M. Ravi's oral submission to High Court on behalf of plaintiff Tan Eng Hong (6 March 2013)

IN THE HIGH COURT OF THE REPUBLIC OF SINGAPORE Originating Summons No. 994 of 2010 Between TAN ENG HONG

(NRIC No. SXXXXXXXX)…Plaintiff And ATTORNEY-GENERAL

(No ID No. exists)…Defendant SPEAKING NOTE ON BEHALF OF THE PLAINTIFF Introduction

1. Your Honour, this case raises questions of the constitutional validity of section 377A of the Penal Code, under which Mr Tan was arrested and detained in 2010.

2. To the extent that s. 377A criminalises consensual intimacy between adult men, we contend that it is a breach of the fundamental rules of natural justice and the rule of law, and therefore not ‘law’ within the meaning of Article 9 of the Constitution, and a violation of the Article 12 protection of equality before the law and equal protection of the law.

3. Any other conduct that it may capture such as non-consensual acts, public acts or acts involving minors are already – and more appropriately – covered under other provisions of the Penal Code [s 375, 376A Penal Code, s 20 Miscellaneous Offences Act]. 4. The Plaintiff makes two broad arguments:

a. Firstly, s. 377A is inherently absurd, arbitrary, vague and discriminatory and as such offends the fundamental, overarching requirements of the rule of law and natural justice. It does not possess the required qualities to amount to a ‘law’ within the meaning of Article 9 of the Constitution. It is thus void even in the absence of the Article 12 protection of equality before the law and equal protection of the law;

b. Secondly, the Court should find that section 377A violates Article 12 of the Constitution. This argument can be broken down into six main points:

i. The presumption of constitutionality and deference to the Legislature on which the AG relies, while important constitutional principles and valid starting points, are displaced in this case;

ii. While it is the Legislature’s role to make social policy and to provide a legal framework for balancing competing interests, it is the duty of the Court to interpret, protect and uphold the fundamental rights and freedoms in the Constitution as the supreme law of Singapore, binding on all persons and branches of Government. Ultimately it is for the courts to ensure that where a balance is being struck between competing rights and/or interests, such balancing does not offend the Constitution;

iii. Section 377A violates Article 12 in that it:

1) provides for different treatment in similar circumstances;

2) discloses no intelligible differentia since:

it is inherently uncertain what range of acts will fall within its ambit at any given time; and

it is based on a fundamental flaw in arbitrarily criminalising only certain forms of consensual human intimacy;

3) bears no rational relation to a valid State object;

iv. In determining whether there is a rational relation to a State object, the Court can and must consider whether there is a fundamental arbitrariness in the object itself. It would render Article 12 meaningless and Courts would be unable to perform their constitutional role of upholding it if such object were completely shielded from judicial review; v. The purported State objects of protecting public morality and public health as posited by the AG are ill-founded and an inherent breach of Article 12. Unlike other fundamental liberties in the Constitution, Article 12 rights are not subject to a public morality and public health exception. In any event, the relation between 377A and those purported objects is arbitrary rather than rational.

vi. International and comparative law aligns with and supports the Plaintiff’s Article 12 arguments in consistently finding that criminalising people on the basis of their identity is a breach of the universal principle of equality before the law and equal protection of the law. Rule of Law and Natural Justice

5. The Republic of Singapore is a constitutional democracy. The fundamental rules of natural justice and the rule of law form an inherent part of any such democratic society, including Singapore and other Commonwealth countries [Yong Vui Kong, Tab 38, para. 16;Venice Commission, Report on the Rule of Law, Tab 63A, paras. 16, 29, 34; Chng Suan Tze, Tab 7, para. 86]. The Rule of Law lies at the heart of the UN. “Promoting the rule of law at the national and international levels is at the heart of the United Nations’ mission.” (http://www.un.org/en/ruleoflaw/index.shtml). The Secretary General has affirmed, “[The Rule of Law] requires measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency."The Rule of Law Coordination and Resource Group(S/2004/616) Report of the Secretary-General on the Rule of Law and Transitional Justice inConflict and Post-Conflict Societies

6. These overarching rules apply even in the absence of express constitutional protections such as are contained in Part IV of our Constitution.

