Colonial-era law that criminalises sexual conduct between consenting adult men remains intact following recent Singapore Court of Appeal decision

AuthorRebecca Preston, Secretary, LAWASIA Human Rights Committee

In the recent decision of Tan Seng Kee v Attorney-General and other appeals [2022] SGCA 16, the Singapore Court of Appeal (the Court) dismissed an appeal challenging the constitutional validity of section 377A of the Penal Code. This section criminalises sexual conduct, in public or private, between consenting adult men (where there is no incapacity to consent). The appellants contended that section 377A is inconsistent with Articles 9 (rights to life and personal liberty), 12 (equality before the law) and/or 14 (the right to freedom of expression) of the Constitution of the Republic of Singapore. The appeal was brought against the High Court decision in Ong Ming Johnson v Attorney-General and other matters [2020] SGHC 63, which found that section 377A does not violate the Constitution.

The decision
Having regard to the executive government’s representations that section 377A is not being enforced in practice, the Court held that the entirety of this provision is unenforceable unless and until the Attorney-General of the day provides clear notice that they (in their capacity as the Public Prosecutor) intend to proactively reassert their right to enforce section 377A by way of prosecution and will no longer abide by the current prosecutorial policy (of not enforcing section 377A). In these circumstances, the Court stated that the appellants ‘do not face any real and credible threat of prosecution under s 377A at this time’ and as such, do not have standing. The Court concluded that it was therefore ‘unnecessary to address the constitutional questions raised by the appellants’ (at [330]). The effect of this decision is that section 377A remains intact.

Disappointment among the human rights community

This decision has understandably been met with disappointment by the human rights community. Pink Dot SG, a Singapore-based LGBTQ+ advocacy group, expressed its profound disappointment at the decision, which it described as a ‘devastating blow to Singapore’s LGBTQ+ community’. It stated that the Court’s ‘acknowledgement that Section 377A is unenforceable only in the prosecutorial sense is cold comfort. Section 377A’s real impact lies in how it perpetuates discrimination across every aspect of life: at home, in schools, in the workplace, in our media, and even access to vital services like healthcare’. Pink Dot SG urged ‘Singapore’s leaders to act urgently and decisively to repeal this redundant law’.
Similarly, Ready4Repeal, a coalition of Singaporean LGBTQ+ organisations, stated that the decision ‘comes as a setback for all who were hoping for a resounding conclusion to this decades-long fight for equality’. The ‘retention of Section 377A means that LGBTQ+ Singaporeans continue to be harmed in fundamental ways: in health, housing, education, employment, and representation’. As highlighted by local advocacy groups, the decision ignores the myriad ways in which section 377A violates fundamental human rights.

Out of step with international jurisprudence
Of particular concern from a human rights perspective is the failure of the Court to recognise the duty of domestic courts to strive towards harmonising municipal law with international human rights law. Rather, the Court viewed its role as ‘simply to “say what the law is”’; observing that the ‘court is not a front-runner for social change or an architect of social policy’ (at [14]). This approach is at odds with recent jurisprudence in other Commonwealth countries, such as Belize, India, Seychelles and Botswana.
In India, for example, in 2018 the Supreme Court held that the equivalent provision of its penal code was unconstitutional, striking the law down altogether. Reflecting on the role of the Indian Supreme Court, Chief Justice Dipak Misra stated that it ‘is the duty of the courts to realize the constitutional vision of equal rights in consonance with the current demands and situations and not to read and interpret the same as per the standards of equality that existed decades ago…There is a constant need to transform the constitutional idealism into reality by fostering respect for human rights, promoting inclusion of pluralism, [and] bringing harmony, that is, unity amongst diversity’ (at [87]).
Such judicial statements highlight the important role played by courts in upholding and protecting constitutional and human rights. It is therefore disappointing that the Singaporean Court of Appeal did not view its role in this way. As Ready4Repeal stated, the ‘Court’s reluctance to address these issues head-on has resulted in a missed opportunity for true progress to be made’.
The decision is also at odds with international human rights law jurisprudence and the move globally towards respecting, upholding and protecting the rights of LGBTQI+ persons. In cases before the UN Human Rights Committee and the UN Committee on the Elimination of Discrimination against Women, the committees have found that laws criminalising sexual conduct between consenting adults violate human rights, including the rights to privacy and equality and non-discrimination, even where such laws are not enforced in practice (see Toonen v Australia (1994)) and most recently, Rosanna Flamer-Caldera v Sri Lanka (2022)). More generally, United Nations mechanisms, including the Office of the United Nations High Commissioner for Human Rights, have expressly urged states to repeal laws that criminalise consensual, same-sex relationships and punish people based on their sexual orientation.

The fight for equality must continue
While section 377A remains intact (which, as noted above, criminalises sexual conduct between consenting adult men), discrimination against the Singaporean LGBTQI+ community persists. The LAWASIA Human Rights Committee stands in solidarity with the Singaporean LGBTQI+ community and echoes their disappointment at the Court’s decision. We stand ready to support local advocacy groups in their fight for law reform to achieve equality and respect for the fundamental human rights of the Singaporean LGBTQI+ community.

Rebecca Preston
Secretary, Human Rights Committee | LAWASIA
Parliamentary Joint Committee on Human Rights, Canberra