By Hetal Doshi and Sankalp Udgata
On 30th March, 2020 Singapore High Court (“Court”), in Ong Ming Johnson v. Attorney General,[1] upheld the law that criminalizes sex between men. The ruling dismissed all the three appeals[2] which challenged the colonial-era law[3] to be unconstitutional. This decision came after the LGBTQ rights movement in Singapore regained momentum after India’s Supreme Court struck down a similar law in 2018.[4] In a world where several countries are moving towards breaking the narrow shackles of the word ‘gender’, this judgement comes as nothing less than a catastrophe for the LGBTQ community’s age old fight for their rights.
Background
The Court had been approached by three homosexual men who challenged Sec. 377A[5] of the Penal Code of Singapore which criminalizes homosexuality between males to be unconstitutional. Their application[6] stated that Sec. 377A was violative of Article 9[7] (Right to life and personal liberty), Article 12[8] (Equal protection before the law) and Article 14[9] (Right to freedom of speech and expression) of the Constitution of Singapore. The plaintiffs also pleaded for reconsideration of the Court of Appeal’s judgment in Lim Meng Suang and another v Attorney-General[10] which dismissed the similar challenge to Sec. 377A in 2014.
The Judgement
The Court upheld the constitutionality of Sec. 377A on the ground that the provision continues to serve its purpose of safeguarding public morality by showing societal moral disapproval of male homosexual acts.
The Court further held that Sec. 377A was not violative of Art. 12 as it was in consonance with both limbs of the reasonable classification test i.e. there exist sufficient intelligible differentia and that the object of Sec. 377A was met. It stated that the legal criterion needed for an intelligible differentia involves a relatively low threshold and the law must be unreasonable as to be illogical and/or incoherent to fail the said test. The differentia in the present case was found to be not unreasonable as it is targeted at homosexual acts between males, as opposed to sexual acts between females or between males and females.[11] Moreover, the Court found it neither under-inclusive or over-exclusive.[12]
Secondly, the Court held that the law was not violative of Art. 14 as the term “expression” cannot be interpreted to include non-verbal communications.[13] Lastly, the Court held that Parliament’s decision[14] to retain Sec. 377A without any amendments proves that it is in consonance with public sentiments and points towards the presumption of constitutionality.[15]
The Critical Analysis
The judgment of the Court is constitutionally preposterous and morally egregious. Though the judgement attempts to reason its stand, the reason appear to defeat the object and purpose of the constitutionally protected rights of dignity, equality and expression for the reasons mentioned below:
Ceding to the majoritarian beliefs at the cost of minorities– While the Indian Supreme Court in Navtej Singh Johar v. Union of India[16] (“Navtej”) stressed that majoritarian views and popular morality cannot dictate the constitutional rights, the Singaporean Court held otherwise. It refused from interpreting Art. 12(1) in a manner contrary to the dictum of the Parliament even though it undermines the object behind Art. 12(1) i.e. preventing majority oppression.
The erroneous intelligible differentia– The intelligible differentia on which Sec. 377A is based on is over-inclusive because it targets conduct in private which does not harm public morals, and/or is under-inclusive because it excludes females who engage in same-sex sexual conduct.[17]
The Court held it not to be under-exclusive on the ground that there exist special laws for women in which men are excluded as popular societal opinion approves it and the same society disapproves of homosexual activity between males and not females.[18] The Court further held the provision not to be over-exclusive on the ground that several other private acts such as incest are also criminalized on the ground that it is against public morality.[19] This kind of reasoning by the Court is incapable of covering the minority rights and is condemnable.
Traditional Judicial Review– The plaintiff had cited the Indian case of Anuj Garg and others v. Hotel Association of India,[20] where the court had held that legislations should not be only assessed on its proposed aims but rather on the implications and effects. The Singaporean Court disregarded this approach by stating that it was at odds with the Court of Appeal’s guidance in Lim Meng Suang CA,[21] that courts ought not to take into consideration extra-legal arguments, regardless of how plausible they may seem.
The Court here seems to trade-off between the dignity and identity of the homosexual males protected under Art. 9 of the Constitution for continuance of obsolete principles of judicial review. It undermines the fact that sexual orientation is an integral part of identity.[22] Without the protection of both sexual orientation and right to privacy, individual identity may lose significance, a sense of trepidation may take over and the existence of LGBTQ community would be reduced to mere survival.
