He added, 

“The more gay activists push this agenda, the stronger will be the push-back from conservative forces," Mr. Lee said. "The result will be counterproductive because it's going to lead to less space for the gay community in Singapore.”

As such, the executive intent of the then government became apparent. 

In continuation of this ongoing struggle, an appeal against Section 377A reached the Court of Appeal, namely Lim Meng Suang and another v. Attorney General [(2015) 1 SLR 26] [1], primarily assailing the law on the premise of violation of rights to life & liberty or equality & equal protection guaranteed under Article 9 and 12 of the Constitution of Singapore respectively. The appeal was, however, dismissed. 

Most recently, in 2018, the section was challenged once again before the Singapore High Court (“SGHC”). Three petitions filed by Ong Ming Johnson, Chong Chee Hong, and Tang Seng Kee, namely Ong Ming Johnson and others v. Attorney General [(2020) SGHC 63] [2] challenged the constitutional validity of the section on grounds as shall be discussed in this blog from time to time. However, the SGHC, in its decision dated March 30, 2020, dismissed the challenge. 

Being a common law country, the SGHC’s decision is currently the law with regard to homosexuality in Singapore. 

Analysis of the judgment from the Indian frame

The fresh challenge was filed after the Supreme Court of India, in a landmark decision in Navtej Singh Johar and Others v. Union of India [AIR 2018 SC 4321] [3] had decriminalized homosexuality by declaring Section 377 of the Indian Penal Code as unconstitutional to the extent that it criminalized consensual homosexual activity. The SGHC has categorically rejected the position adopted by the Indian Supreme Court in Navtej. 

With the High Court of Singapore mentioning in its judgment that it does not accept the Indian Supreme Court’s decision in Navtej and other Indian judgments, it is opportune to discuss how the SGHC’s judgment differed from the Indian judgments. I shall then establish why the Indian position is the correct one, keeping in view international legal developments. 


(a) Expression

The SGHC has effectively disagreed with the broadening of the contours of the term “Expression” under Article 14 of its Constitution and held that such expansion as has been done in Navtej is also bad in law. The SGHC held that the term, “expression” only means verbal communication of ideas, beliefs, and opinions. The court further stated that if “Sexual expression” were to be considered a part of “Expression”, it would lead to absurd outcomes, such as justification of necrophilia, incest, pedophilia, and bestiality. 


(b) The Traditional Notion of Judicial Review

The SGHC has stuck to the traditional understanding of “Judicial Review” by opposing the Indian position elucidated in Anuj Garg and Others v. Hotel Association of India and Others, [(2008) 3 SCC 1] [4]. It held that judicial review must only deal with purely legal aspects, and no other aspects should be taken into account. Per contra, in Anuj Garg, the Indian Supreme Court held that “legislation should not be only assessed on its proposed aims but rather on the implications and the effects”. 


(c) Perception of society toward male homosexual conduct   

In its reasoning, the SGHC has also stated that there is no change in the outlook of the Singaporean society towards male homosexual conduct since the Parliament’s decision to retain the provision in 2007, thereby upholding the provision. 

The aforesaid reasoning, inter alia, was advanced by the SGHC to uphold the contentious Section 377A of the Penal Code. This reasoning, it is submitted, is hyperbolic, paradoxical, and one that is sourced from pure prejudice against male homosexuals in Singapore.   

Firstly, the SGHC’s view that judicial review should be confined to the assessment of only legal aspects is paradoxical in its own right. Whereas the court once states that only legal arguments decide judicial review of legislation, later, it goes on to consider the societal approach towards male homosexuals to uphold the draconian provision. The SGHC, accordingly, has not remained consistent in its own opinions by considering the outlook of society. It accordingly becomes apparent that the court is willing to consider “other” aspects, confined however to its own liking. 

Secondly, the court’s opinion that sexual expression is not covered under Article 14 of the Constitution of Singapore is also flawed. It is submitted that not just homosexuality, but any form of sexuality is, in fact, a manifestation of a person’s inner sexual desires. As per the court, freedom of expression flows from the freedom of speech, and as such, any expression must necessarily point to some form of verbal communication. Even if this narrow position was to be conceded to, a person “expresses” their attraction to such another as they may find suitable by way of speech, gestures, and actions themselves. To stop a person from expressing their inclination toward another or to engage with them owing to fear of the law is hindering their right to express their feelings, and hence their right to speech as well. Sexual expression does not merely mean having intercourse, but also to be able to live with the person one would want to, express one’s choices freely and without the fear of the law.   

Thirdly, the judgment has opened a Pandora’s Box by preferring public morality to constitutional morality.  Some obvious questions entail this reasoning. One, how did the High Court arrive at the conclusion that the societal approach is against homosexual males at a time when the number of protests is only growing against the archaic law with more and more participation? Two, can constitutional decisions be made basis public opinion, for the same is as transient as dreams and shadows? Notably, the Parliament had repealed Section 377 only in the year 2007. Does it then mean that up until 2007, public opinion was against sodomy or such other “carnal intercourse” against “the order of nature” for heterosexuals too? What is to say if that opinion has changed at all? Three, should public opinion be allowed to decide what two individuals do in their own private space, with consent? Would it not amount to a “police state” if everything two individuals did was subject to public scrutiny? Four, is dynamic public opinion superior to a static Constitution and the principles it embodies? 

In light of the above observations and thoughts, it prima facie appears that the decision of the SGHC was one of exemplary bias against the homosexual community and decided with a prejudiced mind, not judicial. The argument that the SGHC was bound by the Supreme Court’s decision in Lim Meng Suang and another v. Attorney General (supra) is also erroneous as the challenge to the statute in the review was founded on a wholly different premise in Ong Ming Johnson. Any judicial decision should be free from the personal bias of the Judge. The instant decision was an opportunity missed; only adding to the collective trauma faced by the LGBTQ+ community of Singapore, and by extension, the rest of the world.     

References

[1] Lim Meng Suang and another v. Attorney General [(2015) 1 SLR 26]

[2] Ong Ming Johnson and others v. Attorney General [(2020) SGHC 63] 

[3] Navtej Singh Johar and Others v. Union of India [AIR 2018 SC 4321]

[4] Anuj Garg and Others v. Hotel Association of India and Others, [(2008) 3 SCC 1]


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