By Anmol Ratan

In March 2020, the High Court of Singapore by the way of its decision in the case of Ong Ming Johnson v. Attorney-General and other matters upheld the validity of its colonial sodomy law, namely the Section 377A of the Singapore Penal Code yet again. This section criminalises the act of ‘gross indecency’ among two male persons by punishing them for a maximum term of 2 years. The issues raised in this case were premised on the constitutional validity and interpretation of Section 377A and its nature vis-e-vie the constitutional rights of liberty, equality and freedom of expression as envisaged under Articles 9(1), 12(1) and 14(1)(a) of the Constitution of Singapore. The judgement which was pronounced by Judge See Kee Oon justified the existence and legality of Section 377A on the arguably unfounded grounds of public morality and religious harmony. The court also opined that irrespective of pre-constitutional inception and implementation of this section, doctrine of presumption of constitutionality should still be applicable in favour of Section 377A.

While The Republic of Singapore is not the only nation in the world having this battle against sodomy laws such as Section 377, however, the case of Singapore becomes even more precarious due to some novel and extra-legal elements that have over the course of time factored in the ongoing legal and socio-political fight against its Section 377. At the end of the day, the court’s recent judgement fortifies and legalises the denial of access to the rights afforded to citizens of Singapore to the LGBT+ community, and in so access to justice.

The politics of human rights in Singapore

Being an island nation of about 5 million people, Singapore has become one of the most economically viable playgrounds for foreign investment and trade. However, in this noise of post-colonial commercial success and its ever-growing dollar economy, people’s cry for some of the most basic human rights and its protection has been stifled. With laws such as the Sedition Act, Maintenance of Religious Harmony Act, Societies Act etc., the People’s Action Party (PAP) headed government has been historically trading civil rights for economic prosperity and social stability, a bargain that remains to this day. Even with a democratic set-up, the Government and Parliament of Singapore follows and aggressively deploys a particular brand of ‘rule of law’ which primarily caters to its law-makers by solely ensuring people’s compliance to rules and procedures rather than harbouring and safeguarding their rights to even disagree let alone dissent.

While many of such contentions to discriminatory legislations and sodomy laws have been challenged across globe on the cornerstone of Constitutionality more than anything else, in Singapore, it is surprisingly the Constitution itself which has been providing an umbrage to such state driven human rights exploitations. Since the concept of popular referendum is absent from the Constitution of Singapore (except for determination of its sovereignty), the Constitution has been grounded on extremely susceptible and incredulous foundations. All it takes is two-thirds majority vote in the Parliament, which has a dominant majority of PAP members, to successfully amend the articles of Constitution and thereby change the foundational law of the land. With laws of Singapore being as status-quoist as it is,  it is not surprising that it was only in 2012 that Singapore’s Court of Appeal declared that gay men can challenge Section 377A without themselves being prosecuted for the same. It was only after this judgement that there were two subsequent challenges to Section 377A which have now led to this case of Ong-Ming Johnson v. Attorney General and others.

Can Section 377A sustain the two-pronged tests?

It was argued by Mr. Ong (one of the three plaintiffs) that Section 377A arbitrarily discriminated against male homosexuals and lacked intelligible differentia with a rational nexus and was thereby against Article 12 of the Singaporean Constitution. However, Justice See Kee Oon disagreed by stating that Section 377A undoubtedly provides a clear differentia. Referring to various gender-differential provisions in law, he asserted that the discrimination of male homosexuals as opposed to heterosexuals and female homosexuals to be reasonable enough on moral, ethical as well as political grounds.

The court’s rationale is fallacious and blatantly insensitive to the rights of the LGBTQ+ community in general, and homosexual men in specific. By using discriminatory statutes and laws in place as examples, the court tries to faulty justify the legitimacy of Section 377A. It is a well-established principle that the right to equality is subject to certain limitations. While the state has the power to ‘reasonably classify’ its populace, however, such classification must not be, what American legal Jurisprudence calls, ‘suspect’ classifications. By the way of upholding Section 377A, the court disregards and abrogates homosexual men’s right to equality by way of discriminating against them on the sole basis of sex, which is a suspect classification. It is also surprising to note that while the law prima facie seems to be anti-LGBTQ++, it is in its truest sense, a law against the homosexual men and some of their most basic rights. Section 377A, in no manner of its language or principle, alludes to criminalisation of any homosexual conducts of females, which makes it another contention of discrimination and suspect classification.

