Singapore HC judgement on S.377A


Court :
High Court of Singapore

Brief :
The following judgement deals with section 377A of the Penal Code of Singapore which criminalizes the act of gross indecency between male persons. The question before the High Court of Singapore for consideration was whether section 377A is constitutional or unconstitutional. The section basically criminalizes homosexuality between male persons.

Citation :
Ong Ming Johnson v. Attorney General

JUDEGMENT SUMMARY: Ong Ming Johnson v. Attorney General
DATE OF JUDGEMENT: 30th March 2020
COURT: High Court of Singapore
JUDGES: Justice See Kee Oon
REFERENCE: [2020] SGHC 63
PARTIES: Ong Ming Johnson (Plaintiff)
Attorney-General and other matters (Respondent)

SUBJECT: The following judgement deals with section 377A of the Penal Code of Singapore which criminalizes the act of gross indecency between male persons. The question before the High Court of Singapore for consideration was whether section 377A is constitutional or unconstitutional. The section basically criminalizes homosexuality between male persons.

AN OVERVIEW:

1. The High Court of Singapore in the present case had clubbed together three applications and combined it to form a single petition.

2. The judgement analyzes the three applications which lie at the origin of this judgement. In the first application,[1] Mr Ong Ming Johnsonis an international disc jockey. Mr. Ong had contended that s.377Aof the Penal Codewas inconsistentwith Art 9(1) of the Constitution of Singapore as it is absurd and arbitrary in criminalizing persons for their identity.Further, it violates Art 14(1)(a) of the Constitution as the criminalisation of sex between men limited the ability of homosexual men to freely express their sexual orientation and exchange ideas pertaining to sexuality and sexual orientation.

3. In the second application[2] by Mr Choong Chee Hong, whowas an Executive Director of Oogachaga Counselling and Support, it was contended that s.377A is inconsistent with Art 14 of the Constitution as it impermissibly restricts the freedom of a class of Singapore citizens to express consensual acts of sexual intimacy by criminalizing such acts.

4. In the third application,[3 Dr Tan, who is a doctor by profession, it was contended s.377A on the grounds that it violates Arts 9(1), 12(1) and 14 of the Constitution.

IMPORTANT PROVISIONS:

Constitution of Singapore:

  • Article 9(1)- No person shall be deprived of his life or personal liberty save in accordance with law.
  • Article 12(1)- All persons are equal before the law and entitled to the equal protection of the law.
  • Article 14(1)(a)-every citizen of Singapore has the right to freedom of speech and expression

Penal Code:

· Section 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.

ISSUES:

The following are the major issues framed by the High Court-

· Whether the presumption of constitutionality applies to s.377A?

· Whether, for the purposes of Art 12 of the Constitution, the reasonable classification test is met and intelligible differentia exists in s.377A?

· Whether there is a non-derogable right to freedom of expression under Art 14 of the Constitution which encompasses sexual orientation and sexual preference?

· Whether s.377A criminalizes a person for their identity?

ANALYSIS OF THE JUDGEMENT:

In a time where countries across the globe have started accepting homosexuality as opposed to calling it a mental disorder, the High Court of Singapore has taken a rather orthodox view. In this judgment, the court has dealt with several provisions of the constitution of Singapore in a bid to answer whether s.377 is discriminatory or not.

1. One of the major arguments from the plaintiff’s side was that s.377A was introduced in the High court with the view of curtailing rampant male prostitution. To support their argument, the plaintiffs had relied on books written by Hyam and Purcell as "historical sources” indicating that the only purpose of s.377A was to deal with male prostitution. However, Justice See Kee Oon while disregarding the statement, pointed out that the books quoted by the plaintiff’s were based on hearsay anecdotes. Justice Oon goes on to state that, ‘they do not go so far as to provide support for the argument that combating "rampant male prostitution” was the sole purpose or object of introducing s.377A.’The court has stated that the purpose of s.377A is to safeguard public morals generally and reflect societal morality. The differentia in s 377A serves to criminalize only acts of gross indecency between male persons.

