Singapore: Two separate cases before the Court of Appeal

Summary 

In the early 2010s two separate legal challenges by Singaporean gay men challenged the constitutionality of Singapore’s law criminalising ‘gross indecency between males’ on the basis that it violated their fundamental constitutional rights. Both cases were dismissed by the High Court in early 2013 and then by the Court of Appeal in 2014 on the basis, amongst others, that it should be the role of Parliament to change the gross indecency law rather than the courts. In 2018, a new set of challenges were mounted, bringing new arguments to bear against the constitutionality of the same gross indecency law. The High Court dismissed the claims in 2020 and the Court of Appeal did the same in 2022, but on very different grounds. The Court of Appeal declared a legally binding moratorium against any enforcement of the gross indecency law while indicating that, were the moratorium not in force, there was good reason to argue that the provision would breach the constitutional right to equality. In the following months, the Singaporean Government indicated that legislative reform was necessary in view of the vulnerability of the law to future legal challenges. Legislation was brought forward swiftly and passed on 29 November 2022, ending criminalisation of same-sex sexual activity in Singapore.   

Case Details 

Singapore’s law criminalising all male same-sex intimacy derived from an amendment to the British colonial Penal Code in 1938 that enacted section 377A, criminalising ‘male gross indecency’ with a maximum sentence of two years imprisonment. The provision was intended to strengthen and complement an earlier colonial law, s.377, which criminalised ‘carnal intercourse against the order of nature’, capturing any sexual conduct whether same-sex or opposite-sex that was not penile-vaginal sex. 

Section 377 was repealed by Parliament in 2007, largely on the basis that it improperly interfered with private, consensual opposite-sex sexual activity. However, Parliament left s.377A on the books such that all male same-sex conduct would continue to be criminalised. Thus, all opposite sex and all female same-sex conduct was legal in Singapore, but male same-sex conduct was criminalised even when taking place between consenting partners in private. 

Lim Meng Suang and another v Attorney-General and another ([2015] 1 SLR 26) 

Mr Tan was an adult male who was directly impacted by the existence of the gross indecency law after having been arrested and charged under it in 2010. The charge under s. 377A was later changed to one of public obscenity, a provision that does not differentiate on the basis of the sex or sexual orientation of the parties involved. However, Mr Tan was permitted by the Singapore Court of Appeal to continue his constitutional challenge against s.377A on the basis that he had been detained under an arguably unconstitutional law and should be allowed to have its constitutionality tested in the courts. He argued that the provision discriminated against gay and bisexual men in Singapore. 

Mr Lim and Mr Chee were an adult gay couple who brought a separate action in 2012 challenging s.377A, even though they have never been charged under it, on the basis that the provision stigmatised them as gay men and rendered them ‘unapprehended felons’ simply for being who they are. 

The Attorney General of Singapore defended s.377A in both cases, claiming that it accorded with Singaporean society’s views about male homosexuality and that it was up to Parliament to determine whether to repeal the provision. 

The two cases were heard separately by the High Court in 2013 and both were dismissed, with the Court holding that the courts must show deference to Parliament on issues of social policy. Both Mr Tan and Mr Lim and Mr Chee appealed those decisions, and the two appeals were joined and heard by the Court of Appeal in July 2014. The judgment of the Court was delivered on 29 October 2014, dismissing the appeals. The Court found that it could not act as a ‘mini-legislature’ and that equality before the law and equal protection of the law effectively do not protect LGBTI people, or indeed women, in Singapore. It held that changes to the law would be for Parliament to make.   

Tan Seng Kee and others v Attorney-General ([2022] SGCA 16) 

In 2018, two gay men, Johnson Ming Ong and Choong Chee Hong, filed fresh cases with the High Court of Singapore, again challenging the constitutionality of s377A. In 2019, gay activist and retired doctor, Dr Tan Seng Kee, filed a similar challenge. The cases were heard together in November 2019. The cases alleged that criminalising private, consensual sexual activity between males is unconstitutional and the gross indecency law should therefore be struck down. In 2020, the High Court dismissed the cases, finding that the existence of s.377A was not unconstitutional and did not breach the claimants’ rights. All of the parties filed appeals against this decision and the case was heard at the Court of Appeal in January 2021. 

In a decision handed down in February 2022, the Court declined to make findings on the constitutional questions before it. However, it made the significant ruling that s377A was unenforceable in its entirety. It did this by applying the doctrine of substantive legitimate expectation to the political statements made about arrests and prosecutions under s377A. Specifically, the Court laid out what it considered to be the ‘political package’ reached by a ‘political compromise’ from government and representations by Attorney General Wong. The Court identified the ‘political compromise’ as arising from statements by the Prime Minister and the Attorney General to the effect that s.377A would not be prosecuted in cases involving two consenting adults in a private place.  Having established that all same-sex conduct legitimately deserving of sanction (for example, the abuse of minors) is covered by alternative existing offences, the Court also extended the non-enforcement policy beyond the category described by the political statements and held that s.337A was unenforceable in its entirety.  

On that basis, the Court then decided that because the litigants no longer faced any credible threat of prosecution, they also no longer had legal standing to bring the case. It therefore declined to reach any concrete decision on whether s.377A was in violation of any constitutional rights. Significantly, however, it did indicate that on one possible interpretation of the law there was good reason to argue that s.377A would fall foul of the Article 12 right to equality.  

In the months following the Court of Appeal’s decision, the Singaporean Government was clear that the Court of Appeal’s decision had prompted it to reconsider its position on s.377A. In August 2022 the Prime Minister announced that the government would repeal s.377A. Parliament then passed the relevant legislative amendment on 29 November 2022, formally decriminalising consensual same-sex conduct between males. 

Applicable Law 

The claimants in all of these cases argued that s. 377A violated certain fundamental rights guaranteed in the Singaporean Constitution, which exist to protect the rights of all citizens including minority groups. These include: