Case Summary and Outcome

The Singapore High Court held that a provision criminalizing male same-sex sexual conduct did not infringe the rights to freedom of expression, equality, and life and personal liberty. Although the High Court had held that the provision was constitutional in 2012, three men brought separate applications arguing that new material and comparative foreign jurisprudence ought to be considered by a court in determining whether the provision remained valid in the country. The Court held that although “expression” could be interpreted to include an expression of sexual identity, the right in Singapore did not contemplate a standalone right to freedom of expression, divorced from the right to freedom of speech, and that, therefore, “expression” within the phrase “freedom of speech and expression” had to be read in light of the term “speech” and so was limited to verbal speech or verbal communication.

---

Facts

In 1938, when Singapore was under British colonial administration, section 377A of the Singapore Penal Code (Cape 224, 2008 Rev Ed) was introduced, criminalizing male homosexual sexual conduct. It states: “Any male person who, in public or private, commits, or abets the commission of, or procures to 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”.

In 2007, the Singapore Parliament debated the provision and decided to retain it as part of the country’s criminal law.

In 2012, in Lim Meng Suang v. Attorney General [2015] 1 SLR 26, two male citizens of Singapore who had been in a romantic and sexual relationship for sixteen years brought an application before the High Court, seeking a declaration that section 377A infringed the right of equal protection under the law, protected by article 12 of the Constitution. Article 12(1) states that “[a]ll persons are equal before the law and entitled to the equal protection of the law”. The High Court dismissed the application and the Court of Appeal confirmed the High Court’s judgment.

In 2018 and 2019, three men brought separate applications before the High Court (collectively, the plaintiffs), arguing that there were new issues – including historical evidence and new jurisprudence – that had not been canvassed before the court in the Lin Meng Suang case. In 2018, the first application was filed by Ong Ming Johnson (Ong), an international disc jockey who was homosexual and was in a long-term relationship with a man. The second application was filed that same year by Choong Chee Hong (Choong), an executive director of an LGBTQ+ non-governmental organization in Singapore, and a homosexual man himself, currently sexually active but not in a relationship. In 2019, when the first two cases had been filed but not yet heard, the third application was filed by Dr Tan, a medical doctor and homosexual man active in the “LGBT … activist scene” [para. 17]. All three men argued that section 377A had not been considered against the grounds of human dignity, and that the constitutionality of section 377A should therefore be reconsidered. As part of their application, the men also submitted that the provision infringed their right to freedom of expression – protected under article 14 of the Constitution – as it prevented them from freely expressing their sexual orientation. Article 14(1) of the Constitution states that “(a) every citizen of Singapore has the right to freedom of speech and expression; (b) all citizens of Singapore have the right to assemble peaceably and without arms; and (c) all citizens of Singapore have the right to form associations”.

The three cases were consolidated and all parties consented to a joint hearing.

---

Decision Overview

Judge See Kee Oon delivered the judgment of the High Court. The central issue for the Court’s determination was whether section 377A was unconstitutional, including “whether there is a non-derogable right to freedom of expression under Art 14 of the Constitution which encompasses sexual orientation and sexual preference” [para. 19].

Ong argued that section 377A violated his right to freedom of expression, under article 14, as it did not allow homosexual men to “freely express their sexual orientation and exchange ideas pertaining to sexuality and sexual orientation” [para. 8]. He also submitted that the provision infringed his right to life and personal liberty, protected by article 9 of the Constitution, as “it is absurd and arbitrary in criminalising persons for their identity”, and that it violated his right to equality, protected by article 12. Ong submitted that the Lim Meng Suang case should be reconsidered because after that case “there has been comprehensive consensus that sexual orientation is unchangeable”; that homosexual men’s liberty continues to be threatened by section 377A; developments in foreign jurisprudence indicated that the decision in Lim Meng Suang should be overturned, and that the Court should consider the infringements of the right to dignity caused by section 377A [para. 9]. Ong referred to the Supreme Court of India case of Navtej Singh Johar v. Union of India AIR 2018 SC 4321 which had declared section 377 of the Indian Penal Code, 35 of 1860 – materially identical to section 377A of the Singapore Penal Code – to be unconstitutional.