7. In AXA General Insurance Ltd and Others v The Lord Advocate and Others, [2012] 1 AC 868 (“AXA”), a seven-judge panel of the UK Supreme Court unanimously held that the UK judiciary may, through unwritten principles of the common law (as opposed to express legislation such as the Human Rights Act), strike down primary legislation of the devolved Scottish legislature for being contrary to the rule of law. This was because the UK Parliament which devolved powers to the Scottish legislature never intended the Scottish legislature to pass laws contrary to the rule of law:- [51] per Lord Steyn: It is not entirely unthinkable that a government which has that power may seek to use it to abolish judicial review or to diminish the role of the courts in protecting the interests of the individual... Whether this is likely to happen is not the point. It is enough that it might conceivably do so. The rule of law requires that the judges must retain the power to insist that legislation of that extreme kind is not law which the courts will recognise.

[97] per Lord Brown: There can be decisions - to take a familiar extreme example, a blatantly discriminatory decision directed at red-headed people - where, irrespective of any limitation on the purposes for which the decision-maker might act, a court would regard what has been done as irrational, because of the way in which the decision operated. If a devolved Parliament or Assembly were ever to enact such a measure, I would have thought it capable of challenge, if not under the Human Rights Convention, then as offending against fundamental rights or the rule of law, at the very core of which are principles of equality of treatment. [153] per Lord Reed: Parliament cannot be taken to have intended to establish a body which was free to abrogate fundamental rights or to violate the rule of law. 8. If even a sovereign Parliament such as the UK’s may be judicially restrained, by the unwritten principles of the common law, from enacting legislation that violates the rule of law, the case for the unwritten principles of the rule of law controlling legislation in Singapore, where the Constitution and not Parliament is sovereign, is even more compelling. Our constitutional framers would never have contemplated granting the Singapore Legislature constitutional authority to pass legislation that was fundamentally contrary to the rule of law, irrespective of whether such legislation breaches any of the express provisions under Part IV of the Constitution. This is the true meaning of the “fundamental rules of natural justice that were part and parcel of the common law of England at the enactment of the Constitution” alluded to by the Privy Council in Ong Ah Chuan. 9. In the context of the Constitution, the Privy Council stated in Ong Ah Chuan (cited by our Court of Appeal in Yong Vui Kong) that “It would have been taken for granted by the makers of the Constitution that the ‘law’ to which citizens could have recourse for the protection of fundamental liberties assured to them by the Constitution would be a system of law that did not flout [the] fundamental rules [of natural justice]. If it were otherwise it would be [a] misuse of language to speak of law as something which affords ‘protection’ for the individual in the enjoyment of his fundamental liberties, and the purported entrenchment (by article 5) of articles 9(1) and 12(1) would be little better than a mockery” [Ong Ah Chuan, Tab 22, para 26; Yong Vui Kong, Tab 38, para 14].

10. Thus, Art 9(1) of the Constitution does not justify all legislation as valid ‘law’, whatever its nature [Yong Vui Kong, Tab 38, para 16 and 75]. The Privy Council in confirming this in Ong Ah Chuan was clear that the mere existence of an Act of Parliament, however unfair, absurd or oppressive it may be, was not sufficient in itself to justify the law. 11. Because the overarching principles of the rule of law and natural justice operate constantly and at a general level in the administration of justice, I will begin my overview of the Plaintiff’s case with a summary of some key elements of the rules and their application to s. 377A, before moving onto our submissions under Article 12. 12. Firstly, there is a clear consensus that the rule of law prohibits arbitrary laws [Venice Commission Report on the Rule of Law, Tab 63A, paras. 41 and 52; Yong Vui Kong, Tab 38, para. 16]. The rule of law requires that the exercise of government authority should not be unconstrained and should not permit unreasonable actions or decisions. The retention of s.377A falls foul of both of these requirements. It does so both procedurally and substantively. [Venice Commission, Report on the Rule of Law, Tab 63A, paras. 38, 52].

13. Secondly, the rule of law requires legal certainty, meaning that legal rules must be clear, written in intelligible language and sufficiently precise to enable individuals to regulate their conduct [Venice Commission, Report on the Rule of Law, Tab 63A, para. 44, Annex para. 2]. This requirement stems from the fundamental common law principle, rooted in the Magna Carta and enshrined by Article 9(1) of our Constitution, that “a person is free to do as he wishes except that which is prohibited by law” [Cheong Seok Leng Supplemental Tab 4, para. 59].

14. Thirdly, the law cannot deny access to justice. And fourthly, equality before the law must be assured meaning that all individuals must be subject to the same laws [Venice Commission, Report on the Rule of Law, Tab 63A, paras. 53-58, 62-65]. 15. Because the rule of law and the rules of natural justice thrive in Singapore, a person cannot be deprived of his or her liberty under an Act of Parliament that is inherently arbitrary, absurd or vague or which fundamentally violates the right to equality before the law.

