Section 377A stays but is unenforceable, rules Court of Appeal

The Court of Appeal yesterday 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 provision's legality.

The law makes it a crime for a man to commit any act of "gross indecency" with another man. It 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In 2007, after a robust parliamentary debate on whether Section 377A should be repealed, Prime Minister Lee Hsien Loong said the status quo remains but the law would not be proactively enforced.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 adults for private sexual acts.

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

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

The expectations of gay men that Section 377A will not be enforced for consensual acts merit legal protection, said the court. It said its decision preserves the legislative status quo and removes 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.

Dr Tan described the court decision as a "partial but significant victory for the LGBT community".

He said: "Although... 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."

He said he has filed a court application 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.

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.

The trio argued that Section 377A, enacted in 1938, violates Article 12 of the Constitution, which guarantees equality before the law.

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.

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Key events

2007: After much debate in Parliament, Section 377A is retained with the assurance that it will not be proactively enforced.

2010: Mr Tan Eng Hong is charged under Section 377A and files a constitutional challenge against the provision.

2012: Gay couple Gary Lim and Kenneth Chee file their own challenge.

2013: The High Court dismisses both challenges.

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

2018: Veteran diplomat Tommy Koh urges a new court challenge, after India's top court decriminalises consensual gay sex. Disc jockey Johnson Ong Ming files a fresh challenge. Attorney-General Lucien Wong issues a statement in response to commentaries by his predecessors. LGBT rights advocate Bryan Choong also files a challenge.

2019: Retired doctor Roy Tan files a third challenge.

2020: The High Court dismisses all three challenges.

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