2. The plaintiffs argued that s.377A was contrary to Art 12(1) of the Constitution.This particular article of the constitution talks about intelligible differentia and is a counter part of Article 14 under the Indian Constitution. Art. 12 offers the concept of intelligible differentia and reasonable classification test. The reasonable classification test therefore contemplates examining whether: (1) there is an intelligible differentia; and (2) the intelligible differentia has a rational relation to the object sought to be achieved by the legislation. Plaintiffs argued that there is no intelligible differentia as the main purpose behind the s.377A is discrimination as it only criminalizes male-male sexual conduct and not male-female or female-female conduct. The judge has clarified that the s.377Aprovides a clear differentia: it is targeted at homosexual acts between males, as opposed to sexual acts between females or between males and females, but the question remains whether targeting the male population in such a way is unreasonable and incoherent. To answer this, the court had stated that it does not find this differentia "patently unreasonable”. While comparing this to what the judges have stated in the landmark Indian case of Navtej Singh Johar v. Union of India, there is stark distinction. In Navtej Singh Johar’s case, the court has stated that "discrimination against an individual on the basis of their sexual orientation is deeply offensive to the dignity and self-worth of the individual”. The court in the latter case has also held s.377 of the India Penal Code is arbitrary pertaining to the homosexuality clause. The Singapore High Court on the other hand has held that it cannot be said that there was no intelligible differentia in s.377A while quoting the case of Lim Meng Suang CA, where it was held that the differentia in s.377A was logical and coherent.

3. The Court in the present judgement has also quoted the Navtej Singh Johar’s case and has expressed their strong disagreement. While deciding whether Art. 14(1)(a) has been affected or not, the court turned to Navtej Singh’s case and stated that "the court appeared to have accepted a wider meaning of what constitutes "expression”, extending beyond verbal communication of ideas, opinions or beliefs”. This meant that in the opinion of the judge, the Indian court had taken a much liberal view in extending the meaning of freedom of expression as "an expansive interpretation can potentially lead to absurd outcomes”.The judge has also stated that, "sexual offences such as incest, pedophilia, necrophilia, or bestiality can arguably be covered by the Art 14(1)(a) umbrella as protected forms of ‘sexual expression’, on the premise that these acts can be characterized as mere expressions of sexual preference according to the idiosyncrasies of the individual. This surely cannot be correct, at least not in the Singapore context where these acts remain criminalised.”Here, the court has failed to understand that freedom of expression is always subject to reasonable restriction, and while consensual male-male conduct should not fall under the category of restriction, acts like bestiality, pedophilia, necrophilia etc. should. In Navtej Singh Johar’s judgement the court opined that the phrase reasonable restriction connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature and s.377 (of the Indian Penal Code) cannot be justified as a reasonable restriction under art. 19(2) on the basis of public or societal morality, since it is subjective.

4. The court has stated that s.377A does not make a male homosexual a potential offender purely on account of his homosexual orientation. Th person’s identity or status is not an element of the offence and does not trigger the Actus Reus of the offence. The actus reusconsists of the performance of any homosexual act with another man. Hence sexual orientation per se, or whether the male person in question identifies himself as bisexual, heterosexual or homosexual, is completely irrelevant. This means that s.377A only criminalizes the act of sexual intercourse between two men and not the sexual orientation in itself. The court has also stated that many rights enshrined in the Constitution are qualified and not absolute and unenumerated rights are not capable of specific protection, when the plaintiff’s called for protection of homosexuals on the basis of their homosexual identity, and asking for an unqualified constitutional right to "personal liberty”. In Navtej Singh Johar’s case the Indian Supreme Court held that "the right to life and personal liberty affords protection to every citizen or non-citizen, irrespective of their identity or orientation, without any discrimination”.

CONCLUSION:

The approach adopted by the High Court of Singapore is orthodox and regressive on several levels. While the court has made it clear that homosexuality as a sexual orientation is not a crime, any sexual activity between two men would definitely fall under the criminal category. Justice Blackmun in the case of Bowers, Attorney General of Georgia v. Hardwick et al., has observed that "sexual intimacy is a sensitive, key relationship of human existence, central to family life, community welfare and the development of human personality”. Sexual intimacy has been considered an integral part of human relation and by criminalizing the same between two men, the court has discriminated the LGBTQ population of the country. Further, the court on several occasions held that the purpose behind implementation of such a legislation by the parliament is to preserve the public morality from any gross indecency between male persons. This is inherently discriminatory in nature as it draws a clear line of distinction between male-male sexual relations and female-male or female-female sexual conduct. The court had made reference to Navtej Singh Johar’s case and commented that the Supreme Court has given a wider meaning to what constitutes as "expression”. By making such a comment, the court has failed to understand the very essence of Navtej Singh Johar’s case, i.e., that a person’s sexual orientation and their sexual preference falls within the meaning of freedom of expression irrespective of the fact whether they belong to the LGBTQ community or not. In a time where a country like India has let go of archaic and discriminatory legislation, which was formed by the Britishers 100 years ago, the same shall be adopted by more and more countries. The people belonging to the LGBTQ community have equal right to freedom to live their lives with dignity as any other citizen.

[1] Ong Ming Johnson v. Attorney General OS 1114/2018
[2] Choong Chee Hong v. Attorney General OS 1436/2018
[3] Tan Seng Kee v. Attorney General OS 1176/2019

 

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on 07 April 2020
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