Arbitrariness, absurdity and vagueness of 377A

16. Contrary to these rules, s. 377A is arbitrary, absurd and vague, both on its face and in its operation [PP v Taw Cheng Kong, Tab 26, para. 80]. We highlight the following to illustrate this:

a. Firstly, the law was originally passed in the United Kingdom in 1885 as a private members’ amendment without any explanation or vote, contrary to the standards of legislative procedure, and imported into Singapore again with little explanation or debate.

b. Secondly, criminalising gay men for acts of private, adult consensual sexual intimacy and not criminalising lesbians or heterosexuals for the same and similar sexual intimacy is arbitrary.

c. Thirdly, it is impossible to know at any given time what all is captured by the term ‘gross indecency’. I will discuss these first three points (a, b and c) in more detail when I come to the Article 12 tests, since the analysis is similar. d. Fourthly, to the extent 377A criminalises some undefined set of acts of sexual intimacy between consenting adult men in private, it ‘affects a not insignificant portion of our community’ and renders them ‘unapprehended felons in the privacy of their homes’ [Tan Eng Hong (Standing), Tab 31, para. 184], simply on the basis of a natural attribute and fundamental part of their identity. There is no room for doubt that homosexual men are normal, productive, contributing members of our society and yet 377A tells them on a daily basis that their identity renders them criminals. The absurdity, arbitrariness and offensiveness in that is stark.

Tan Eng Hong at [184]:

"this provision affects the lives of a not insignificant portion of our community in a very real and intimate way. Such persons might plausibly assert that the continued existence of s 377A in our statute books causes them to be unapprehended felons in the privacy of their homes. The constitutionality or otherwise of s 377A is thus of real public interest."

e. Fifthly, in terms of access to justice, 377A at best makes gay male victims of sexual assault or domestic violence reluctant to report such crimes and at worst actively makes them criminals for such abuse, rather than victims deserving of the full force of police protection like any other victim of crime. Access to justice for gay male victims of theft involving an intimate partner is also illusory, as has played out in fact in this country [Tan Eng Hong (Standing), Tab 31, para. 184]. This is another point to which I will return under my Article 12 arguments.

f. Finally, 377A also arbitrarily subjects gay men to the risk of blackmail, for which the law would provide little comfort of redress [Wolfenden Report, Tab 49A, paras. 110-112].

17. The present case is thus in no way akin to Ong Ah Chuan and subsequent death penalty cases, which rejected claims of arbitrariness in the context of a quantitative boundary that was carefully drawn by the Legislature between different classes of dealers in the most dangerously addictive drugs. Rather, it involves safeguarding most adults from criminal sanction of their consensual human sexuality while mandating criminal penalties for other such adults.

18. By virtue of the fundamental absurdity, arbitrariness and vagueness of 377A, it is inconceivable that individuals should be subject to a loss of their very liberty – and to the daily, unrelenting knowledge that the threat of such loss exists regardless of any ephemeral non-enforcement policy that may be in place from time to time at the will of the Executive – as a result of it.

19. Taking all of this into account, we submit that this Court need not even consider the Article 12 reasonable classification test, since this overarching requirement of compliance with the fundamental rules of natural justice and the rule of law renders the provision void.

20. However, 377A is also a clear breach of Article 12, to which I will now turn. Article 12

Presumption of constitutionality, deference to Legislature and role of the Court

21. Firstly, the presumption of constitutionality and deference to the Legislature on which the AG largely rests his case, while important constitutional principles and valid starting points, can never be used to legitimise breaches of constitutionally entrenched rights, or those rights would be rendered meaningless and the administration of justice in Singapore would be brought into disrepute.

22. Jurisprudence from our Court of Appeal makes it clear that the fact of Parliament’s original enactment and continued retention of s.377A does not “relieve the court of its duty to determine whether [that provision] … relied upon to justify depriving a person of his … liberty [is] inconsistent with the Constitution and consequently void” [Ong Ah Chuan, Tab 22, para 25]. Rather, the Courts “in upholding the rule of law in Singapore, will … readily invalidate laws that derogate from the Constitution which is the supreme law of our land” [Public Prosecutor v Taw Cheng Kong, Tab 26, para. 89].

23. The Court of Appeal has also confirmed that the Constitution of Singapore must be given a generous and purposive interpretation, particularly where constitutional provisions protect fundamental human rights [Lord Bingham in Reyes cited in Yong Vui Kong, Tab 38, para. 51]. A right to equality before the law that is not rigorously applied to all citizens, particularly those who are at greatest risk of the tyranny of the majority, would render the right a mockery.

