‘Political compromise’ on 377A must be upheld, says Apex Court as legal challenges dismissed
SINGAPORE - The Court of Appeal on Monday (28 February) dismissed three legal challenges against the section of the Penal Code which criminalises sex between men.
The challenges against Section 377A of the Penal Code were mounted by Bryan Choong, 43, former executive director of non-profit Oogachaga, which works with lesbian, gay, bisexual, transgender and queer individuals; disc jockey Johnson Ong Ming, 44; and retired general practitioner Roy Tan Seng Kee, 62, whose lawyers argued before a five-judge panel on 25 January last year.
The appeal to the apex court came after a High Court judge dismissed the suit by the same three men in March 2020, on the basis that the Court of Appeal's decision delivered for similar constitutional challenges against 377A in 2014 was binding.
Section 377A states that, “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.”
On Monday, the five-judge apex court – comprising Chief Justice Sundaresh Menon and Justices Andrew Phang, Judith Prakash, Tay Yong Kwang and Steven Chong – said in its judgement that the political compromise on Section 377A must be properly upheld.
Alluding to what was previously elaborated by Attorney-General Lucien Wong in his capacity as a public prosecutor in 2018, the judges stressed, "AG Wong’s representations have engendered legitimate expectations which deserve legal protection so that the political compromise on S377A may be properly upheld."
To give full effect to the political compromise and AG Wong's representations in a "legally acceptable manner", the court ruled that the entirety of Section 377A is unenforceable.
However, this only applies unless and until the AG of the day provides clear notice that he intends to reassert his right to enforce Section 377A proactively by way of prosecution, or will no longer abide by the representations made by AG Wong in 2018.
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