Choong focused on the textual interpretation of section 377A and the legislative development of the provision. He argued that colonial-era material (which had not been available to the court in the Lin Meng Suang case) demonstrated that the purpose of the provision was to “target the mischief of ‘rampant male prostitution’” and that it therefore only criminalized commercial male same-sex sexual conduct. Like Ong, Choong argued that the provision infringed the rights to equality and freedom of expression, and the rights to intimacy and privacy, and stated that the retention of the offence led to the threat of criminal investigation and prosecution. Choong sought an order that the provision be changed to remove the words “in private”.

Tan also submitted that section 377A infringed the rights to life and personal liberty, equality and freedom of expression, and stressed the “absurdity and arbitrariness” of the continued existence of the law “given that the official Government policy position is non-enforcement in respect of consensual homosexual acts in private between males” [para. 18].

The Attorney General argued that the purpose of section 377A was only to address male prostitution and so it cannot be interpreted as applying only to commercial sexual transactions.

The Court accepted that it could consider the additional material submitted in their interpretation of section 377A, and examined the explanatory note provided for the Bill and a speech before Parliament when the provision was enacted. The Court concluded that the purpose of the provision was to bring the law in line with English Criminal Law which “criminalises gross indecency between males” and dismissed Choong’s argument that additional material – including reports on male prostitution in the 1930s – demonstrated that the sole purpose of section 377A was to address male prostitution [para. 44]. Accordingly, the Court held that the provision was not limited to commercial sex, and covered “all forms of male homosexual activity including penetrative and non-penetrative sex, whether in public or in private and with or without consent” [para. 141].

In assessing the constitutionality of the provision, the Court addressed the argument raised by Choong that the regular presumption of constitutionality would not apply as section 377A was “passed long before the promulgation of the Constitution” [para. 148] and held that, as the provision had been extensively debated by Parliament in 1938 as well in 2007, it was correct to presume that the provision was constitutional. It applied the three-step test as set out in Tan Cheng Bock v. Attorney General [2017] 2 SLR 850 which requires a court to determine all possible interpretations of a provision (taking into account the law as a whole), to determine the purpose of the legislation, and then to compare the interpretations with the purpose [para. 32].

In examining whether article 377A infringes the right to freedom of expression, the Court stressed, with reference to the Tan Cheng Bock case, that it had the duty to interpret the provision in a manner which gave effect to the intent and will of Parliament. The Court examined the meaning of the word “expression” and accepted that although “the plain and ordinary meaning of the term itself does not rule out the possibility of sexual intercourse being a form of expression” the focus had to remain on the context of the term [para. 244]. The Court highlighted that in the notes on the drafting of article 14 on the right to freedom of speech, assembly and association there is “no mention made of freedom of expression as a free-standing right” [para. 246]. The Court also referred to the Report of the Constitutional Commission in 1966 in which “[n]o mention was made of any independent free-standing right to freedom of expression” [para. 259]. The Court characterized the purpose of article 14 as “giving effect to the right to freedom of speech and expression as forms of verbal communication; and the right to freedom of expression is encompassed within the right to freedom of speech” and that the right to freedom of expression could not be divorced from the right to freedom of speech [para. 249 and 259]. The Court applied the canon of statutory interpretation of ejusdum generis which holds that a court “must identify the ‘genus’ or the common thread that runs through all the items in the list that includes the disputed term” [para. 247]. Although the Court acknowledged that the list “freedom of speech and expression” was not an “ideal provision” to apply ejusdum generis because it was a list of only two terms, it concluded that this canon allowed it to interpret that “expression” “must necessarily point towards some form of verbal communication” [para. 249].