24. In any event, contrary to the AG’s assertion, the presumption of constitutionality has been displaced in this case. We note in particular the findings of our Court of Appeal in Tan Eng Hong (Standing) on the arbitrary impact of 377A in making criminals out of victims, whether in a domestic abuse situation, a sexual assault context or the reporting of a robbery or other crime by a male in a homosexual relationship. The Court specifically acknowledged, and noted that AG’s counsel has not refuted, that police in Singapore have given stern warnings under 377A to gay men reporting crimes, rather than investigating those crimes, which shows how patently arbitrary the provision’s operation has become [Tan Eng Hong (Standing), Tab 31, paras. 173, 174, 180 -184].

Tan Eng Hong, at [174]: “We note that Mr Abdullah, however, has not refuted Mr Ravi's statement that there have been cases of arrests resulting in stern warnings under s 377A for consensual sexual acts conducted in private (see above at [173] as well as below at [183]).

175 Just as individuals have a right not to be arrested, investigated and detained under an unconstitutional law, they also have a right not to be prosecuted under an unconstitutional law. In Ramalingam Ravinthran ([171] supra), it was held by this court at [17] that "a prosecution in breach of constitutionally-protected rights would be unconstitutional". Individuals who act in ways that may render them liable under unconstitutional laws ought not be placed in the unenviable position of waiting for an unconstitutional sword of Damocles to fall upon their fundamental rights.”

25. Moreover, there is information before the Court regarding the arbitrary and harmful impact of 377A on gay and bisexual men’s vulnerability to HIV and AIDS. By criminalising the gay population, outreach to vulnerable communities is hampered, prevention and treatment services are more difficult or risky for men to access, and at-risk men are left isolated and stigmatised [Roy Chan, Tab 70; Global Commission on HIV and the Law, Tab 50].

26. Together, this evidence clearly illustrates the arbitrary way in which 377A operates in Singapore, thereby displacing the presumption of constitutionality [Taw Cheng Kong, Tab 26, para. 80].

Unequal treatment

27. Art 12(1) of the Singapore Constitution assures to all individuals the right to equal treatment with other individuals in similar circumstances [Ong Ah Chuan, Tab 22, para. 35]. That adult consensual sexual relations – whether oral, anal, vaginal or simply intimate touching – are fully legal for heterosexuals and lesbians but criminalised for gay men is a patent example of different treatment in similar circumstances. The following judicial pronouncement of the Court of Appeal in Tan Eng Hong is instructive:

At [126]:

“It is uncontroverted that s 377A is a law which specifically targets sexually-active male homosexuals. The plain language of s 377A excludes both male-female acts and female-female acts.”

28. The Government has acknowledged in international human rights fora that the Article 12(1) rights apply to all persons regardless of sexual orientation. In its official response to an examination by the UN CEDAW Committee, the Government stated that:

“The principle of equality of all persons before the law is enshrined in the Constitution of the Republic of Singapore, regardless of gender, sexual orientation and gender identity. All persons in Singapore are entitled to the equal protection of the law…” [CEDAW, Tab 51, para 31.1] Intelligible differentia

29. Neither branch of the Article 12 test, namely an intelligible differentia and a rational relation to the State objective, has been met with 377A. Both of these tests must be satisfied for a provision to withstand the Article 12 scrutiny.

30. The meaning of intelligible differentia was discussed by both the High Court and Court of Appeal in Taw Cheng Kong. In essence, the differentia must “distinguish between persons that are grouped together from others left out of the group” [Taw Cheng Kong (CA), Tab 26, para. 58(b)(i)]. Put another way, “there must be a consistent means of identifying the persons discriminated against, for example, gender, age, race, religion, seniority of professional qualification or area of residence” [Taw Cheng Kong (HC), Tab 32, para. 33(b)].

31. Firstly, we note that the differentia in 377A is between ‘males who commit gross indecency’ as compared with both females who commit gross indecency and males whose conduct doesn’t qualify as gross indecency. Thus, unless it can be consistently known what qualifies as ‘gross indecency’, there is a fatal lack of intelligibility in the provision. There is also a differentia between acts of anal intercourse which are lawful for heterosexuals since 2007 by virtue of the repeal of s.377 but unlawful for gay men.

32. Applying the Taw Cheng Kong definitions, there is no consistent way of knowing at any given time what range of acts fall within 377A, and therefore who all will fall inside or outside the targeted group and when. Rooted in 19 th century Victorian morality, the parameters of gross indecency in 21 st century Singapore have understandably eluded any clear judicial definition. This Court in Ng Huat was only able to link it to what ‘any right-thinking member of the public’ would consider grossly indecent based on changing customs and morals over time [Tab 21, para. 27].