The court also refers to the failed legislative attempt of the Parliament to repeal Section 377 in 2007 to conclude that since the values and mores shaped in the Victorian-era had not fundamentally shifted even after effluxion of more than 50 years there is persistent societal disapproval of not just male homosexual conduct, as opposed to female homosexual conduct but also the impact the former has on the subsisting public morality. By the way of juxtaposing the legislative object and age-old morality against the modern-day application of such Constitutional rights, the court dismisses the aforementioned argument and holds Section 377A to be within the rightful ambit of Article 12 of the Constitution.

Is sexual expression is not an ‘expression’?

Subsequently, Section 377A was also contested to have violated the Article 14 of the Constitution which enumerates right to freedom of speech and expression. The plaintiffs were of the opinion that  right to expression under Article 14(1)(a) included and guaranteed, inter alia, the right to sexual expression. However, the court relying on the principle laid down in Public Prosecutor v. Lam Leng Hung and others, asserted that word ‘expression’ must only be understood in its original meaning to relate to freedom of speech encompassing matters of verbal nature. In a country with laws as strict as The Sedition Act, an absolute freedom of expression, even in the most verbal sense is an illusion. In addition to lacking a solid and firm jurisprudential background on freedom of expression, claiming sexuality to be a form of personal expression seems to be a far-fetched dream even in modern-day Singapore. Contrary to judgement of the Indian Supreme Court in the historic Navtej Singh Johan case, the Singaporean court held that expression of one’s sexuality was not the kind of verbal expression which was ought to be protected  under Article 14(1)(a). Thus, by restricting gay men the freedom of sexual expression, Section 377A did not abrogate the fundamental Article 14.

In addition to Article 14 and 12, Dr. Tan and Mr. Ong also challenged that Section 377A breached Right to life and personal liberty envisaged under Article 9(1) of the nation’s Constitution. Based the presumption that sexuality is immutable and biologically determined, the plaintiffs asserted that Section 377A violates Article 9(1) by criminalising persons on account of their ingrained identity or sexual orientation.

The unheard Privacy argument

While the arguments presented in this case draws stark parallels with the Suresh Kushal judgement of the Delhi High Court, the Singapore’s case, however seems to blindside and leaves one crucial and indispensable realm of rights untouched. From equality to freedom and liberty, out of all these constitutionally recognised human rights which had formed the foundational arguments for this entire challenge to Section 377A, what remained surprisingly unheard in the courtrooms was the proposition of right to one’s privacy and its blatant abrogation by the Section 377A. Does the state have the constitutional power and authority to interfere and decide what happens within one’s four-walls? Can the state restrict unharmful private activities of a person? Most important of all these questions is—why are citizen’s private acts being policed? It is also important to note that with the virtue of the Puttaswamy judgement, Right to Privacy was constitutionally recognised to be a part of Article 21 of the Indian Constitution, for Singapore, right to privacy could never make it to their Constitution and its people. Being a nation, which is driven by political optics and economy, civil liberties and human rights has never been Singapore’s obligation let alone its priority.

Conclusion

This judgement comes in the backdrop of what is claimed to be the ongoing LGBT rights movement of the Global East. While India had effaced Section 377 IPC, its own sodomy law in 2018, Taiwan’s Parliament has recently decided to legally recognise gay-marriages. Contrary to this, Singapore has surprisingly managed to sustain Section 377A in its statute books, primarily on the grounds of its conventional social mores and also Constitutional ideals. Uniquely, the Singaporean Constitution does not allude to ‘sexuality’ as a specific category that may receive legal recognition and constitutional status like religious and racial identities do. The High Court by way of this judgement has bypassed fundamental rights to freedom and liberty of the LGBT+ community and has upheld the Christian values of Victorian-era morality in a nation which is predominantly Buddhist by faith and globalised by economy. Thus, whether it’s the Article 12 which guarantees citizens equal protection or the Article 152(1) which caters to interests of minorities, Singapore’s minority and marginalised gay-identity formation has always been stillborn.

Our guest writer is Anmol Ratan, a third -year law student at the National Law School of India University in Bangalore.