Why Court of Appeal rejected arguments that Section 377A was unconstitutional

SINGAPORE - The Constitution is the supreme law of Singapore and any law enacted by Parliament which is inconsistent with the Constitution is considered void, or invalid.

Mr Tan Eng Hong and gay couple Mr Gary Lim and Mr Kenneth Chee contended that Section 377A contravened Articles 9 and 12 of the Constitution and so should be struck down. But the Court of Appeal on Wednesday rejected their arguments and ruled that Section 377A was constitutional.

Article 9 states that "no person shall be deprived of his life or personal liberty save in accordance with the law".

Senior Counsel Deborah Barker, acting for the couple, argued that the right to life and personal liberty under Article 9 should include a right to privacy and personal autonomy for a person to express love towards another human being. But the court rejected this interpretation, holding that the phrase "life or personal liberty" refers only to a person's freedom from an unlawful deprivation of life and unlawful incarceration.

Mr M Ravi, acting for Mr Tan, argued that Section 377A was so vague, arbitrary and absurd that it did not qualify as "law" under Article 9. The court disagreed that the phrase "act of gross indecency with another man" in Section 377A was vague. Also, the concept of indecency is found in other Singapore laws, such as the Women's Charter and the Children and Young Persons Act.

The court also rejected Mr Ravi's argument that Section 377A was absurd because it criminalised a minority based on a core aspect of their identity which was unchangeable. The court noted that there are still conflicting scientific views on whether sexual orientation is unchangeable so it was premature to express any conclusive views on it. In any case, the supposed unchangeability of sexual orientation is an "extra-legal" issue that is outside the remit of the court.

Article 12 states that "all persons are equal before the law and entitled to the equal protection of the law". It specifically forbids discrimination against Singapore citizens on grounds of religion, race, descent or place of birth.

While Article 12 guarantees equal protection, the courts have long held that lawmakers are allowed to pass laws that treat people differently - if it is based on a reasonable classification.

In Singapore, the courts have used what is known as the reasonable classification test to determine whether a statute that differentiates is consistent with Article 12. Under this test, a statute that differentiates is constitutional if the classification is based on an "intelligible differentia", meaning a distinguishing feature that is discernible, and if the differentia bears a rational relation to the objective of the law.

The court held that the classification prescribed by Section 377A - men who perform acts of gross indecency with other men - was based on an intelligible differentia.

After analysing historical documents on the enactment of Section 377A, the court ruled that there was a "complete coincidence" in the relation between that differentia and the purpose and objective of Section 377A, to enforce societal morality. As such, Section 377A passes legal muster under this test.

The court went on to note that Article 12 does not address the issues involved in Section 377A. While the provision specifically prohibits discrimination based on religion, race, descent or place of birth, the words "gender", "sex" and "sexual orientation" are noticeably absent.

selinal@sph.com.sg