High Court dismisses 3 constitutional challenges to Section 377A

Bryan Choong Chee Hoong, a former executive director of non-profit LGBTQ social support group Oogachaga, with his lawyers.
Bryan Choong Chee Hoong (in purple shirt), a former executive director of non-profit LGBTQ social support group Oogachaga, with his lawyers outside the Supreme Court building. (PHOTO: Facebook / Bryan Choong)

SINGAPORE — Three constitutional challenges to the Section 377A of Singapore’s Penal Code that were heard simultaneously in the High Court last year were dismissed by the High Court on Monday (30 March).

The challenges against the law, which criminalises sexual acts between men, were brought about by Bryan Choong Chee Hoong, 42, Johnson Ong Ming, 43, and Roy Tan Seng Kee, 61, who had asked the High Court to revisit the apex court’s decision in light of new evidence.

Lawyers for the three plaintiffs arrived in court on Monday at around 3pm and heard Justice See Kee Oon’s verdict and brief decision in chambers before exiting within 10 minutes. Ong and Choong’s lawyers declined comment when approached, while Tan’s lawyer, M Ravi, described that the decision as “shocking and astounding to the conscience”.

“It still criminalises (gays and bisexuals),” Ravi told reporters outside of the courtroom.

“You see members of the gay community who don’t have a control over the sexuality and they are going to be criminalised,” he added.

Asked about his next step, Ravi said he would work with his team to “study the prospect of an appeal”.

A more detailed grounds of decision will be released to lawyers at a later stage, he added.

In a statement issued by his lawyer, Choong said, “I am of course disappointed, but my eyes are firmly on the road ahead. I’ll be studying this judgment closely with my lawyers. For now, I want to thank them for their hard work and all well-wishers for their support.” Choong later told Yahoo News Singapore that he will be appealing the decision.

Ong’s lawyer Suang Wijaya later told Yahoo News Singapore, “Our client intends to appeal against the Honourable Justice See Kee Oon’s decision. We will carefully review the written judgment when it is released.”

The three applications

Over 13 and 20 November last year, the three plaintiffs argued that 377A was enacted in 1938 to curb commercial gay sex amongst British civil servants in colonial Singapore; that one’s sexual orientation cannot be changed; and that gay and bisexual men are “doubly criminalised” by the section.

The challenges came after India legalised gay sex in 2018 in a landmark ruling by its Supreme Court while Taiwan and Ecuador legalised same-sex marriage last year.

In Singapore, previous attempts to overturn the law have been unsuccessful, with the Court of Appeal dismissing two constitutional challenges brought about by gay couple Lim Meng Suang and Kenneth Chee Mun-Leon, and separately by Tan Eng Hong, in 2014.

Five years later, Choong, a former executive director of non-profit LGBTQ social support group Oogachaga, Ong, a disc jockey and music producer also known as DJ Big Kid, and Tan, a retired general practitioner and LGBT activist, sought to succeed where their predecessors had not, prompted by the decision from the Indian Supreme Court.

However the respondents in this case, the Attorney-General’s representatives, Deputy Chief Counsel Hui Choon Kuen and officers Denise Wong, Jeremy Yeo and Jamie Pang, had argued that the three constitutional challenges, are “apparently prompted by nothing more than a foreign judicial pronouncement based on (a) a written constitution that contains material differences from ours and (b) a judicial activist approach that is completely alien to our legal system.”

The Attorney-General’s Chambers (AGC) team argued that the High Court is bound by the Court of Appeal decision for the 2014 hearing, which found that Section 377A does not run foul of the Constitution. It stated that the scientific information regarding whether homosexuality was caused by nature or nurture remained unchanged.

The team argued that making an act an offence, even as individuals in society are more inclined to commit the acts, was not uncommon and cannot be considered “absurd and arbitrary”.

A kleptomaniac (someone with a mental inability to resist the urge to steal), for example, committed theft voluntarily, regardless of his inclination, the AGC said.

Choong’s lawyers, Harpreet Singh Nehal, Jordan Tan, Choo Zheng Xi, Pricilla Chia and Wong Thai Yong, argued that the legislative purpose of the law was never meant to target private, non-commercial sex between consenting men. If the law were applied to cover all consenting homosexuals, it would be overly broad in scope and unconstitutional, the lawyers said.

Ong’s lawyers Eugene Thuraisingam, Suang Wijaya and Johannes Hadi contended that the preponderance of scientific evidence point to human sexual orientation lying along a continuum, and that sexual orientation and/or attraction cannot be changed.

Ravi opined that gay and bisexual men are penalised on two levels - by the sexual act itself, and by not reporting these acts to the police.

Judge’s decision

In his brief grounds of decision, Justice See said that the Court of Appeal decision delivered for the 2014 hearing was binding. The judge said that the court had nevertheless reached the same conclusion as the Court of Appeal decision even after taking into account additional material put forth by the three challenges.

Section 377A was intended to safeguard public morals and enable enforcement and prosecution of all forms of gross indecency between males, said the judge, rejecting the argument that it was targeted solely at male prostitution when it was enacted in 1938.

The judge maintained that the section did not violate Article 12 - which guarantees equality and protection to all persons before the law - or Article 14(1)(a) of the Constitution, which is the right to freedom of expression.

The judge opined that there was no comprehensive scientific consensus as to whether a person’s sexual orientation was immutable and that the court was not the appropriate place to resolve a controversial scientific issue.

The enforcement of the law should also be separate from issues relating to its constitutionality, said the judge. He added that the legislation was not redundant simply because the law was not enforced in relation to consensual male homosexual activity in private. The legislation remained important in reflecting public sentiment and beliefs, he said.

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