Narrow interpretation of Rights and Freedoms – The Court rejected the argument to interpret ‘sexual expression’ as a part of freedom of expression. The Court held that such wider meaning would be extending it beyond verbal communication which might lead to absurd outcomes.[23] The court reasoned that if such wider meaning was allowed then in future sexual offences such as paedophilia may also be argued to be covered by Art. 14(1)(a) as a form of sexual expression. Such reasoning prima facie showcases the fallacy of slippery slope by asserting that inclusion of the right to sexual expression of two consenting males will lead to inclusion of those who commit offences such as paedophilia.
The way forward
The LGBTQ community has been a victim of the pre-dominant (Victorian) morality which prevailed at the time when the Penal Code was drafted and enacted. While it is difficult to right the wrong of history, but we can certainly set the course for the future. In recent times we have witnessed examples of countries like India,[24] Botswana[25] and Bhutan[26] who have decriminalized homosexual acts between two consenting adults. In such a progression, the judgement of the Court adds to the age old persecution of homosexuals.[27] However, the plaintiffs have filed an appeal[28] in the Court of Appeal and thus, there still remains hope for possible repealing of this archaic and discriminatory law.
The authors, Hetal Doshi and Sankalp Udgata, are currently law students at the National University of Study and Research in Law (NUSRL), Ranchi.
[1] Ong Ming Johnson v. Attorney General, [2020] SGHC 63 (High Court of Singapore).
[2] Ibid, at 3.
[3] Singapore’s penal code which criminalizes homosexuality is a colonial legislature enacted in 1938 by the British colonial authorities during the colonial rule to target the mischief of “rampant male prostitution”.
[4] Jeffrey Gettleman, Kai Schultz and Suhasini Raj, India Gay Sex Ban Is Struck Down. ‘Indefensible,’ Court Says, The Ney York Times (06/09/2018), available at https://www.nytimes.com/2018/09/06/world/asia/india-gay-sex-377.html, last seen on 08/04/2020.
[5] S. 377A, Penal Code 1871, (Singapore).
[6] Supra 1, ¶ 18.
[7] Constitution of The Republic of Singapore, Article 9.
[8] Ibid, Article 12.
[9] Ibid, Article 14.
[10] Lim Meng Suang and another v. Attorney-General, [2015] 1 SLR 26 (Supreme Court of Singapore).
[11] Supra 1, ¶ 171.
[12] Supra 1, ¶ 194.
[13] Supra 1, ¶ 249.
[14] Full parliamentary speech by PM Lee Hsien Loong in 2007 on Section 377A, The Strait Times (24/10/2007), available at https://www.straitstimes.com/politics/full-parliamentary-speech-by-pm-lee-hsien-loong-in-2007-on-section-377a, last seen on 09/04/2020.
[15]Supra 1, ¶ 152-154.
[16]Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
[17] Supra 1, ¶ 191.
[18] Supra 1, ¶ 191.
[19] Supra 1, ¶ 193.
[20] Anuj Garg and Others v. Hotel Association of India and Others, (2008) 3 SCC 1.
[21] Supra 1, ¶ 223.
[22] Joanna Slater & Vidhi Doshi, India’s Supreme Court decriminalizes gay sex in historic ruling, The Washington Post (06/09/2018), available at https://www.washingtonpost.com/world/asia_pacific/indias-supreme-court-decriminalizes-gay-sex-in-historic-ruling/2018/09/06/d15467b6-b111-11e8-8b53-50116768e499_story.html, last seen on 09/04/2020.
[23] Supra 1, ¶ 249.
[24] Supra 16.
[25] Rachel Savage, Botswana joins the 10 latest countries to decriminalize gay sex, Thomas Reuters (11/06/2019), available at https://www.reuters.com/article/us-botswana-lgbt-countries/factbox-botswana-joins-the-10-latest-countries-to-decriminalize-gay-sex-idUSKCN1TC20Y, last seen on 09/04/2020.
[26] Thimpu, Bhutan gays celebrate after homosexuality decriminalised, France 24 (08/06/2019), available at https://www.france24.com/en/20190608-bhutan-gays-celebrate-after-homosexuality-decriminalised, last seen on 08/04/2020.
[27] John Geddie & Aradhana Aravindan, Singapore court upholds colonial-era law that criminalises sex between men, Thomas Reuters (30/03/2020), available at https://in.reuters.com/article/singapore-lgbt/singapore-court-upholds-law-that-criminalises-gay-sex-idINKBN21H0XT, last seen on 05/04/2020.
[28] Ashok Kini, Homosexuality is not a form of ‘expression’: Singapore SC disagrees with ‘Navtej Singh Johar’ Judgment, LiveLaw (01/04/2020), available at https://www.livelaw.in/top-stories/homosexuality-is-not-a-form-of-expression-154638, last seen on 09/04/2020.
The Journal of Indian Law and Society 