Accordingly, the Court concluded that because the ordinary meaning of “expression” related only to verbal expression “‘expression’ in the form of male homosexual acts would not qualify for protection under Art 14(1)(a)” [para. 255].

The Court rejected the applicants’ argument that this interpretation would make the right tautologous because it would result in the term “expression” having the same meaning as “speech”. The Court mentioned the Chee Siok Chin v. Minister of Home Affairs [2006] 1 SLR(R) 582 case which had recognized that the “right to freedom of speech and expression” had been adopted in Singapore by importing the same right in the Malaysia Constitution. The Court noted this that “fairly ‘long history and borrowed phraseology’” explained why “allowance for surplusage or redundant words should hence be given” [para. 255].

The Court referred to the foreign comparative jurisprudence the plaintiffs had included in their arguments, but dismissed its applicability to Singapore. The Court recognized that “acts of physical intimacy may, in certain circumstances, serve as means through which meaning is conveyed” – as the Court in Irwin Toy Ltd v. Quebec (Attorney General( [1989] 1 S.C.R 927 had found – but stressed that that would not change the context in which article 14 operated in Singapore with expression falling within freedom of speech [para. 261]. The Court also rejected the comparison with the Indian case of Navtej which had held that the criminalization of male same-sex conduct infringed the right to freedom of expression, noting that the Indian Supreme Court “appeared to have accepted a wider meaning of what constitutes ‘expression’, extending beyond verbal communication of ideas, opinions or beliefs” [para. 262]. The Court noted that the plaintiffs had referred to other foreign jurisprudence which had provided an “expansive interpretation” of the right, but noted that “[a]n expansive interpretation can potentially lead to absurd outcomes” as almost any act could receive protection under the right [para. 263]. The Court said that “sexual offences such as incest, paedophilia, necrophilia, or bestiality can arguably be covered by the Art14(1)(a) umbrella as protected forms of ‘sexual expression’” and held that this could not be correct [para. 263].

In rejecting the reference to the Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity, the Court noted that “less than one-sixth of the 193 current member states of the United Nations have subscribed to them” and that Singapore is not one of those [para. 264]. The Court held that it had therefore not become customary international law that the right to freedom of expression encompassed expression of sexual identity.

The Court also held that section 377A did not violate the rights to equality, holding that it was reasonable to criminalize male homosexual conduct and not female homosexual conduct, noting that the law in Singapore regularly distinguishes between men and women [para. 205]. The Court added that only Parliament could determine whether female homosexual conduct or adultery should be outlawed to protect public morals. The Court also dismissed the argument that section 377A infringes article 9(1) of the Constitution which protects the right to life and personal liberty, holding that the provision only criminalizes homosexual sexual conduct and not the identity of being a homosexual.

The Court also dismissed Ong’s argument that “there is now comprehensive scientific consensus that a person’s sexual orientation is immutable as it is biologically determined” [para. 266], and that the Court should overturn the decisions of Lim Meng Suang and Tan Eng Hong v. Attorney General [2013] 4 SLR 1059 in that respect. The Court held that the testimony from the expert witnesses demonstrated that there is “no single dominant factor or root cause of homosexuality” [para. 277], and that “the court is not the appropriate forum to seek a resolution of a scientific issue that remains controversial” [para. 279].

The Court also dismissed the plaintiffs’ argument that section 377A had become redundant following the Attorney General’s 2018 announcement that “where the conduct in question was between two consenting adults in a private place … absent other factors … prosecution [under section 377A] would not be in the public interest” [para. 285]. The Court held that this argument related to the enforcement of the provision and that a court required to determine the constitutionality of a provision is not concerned with the enforcement of that provision. It noted that even if the provision had fallen into disuse “the provision continues to serve its purpose of safeguarding public morality by showing societal moral disapproval of male homosexual acts” [para. 298].

Accordingly, the Court dismissed the application, upholding the validity of section 377A.

---