33. This is alarmingly vague. Is kissing included? Hugging? Holding hands? Looking at another man? Does it depend on the context or manner in which the acts occur or are such acts completely barred for all men at all times? Who decides and, short of finding oneself face to face with a criminal conviction, how does anyone know at any given time what the full parameters will be?

34. Such vagueness precludes any consistent means of identifying who is inside and outside the group from time to time for the purposes of the intelligible differentia test [Namit Sharma v Union of India, Supplemental BOA Tab 38, para 49] and clearly undermines the principle of legal certainty which is part and parcel of the rules of natural justice and the rule of law as discussed earlier, particularly where a person’s liberty is at stake. 35. Further, in the case of private adult consensual same-sex sexual relations, there is far from any common ‘right-thinking member of the public,’ with a large and ever evolving range of views on homosexuality including many whose view is ‘live and let live’ [2007 Parliamentary Debate, Speech of PM Lee, Tab 41, p. 38]. This is evident not just in Singapore but around the world, with laws such as s.377A being struck down by courts and legislatures alike, including in the UK, not least because the archaic morality which founded these laws has been far from incontrovertible for many years.

36. Secondly, wholly irrelevant or arbitrary differentia do not satisfy the intelligibility requirement. It is not enough merely for the discriminated group to be distinct from the non-discriminated group; the distinction must be material [Suneel Jatley, Supplemental BOA Tab 20, p. 282].

37. Differentiating between male ‘gross indecency’ and female ‘gross indecency’, and between anal intercourse by heterosexuals and anal intercourse by homosexuals, is unintelligible on this broader, purposive understanding of the term. Defining male-male intimacy as somehow demanding of criminal sanction when female-female intimacy is unsanctioned, despite representing the same divergence from heterosexual norms, is wholly arbitrary and irrational. Likewise for legalizing heterosexual anal intercourse whilst retaining sanctions for homosexual anal intercourse, which was the arbitrary result of the repeal of s 377 which criminalized “carnal intercourse against the order of nature”, a term that was recognized by Parliament to be ‘archaic’ vis-à-vis consensual heterosexual couples in 2007.

38. The differentia thus offends the Privy Council’s ruling in Ong Ah Chuan that any factor adopted by the Legislature as constituting a dissimilarity in circumstances so as to warrant differing treatment must not be purely arbitrary [Ong Ah Chuan, Tab 22, para 37].

Rational relation

39. With respect to the rational relation test, I submit that this Court is allowed and indeed required to look at the basic rationality of the Legislature’s objectives. Far from implying any overstepping into the domain of the Legislature, this merely ensures that discriminatory objects are not shielded from constitutional review simply by the existence of measures that are rationally related to those objects. If this were not the case, absurdity would result and the Constitutional guarantee of equality before the law and equal protection of the law would be rendered wholly illusory.

40. For example, would a law prohibiting disabled adults from standing for election or attending university, enacted in order to achieve a State objective of making it impossible for disabled people to enter politics or hold high-paying jobs, pass the Article 12 scrutiny simply because there is a rational relation between the measure and the object? What about a law prohibiting persons over 35 from marrying, enacted in order to discourage the founding of families later in life? Or an Act outlawing men with long hair from attending the opera because of a perception that long-haired men are inherently disrespectful and unsuited to cultural life? The measures would indeed help achieve the objectives, but surely the repugnance and arbitrariness of the objectives themselves and their clear violation of equality before the law would vitiate the constitutionality of the laws, or otherwise render Article 12(1) a mockery.

41. Contrary to the position taken by the Attorney-General, the proposition that the Court can review the arbitrariness of the object of the differentia is already part of Singapore law. In the Court of Appeal decision of PP v Taw Cheng Kong, the Court endorsed Indian jurisprudence in its pronouncement that the “rational relation” test is “well settled” [Tab 26, para. 56]. The Court did not express any divergence with any part of the Indian elucidation of the “rational relation” test. Indian authorities have, in fact, pronounced that “… the Court has also to consider the objective of such classification. If the objective be illogical, unfair and unjust, necessarily the classification will have to be held as unreasonable” [Naz Foundation, Tab 20, para. 88, relying on an older Indian authority Deepak Sibal v Punjab University, (1989) 2 SCC 145].

42. This proposition would also reconcile the “rational relation” test with the requirement that legislation must, at the very least, comply with the fundamental rules of natural justice.

