Singapore High court’s regressive judgement on homosexuality: A critique

Updated: Mar 14

Introduction

On 30th March, the Singapore high court upheld the law, which criminalised sex between males of consenting age by dismissing the appeals, which were filled in the court seeking the decriminalisation of Section 377A. The court reasoned that the law should be upheld on the grounds of public morality, as the majority of the country still finds sexual acts between men unpleasant and obscene.

Facts

The Plaint was filed by three homosexual men, which included, Mr. Ong Ming Johnson-an international disc jockey, Dr. Tan-a doctor and, Mr. Choong Chee Hong-director of a non-profit counselling and support organisation for LGBTQ+ community in Singapore.

Their application asserted that Section 377A of the Singapore Penal Code be declared unconstitutional, on the grounds that it violates Article 9, Article 12 and Article 14 of the Constitution of Singapore.

Origin of the law in Singapore

Criminalisation of Gay sex never emerged in South Asia, rather it was a result of the colonialization of most of the territories of South Asia. The criminalisation of sodomy began very early in England, precisely in the year 1290. In 1563, Queen Elizabeth re-enacted the Buggery Act of 1533, as a charter for the criminalisation of sodomy in British colonies.[1] The main reason for the implementation of such acts in the British colonies was to reduce the widespread male prostitution present in their territories. The act criminalised sodomy and punished the guilty person, with capital punishment. India was one of the first to comply with the orders of the crown, by enacting the Indian Penal Code of 1862, which was drafted in 1837 by Thomas Macaulay. The code consisted of Section 377 which states that “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal, shall be punished with transportation for life, or with imprisonment for a term which may extend to ten years, and shall also be liable to fine.".[2] In 1872, the Macaulay Code was also introduced in Singapore as part of the Straits Settlement Penal Code (Ord. 4 of 1871). Years later, the Criminal Law Amendment Act of 1885 was enacted which criminalised homosexuality between males of consenting age and stated that “Any male person who, in public or private, commits, or is a party to 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 guilty of a misdemeanour, and being convicted thereof shall be liable at the discretion of the court to be imprisoned for any term not exceeding two years, with or without hard labour ”.[3] A provision similar to this was enacted as a successor to the Straits Settlement Penal Code, by Section 3 of the Penal Code Amendment Ordinance. During the second reading of the bill, a clause was introduced, which later became Section 377A.

Analysis of judgement

The court upheld the law on the ground that it criminalizes acts of gross indecency rather than the identity or status of male homosexuals.[4] The main rationale behind the retention of the law was to safeguard public morality, as the majority of the public in Singapore contemplates homosexuality to be an offensive and nefarious act. This means, the court is proscribing an act that need not be necessarily prohibited, only because the majority of the people reckon homosexuality to be unscrupulous and indecent. It is humbly submitted that the court is bound to implement the Fundamental Rights of an individual and it cannot abuse such rights only because the majority of the country disagrees. The court seems to undermine the fact that sexual identity is considered an integral part of one’s individuality. It has been proven that sexual identity can change throughout an individual's life, and may or may not align with biological sex, sexual behaviour, or actual sexual orientation .[5]

The court explained that the law does not violate Article 12(1) of the Constitution of Singapore as it is neither under nor over-inclusive. As a result, it will be wrong on the part of the Court to adopt a broader test of proportionality. It should be noted that the concerned law is under-inclusive as it does not include homosexual women or adultery in its ambit. It is also over-inclusive because it includes acts done in private spaces, which does cause any social harm.

The concerned law violates an individual’s Right to Freedom of Speech and Expression. It was held in the case of Navtej Singh Johar v Union of India that- “Section 377 stood in between the LQBTQI community’s ability to fully realise their sexual identities and hence violated Right to Freedom of Speech and Expression under Article 19(1)A of the Indian Constitution”.[6] The court of Singapore, however, disagreed. The judge asseverated that- “A similar point may be made in addressing Navtej, where the Supreme Court of India ruled that the criminalisation of male homosexual conduct violates, among other rights, the right to freedom of expression, I am unable to agree with the reasoning of the Indian Supreme Court given that the court appeared to have accepted a wider meaning of what constitutes ‘expression’, extending beyond verbal communication of ideas, opinions or beliefs.” [7]

The court also believed that giving the term a wider interpretation would lead to absurd and unacceptable conclusions. The court stated that “More specifically, 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 characterised 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 criminalized.”[8] Per contra, it should be noted that every right has its reasonable restrictions, and the court is comparing two very dissimilar acts, as homosexuality does not cause any social harm. It involves private acts between two individuals with consent whereas acts such as incest, pedophilia, are forms of rape, these acts are performed without the consent of the other partner. Therefore, acts such as incest, pedophilia are immoral and any person carrying out such acts should be punished.

At last, the Court ruled that the presumption of constitutionality applies to Section 377A as the provision was extensively debated and retained by Parliament in 2007.[9] Since Legislation remains important in reflecting public sentiments and beliefs, any decision concerning public sentiments and beliefs thus should be left to the wisdom of the Parliament. It is submitted that the Judiciary is obligated to correct the errors of the legislature, but in this case, rather than rectifying the errors, the judiciary has left the onus of the decision on legislation.

Social and Political impacts

The subsistence of this law compromises the dignity of the men belonging to the LGBTQI community. It becomes an originator of shame and embarrassment for one’s sexual identity, which as mentioned before is naturally occurring and cannot be changed or altered with. The affected people are consistently humiliated by the fact that the mere expression of their sexuality is considered a crime. The unacceptance of homosexuality acts as a discouraging factor for people who are struggling with the acceptance of their sexuality. The existence of such laws has a bad effect on a homosexual man’s mental health and might make their lives dreadful and gruesome.

The government has explicitly stated that there will be no implementation of the law, but there is a possibility that the future elected government might start to implement the law, which makes this situation uncertain and faltering. These people might have to live under the constant threat of blackmail by the general public, future risk of unnecessary arrests and in some extreme cases, police brutality too.


Conclusion

The judgment of the Singapore High Court is constitutionally preposterous and morally egregious. While countries such as India, Botswana Mozambique, Seychelles, and Bhutan have recently decriminalised homosexuality, Singapore’s high courts’ decision acts as a major setback to the country’s progress. It is time that the situation is ameliorated by the decriminalisation of the law and discrimination of the LGBTQI community based on their sexual orientation by the government or the state is prohibited.


References

1. George Baylon Radics, Decolonizing Singapore's Sex Laws: Tracing Section 377A of Singapore's Penal Code,45 Colum. Hum. Rts. L. Rev. 57 (2013).

2. Indian Penal Code. Section 377. Unnatural Offences. 1860. At:

<www.vakilno1.com/bareacts/indianpenalcode/S377.htm>. Accessed 1 June 2020

3. Criminal Law Amendment, 1885

4. Ong Ming Johnson v. Attorney General, [2020] SGHC 63 (High Court of Singapore).

5. Rosario, M., Schrimshaw, E.W., Hunter, J. and Braun, L., 2006. Sexual identity development among lesbian, gay, and bisexual youths: Consistency and change over time. Journal of sex research, 43(1), pp.46-58.

6. Navtej Singh Johar v. Union of India, (2018) 10 SCC 1

7. Supra 4, at ¶ 10

8. Supra 4, at ¶ 263

9. Supra 4, at ¶ 152


Authors -

Sanchita Makhija

Student of Hidayatullah National Law University, Raipur

Sachet Makhija

Student of G H Raisoni Law College, Nagpur

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