On March 30, 2020, the Singapore High Court has dismissed three cases seeking to strike down a colonial-era law that makes consensual gay sex a crime. With a highly technical reading of the law, High Court Justice See Kee Oon concluded that section 377A of the criminal code is “not so patently unreasonable,” leaving gay and bisexual men without their fundamental rights.
Upon the dismissal by the High Court, the activists are left with one channel unexhausted — the Court of Appeal in Singapore. In fact, all three of them have already indicated their intent to appeal. It is uncertain whether the Highest Court in Singapore will opt to stay with its narrow interpretation of the country’s constitution, or whether it might deviate from its previous approach in light of the growing acceptance of sexual minorities and the global trend toward decriminalizing consensual same-sex conduct.
The court bundled the three cases into one. Ong Ming Johnson, Choong Chee Hong, and Tan Seng Kee, all activists, brought three separate lawsuits in 2018 and 2019 challenging the constitutionality of 377A. The provision effectively punishes consensual sex between two males, either in public or in private, with a prison term up to two years. The activists contended that the provision contradicts several articles of Singapore’s constitution.
In 2014, a similar challenge to 377A was adjudicated by the Court of Appeal, the highest court in Singapore, in the case Lim Meng Suang v. Attorney General. In that case, the Court of Appeal very narrowly interpreted constitutional provisions and dismissed the arguments raised by the applicants. High Court Justice See adhered to this approach and dismissed all arguments raised by the three applicants.
Section 377A applies to what is only described as “gross indecency” between “two males.” The definition of “gross indecency” is nowhere to be found, but all parties agreed that it refers to sexual activities. The wording of the provision leaves out any similar activities between a man and a woman or between two women. The applicants contended that such differential treatment is discriminatory and unconstitutional.
The High Court stated that the purpose of 377A is not to discriminate against male homosexual conduct, but to safeguard public morals through criminalizing such conduct. It is unclear what the actual difference is between the two notions crafted and put forward by Justice See. As to how punishing consensual sex between men specifically protects public morals, the Court seemed to suggest this is a question for the legislature.
Justice See looked to jurisprudence of several jurisdictions that dealt with similar provisions. Because of its colonial history, Singapore shares a very similar legal landscape with most of the countries surveyed, among which Hong Kong and India have struck down their versions of 377A. But Justice See concluded that foreign jurisprudence is of “limited assistance.” One of the reasons he cited was that some of these countries are parties to certain human rights treaties, but not Singapore.
In a landmark decision over two decades ago, Toonen v. Australia, the UN Human Rights Committee has recognized the right to privacy for same-sex consenting adults under international law. This is echoed by a robust body of jurisprudence of United Nations treaty bodies and regional or national tribunals in following years. The prohibition of discrimination on the basis of sexual orientation is well grounded in human rights law.
The court also ruled that the de facto non-enforcement of 377A is not a basis to invalidate that law, noting that the law serves the purpose of “safeguarding public morality” by showing societal moral disapproval of male homosexual acts. This implicitly acknowledged the stigmatization created by merely having such laws on the books, while leaving 377A intact.
Finding himself unable to “depart from binding decisions of the highest court” in Singapore, Justice See has left a discriminatory provision in place. He further justified the law stating that Singapore laws should be “reflecting public sentiment and beliefs.” Regardless of their respective social and cultural contexts, while observing legal precedence, judges should not lose sight of human rights norms and international law. Moving ahead, respect for dignity and equality is at stake as the appellate court considers this case.