43. As such, this Court can and must review the arbitrariness of the objects of an Act of Parliament as part of its Article 12 scrutiny.

44. For the reasons already discussed, s. 377A does not overcome this hurdle. At its core, the factor in this case that has been adopted by the Legislature as warranting differentiation is a perception that the majority of Singaporeans want to discriminate against a minority group within our population, and that our conservative society requires such discrimination. To say it another way, the real reason for 377A is to condone and perpetuate discrimination against a minority group in Singapore. The circularity of the argument is stark: the very justification for discriminatory treatment is the bare desire to discriminate. The Court of Appeal in Tan Eng Hong determined that in regard to s377A: At [125]:

“there was no obvious social objective that could be furthered by criminalising male but not female homosexual intercourse.”

Purported objects of 377A

45. The arbitrary and fundamentally discriminatory objects of 377A are evident throughout its history and this Court should be mindful of all the historical evidence. The provision is a British colonial legacy, enacted in the United Kingdom – the so-called Mother of all Parliaments – as a late-night after-thought and without any debate whatsoever, and introduced into our country, again without much consideration, almost a century ago. It is forever tainted both by this faulty process of enactment and by its roots in what are now widely discredited Victorian puritanical views of morality. That backdrop is both glaring and shocking.

46. The purported objects of 377A today as posited by learned counsel for the AG, namely protecting public morality and public health, are equally arbitrary and discriminatory. I will deal with each of these in turn.

Public morality

47. Firstly, the purported object of maintaining public morality and family values is largely contrived. While, unfortunately, there are certainly some members of our society that are prejudiced against sexual minorities (and indeed those attitudes will continue to exist regardless of the existence of s.377A), the attitude of many if not most Singaporeans as expressed by PM Lee is “live and let live”. It is simply a vocal minority that supports a continued agenda of institutionalised prejudice [2007 Parliamentary Debate, Speech of PM Lee, Tab 41, p. 38].

48. In any event, while individuals are free to hold negative views about minority groups in society – whether ethnic groups, religious groups or sexual minorities – they are not free to dictate who can and cannot enjoy the fundamental rights contained in the Constitution [Lawrence v Texas, Tab 14 of DBOA, p. 571]. The very purpose of Part IV of the Constitution was to withdraw certain subjects from the vicissitudes of political controversy, to ensure they are never the dominion of majority groups and public officials but rather legal guarantees to be safeguarded for all by the Courts. In other words, the right to equality before the law is never subject to the vote. 49. Further, unlike the constitutional provisions referenced in paragraph 28 of the AG’s submission, namely Articles 14 (freedom of speech, assembly and association) and (freedom of religion), which contain express exceptions to fundamental rights to protect public morality, there is no public morality exception to the right to equality before the law. This is because our Constitutional framers understood that, unlike certain manifestations of religion and certain forms of speech, there is no conceivable basis upon which public morality could ever require some citizens to be treated as less equal than others in the eyes of the law. [Note: This is also clear in international law, for example under the Siracusa Principles which confirm that the margin of discretion left to states in relation to any public morals exceptions “does not apply to the rule of non-discrimination as defined in the [International Covenant on Civil and Political Rights]” These Principles also prohibit arbitrariness in the application of limitations clauses: Siracusa Principles, I-A(7) and (9), I-B(v)].

50. Finally, even if the protection of public morality were a genuine and permissible object, 377A bears no rational relation to it. Criminalising a minority group for who they are does not advance public morality in Singapore. It merely perpetuates prejudice, which is quite a different thing. Further, it has no bearing on the existence of gay men in Singapore nor on the reality of their relationships. It simply operates to stigmatise them on a daily, lifelong basis.

51. The protection of ‘family values’ is also a red herring and there is no information before the court to substantiate the AG’s claim that such values are either determinative in the analysis of an individual’s Article 12 right to equal protection of the law or, indeed, even threatened by such equal protection. The only issue before this Court is whether such values – whomever they may be attributed to – justify criminalizing people who don’t share or conform to such values. The traditional family unit will in no way be altered or affected by upholding Article 12 so as to protect gay men from being criminalised for being who they are, and thus again there is no rational relation to this purported object.

52. In sum, a law that is ‘unfair, absurd or oppressive’ cannot stand and continuously threaten a ‘not insignificant portion of our community’ with a loss of their liberty – even if the legislature or some members of the public may wish it [Tan Eng Hong (Standing), Tab 31, para 184; Yong Vui Kong, Tab 38, para. 16].

At [184]:

“the continued existence of s 377A in our statute books causes them to be unapprehended felons in the privacy of their homes.”

