Court of Appeal rules Section 377A stays but cannot be used to prosecute men for having gay sex

The ruling by a five-judge panel, delivered by Chief Justice Sundaresh Menon, follows constitutional challenges to the law brought by three men. PHOTO: ST FILE

SINGAPORE - The Court of Appeal on Monday (Feb 28) ruled that Section 377A of the Penal Code - which criminalises sex between men - stays on the books but cannot be used to prosecute men for having gay sex.

The court, led by Chief Justice Sundaresh Menon, held that Section 377A was “unenforceable in its entirety” until the Attorney-General of the day signals a change in the prosecutorial policy.

The five-judge panel dismissed challenges brought by three men who argued that the law should be struck down as it violates their constitutional rights.

The trio were: Dr Roy Tan Seng Kee, a retired general practitioner and an activist for lesbian, gay, bisexual and transgender (LGBT) rights; Mr Johnson Ong Ming, a disc jockey; and Mr Bryan Choong, the former executive director of LGBT non-profit organisation Oogachaga.

The apex court found that the three men do not currently face any real and credible threat of prosecution under Section 377A and therefore lack the legal standing to mount the constitutional challenges against the provision.

In a 149-page judgment, the court said the political backdrop to the retention of Section 377A in 2007 cannot be ignored in analysing the legality of the provision.

The law makes it a crime for a man, whether in public or in private, to commit any act of “gross indecency” with another man, and carries a jail term of up to two years.

In 2007, after a robust parliamentary debate on whether Section 377A should be repealed, Prime Minister Lee Hsien Loong said the status quo must remain but made it clear that the law would not be proactively enforced.

This was because the Government took the view that a balance had to be struck between accepting homosexual individuals as part of society and respecting the more traditional views of mainstream society, said the court.

The court said this “political compromise” took on legal significance in 2018, when Attorney-General Lucien Wong expressed a general policy of not prosecuting consenting adult men for private sexual acts.

The court held that Mr Wong’s representations is given legal force by the doctrine of substantive legitimate expectations.

In administrative law, a person may have a legitimate expectation of being treated in a certain way by public authorities, owing to representations made by the authorities.

The court said the exceptional circumstances surrounding the general non-enforcement of Section 377A call for a limited recognition of this doctrine.

The expectations of gay men that Section 377A will generally not be enforced in the context of private consensual acts merit legal protection, said the court.

The court said its decision preserves the legislative status quo on Section 377A while removing uncertainties faced by homosexual men.

“Our finding therefore gives practical legal effect to both the political compromise on Section 377A that the Government struck in 2007 and the legitimate expectation engendered by A-G Wong’s representations,” said the court.

Reacting to the court’s decision, Dr Tan described it as a “partial but significant victory for the LGBT community”. 

He said: “Although, on the surface, it may be disheartening that the apex court has not ruled Section 377A unconstitutional, it has however declared the statute ‘unenforceable’. This will have numerous legal and social ramifications that will play out in the months and years to come.”

Dr Tan said he has filed an application to the High Court seeking an order to compel the Cabinet to move a Bill to repeal Section 377A.

Mr Ong said: “I am disappointed with the outcome but the ruling does not mean the end of the community’s pursuit for equality.”

He added that it will take more time before the community finds full recognition and acceptance by policymakers and society.

LGBTQ movement Pink Dot SG said it was “profoundly disappointed” by the decision.
“The acknowledgement that Section 377A is unenforceable only in the prosecutorial sense is cold comfort,” it said in a statement.

In arguments before the apex court in January last year, the trio contended that Section 377A, which was enacted in 1938, should be struck down as it violates Article 12 of the Constitution, which guarantees equality before the law.

They argued that the law criminalises sex acts only between homosexual men, but not acts between homosexual women or heterosexuals.

They argued that men were being treated unequally because women cannot be punished for acts of gross indecency.

They also argued it was absurd to criminalise a particular sexual orientation when scientific evidence shows that sexual orientation cannot be voluntarily changed.

State counsel contended that the highly divisive issue of whether Section 377A should be repealed was for Parliament to decide.

Mr Ong was represented by Mr Eugene Thuraisingam, Mr Choong was represented by Senior Counsel Harpreet Singh Nehal, and Dr Tan was represented by Mr M. Ravi.


Key events 

2007: A petition to repeal Section 377A is presented to Parliament. After extensive debates, the law is retained but Prime Minister Lee Hsien Loong says it will not be proactively enforced.

2010: Mr Tan Eng Hong files a constitutional challenge against Section 377A. He was charged under the provision for engaging in oral sex with another man in the cubicle of a public toilet. The pair eventually plead guilty to committing an obscene act in a public place.

2012: Gay couple Gary Lim and Kenneth Chee file their own challenge against Section 377A.

2013: The High Court dismisses both challenges.

2014: The Court of Appeal rules that Section 377A is constitutional.

2018: Veteran diplomat Tommy Koh encourages the gay community to bring a class action to challenge the constitutionality of Section 377A, after India’s Supreme Court decriminalises consensual gay sex.

Disc jockey Johnson Ong Ming files a fresh constitutional challenge. 

Former Attorneys-General Walter Woon and V. K. Rajah make separate comments that it was not desirable for the Government and Parliament to direct the Public Prosecutor not to prosecute offences under Section 377A.

Attorney-General Lucien Wong issues a press statement that the Government has not curbed prosecutorial discretion for Section 377A.

LGBT rights advocate Bryan Choong files another constitutional challenge.

2019: Retired general practitioner Roy Tan files a third constitutional challenge.
Former Chief Justice Chan Sek Keong publishes a paper analysing court decision on Section 377A.

2020: The High Court dismisses all three challenges.

2022: The Court of Appeal rules Section 377A is unenforceable and dismisses all three actions.

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