Public health

53. The protection of public health is not and has never been the object of 377A, whether at its colonial origins or to the present day. Having regard to this hypothetical “object” would be entirely contrary to the purposive approach to statutory interpretation mandated by s 9A of the Interpretation Act. Our arguments in this respect are contained in our written submission and I will not belabour them here.

54. I will simply point out that, even if it were a real object of 377A, protection of public health is wholly inapplicable as a limitation to the right to equality before the law and can never be used to make certain groups unequal in the eyes of the law, as is the case with public morality exceptions discussed a moment ago.

55. Finally, even if it were a State object and even if it were a permissible limitation to Article 12 rights, the criminalisation of gay men bears no rational relation to it. The materials before the Court clearly illustrate that criminalisation is a barrier to the proper prevention and treatment of HIV and AIDS among the gay community [Plaintiff’s Main Submission, paras. 174-193]. Both local and international experts agree that “laws that criminalise and dehumanise populations at highest risk of HIV make them more vulnerable and drive them away from HIV, harm reduction and health services.” [Global Commission on HIV and the Law, Tab 50]

The ‘compromise’ of not proactively enforcing 377A

56. The so-called ‘compromise’ of retaining but not actively enforcing 377A is also an affront to the Constitution. It is not for the Legislature to balance one group’s right to equality before the law with another group’s desire to foreclose such equal protection. The Legislature is obligated to ensure its laws fully comply with the Constitution regardless of pressure from any interest group, and the Court is obligated to quash any laws that do not fulfil that obligation.

57. Indeed, the fallacy of this supposed ‘conciliatory approach’, as it has been euphemistically called by the AG [AG Submission, paras. 46-49], has already been highlighted by our Court of Appeal in the Tan Eng Hong standing decision, where it was observed that “‘no proactive enforcement’ is … of a totally different complexion from ‘no enforcement,’” and since ministerial statements do not bind the AG “no binding assurance could be given that no future prosecutions would ever be brought under s 377A” [paras. 179-181]. Further, the Court astutely noted that such ministerial statements “do not bind a future or even the same government” [para. 182].

Tan Eng Hong, at [182]:

“…there is nothing to suggest that the policy of the Government on s 377A will not be subject to change. Just as the AG cannot fetter his discretion on policy matters, the Executive cannot fetter its discretion on the same. Ministerial statements in Parliament on policy matters do not invariably bind a future or even the same government. The Executive's discretion to determine policy remains unfettered and it has the right to change its policy with regard to the enforcement of s 377A. Therefore, as long as s 377A remains in the statute books, the threat of prosecution under this section persists, as the facts of this case amply illustrate.”

58. Moreover, the AG’s argument ignores the Court of Appeal’s observation that Tan Eng Hong had, in fact, been “arrested, investigated, detained, and charged exclusively under s 377A” [Tab 36, para 186]. The promise of “no proactive enforcement” thus rings hollow in the particular facts of Tan’s case. It also rings hollow for those men who have been subject to “arrests resulting in stern warnings under 377A for consensual sexual acts conducted in private,” as the Court of Appeal found in Tan Eng Hong (Standing) [Tab 36, para 174]. At [181]:

“An even more fundamental point ought to be raised. As acknowledged by Mr Abdullah, ministerial statements do not have the force of law and do not bind the AG, who exercises his prosecutorial discretion independently. While we are confident that the AG will consider general governmental policy in exercising his discretion, this cannot be a fetter on his exercise of that discretion. Before this court, it was made abundantly clear that no binding assurance could be given that no future prosecutions would ever be brought under s 377A.”

59. The Attorney-General, in arguing that the Legislature made a policy decision which this court cannot review, attempts to introduce by the back door an argument the Court of Appeal already rejected at the front door. The Attorney-General in effect argues that the “constitutional” or “good faith” exercise of prosecutorial discretion under s 377A supplies the constitutionality of s 377A. With respect, the AG got the analysis the wrong way around. If s 377A is unconstitutional, all prosecutions made under s 377A are unconstitutional. There is no room for arguing that, because prosecutions under s 377A are “constitutional”, s 377A itself is therefore constitutional. As the Court of Appeal in Tan Eng Hong put it [para 171]: “All prosecutions are instantiations of the AG’s executive decisions. Where a prosecution is brought under an unconstitutional law, all decisions to prosecute under that law will also be unconstitutional. The unconstitutionality of the law is not derived from the unconstitutionality of the prosecutions brought under it; instead, it is the other way around.”

60. Finally, the so-called ‘compromise’ of retaining but not actively enforcing 377A illustrates the fallacy of the purported ‘public health’ object. If the Legislature actually believed it was necessary for the protection of public health to halt sexual intimacy between men, surely a policy of non-enforcement would be inimical to achieving the intended health outcome.

International and comparative law

61. The final point I will highlight, Your Honour, is the status of equality before the law and equal protection of the law in international law, and the extent to which criminalisation of consensual same-sex sexual relations has been recognised as violation of these principles.

62. In addition to national constitutions such as our own, a vast range of other instruments including the UN Charter, the Universal Declaration of Human Rights, multiple UN human rights treaties, and regional instruments such as the ASEAN Declaration on Human Rights to which Singapore is a signatory all enshrine the principle of equality of all persons before the law. 63. As already mentioned, our Government has confirmed in international fora that all persons in Singapore are entitled to the equal protection of the law, regardless of gender, sexual orientation and gender identity [CEDAW, Tab 51, para 31.1].

64. Further, a large and ever-increasing number of courts and tribunals in all regions of the world that have found that criminalising adult, consensual same-sex sexual relations, having differing ages of consent is a gross violation of this universal principle of equality before the law and equal protection of the law.

65. Equality before the law and equal protection of the law provisions have been dispositive in cases in countries as diverse as South Africa, India, America, Hong Kong, Nepal and Peru. While in some cases additional constitutional provisions unknown to Singapore, such as a right to privacy and broader notions of the right to life and liberty, were also violated, the breach of the right to equality before the law was not dependent on those other rights and criminalisation was consistently held to violate the right to equality before the law as a standalone right. 66. Thus, unlike the death penalty cases in Singapore, where virtually all the comparative case law rejected by our Courts was based on constitutional protections that are absent in our Constitution (namely, protection against inhuman treatment) [Yong Vui Kong, Tab 38, para 50], the comparative jurisprudence on which we rely in this case is based on identical or substantively identical protections of the right to equality before the law and equal protection of the law.

67. To highlight just a few:

a. Lawrence v Texas, U.S. Supreme Court (2003), considering the Equal Protection Clause of the 14th Amendment to the U.S. Constitution: “The State cannot single out one identifiable class of citizens for punishment that does not apply to everyone else, with moral disapproval as the only asserted state interest for the law. The Texas sodomy statute subjects homosexuals to a lifelong penalty and stigma. A legislative classification that threatens the creation of an underclass … cannot be reconciled with the Equal Protection Clause.”

b. Decision STC-0023-2003-AI-TC, Constitutional Tribunal of Peru (2004), considering the equal protection clause of the Peruvian Constitution: The Tribunal struck down an article of the Code of Military Justice that prohibited ‘dishonest acts against nature with persons of the same sex’. It concluded that this was a violation of the equal protection clause of the Peruvian Constitution. The Tribunal stated that it was a violation of the principle of equality for the Code to criminalise only sexual conduct between partners of the same sex.

c. National Coalition for Gay and Lesbian Equality v Minister of Justice, South African Constitutional Court (1998), considering the equality before the law provision of the South African Constitution:

The Court unanimously found that the issue of gay relationships was not only a matter of protecting privacy rights, and a matter of dignity, but also a matter of affording equality before the law.

d. Naz Foundation, Delhi High Court (2010), considering the equal protection provision of the Indian Constitution:

In analysing the two-pronged test of intelligible differentia and rational relation, the Court found that criminalisation violated the constitutional protection of the right to equality before the law and equal protection of the law because it was a legislative classification that was both arbitrary and unreasonable.

68. All of this illustrates the principle of equality before the law as a general principle of international law and the criminalisation of sexual minorities as a clear contravention of that principle.

Conclusion

69. In conclusion, Your Honour, the Plaintiff humbly requests the Court to declare s. 377A unconstitutional by virtue of its contravention of both the overarching principles of the rule of law and natural justice, which must be adhered to for legislation to be valid ‘law’ under Article 9 of the Constitution, and the guarantee of equality before the law and equal protection of the law contained in Article 12.

70. Unlike the mandatory death penalty cases, a ruling in this case that criminalizing people on the basis of their identity is unconstitutional will have no impact on other legislation as there is no other example in Singapore where individuals are criminalized simply for being who they are. This case is an isolated and severe example of an arbitrary piece of legislation – imported from Britain almost a century ago – that permits putting people behind bars simply because of the private, consensual conduct that is inextricably linked to their human identity. DATED THIS 06 DAY OF MARCH 2013

_____________________

Counsel for the Plaintiff

Mr. M. Ravi

M/s L F Violet Netto