Your Honours, I wish to briefly address 5 points in reply.
Object of 377A
Firstly, I will address the issue of the object of 377A.
The Appellants have reviewed the historical documents circulated by the Court yesterday, for which we thank the Court as these archival documents were indeed not uncovered in our own research.
We agree with the points alluded to by the Court that it may well have been the position that s. 377A was never intended to criminalise consensual conduct between adult males in private such as in loving homosexual relationships of the kind that Mr Lim, Mr Chee or Mr Tan may enter into.
Our position is that the Court can refer to these documents, despite the objection of Mr Abdullah, as the function of the Court is to determine amongst others what the object of s. 377A is, in order that it may scrutinise that section in accordance with the relevant Constitutional tests.
Our Interpretation Act s. 9A confirms that in interpreting legislation the Court may take into account “any material” that may assist in determining the object or purpose of legislation. The fact that other documents ‘may’ have existed, as Mr Abdullah cautions, is mere speculation.
It would be inimical to justice if the court were simply to ignore documents on the historical record in construing a provision that is at best difficult for anyone to understand (including the parties to this proceeding and the Court, not to mention anyone trying to regulate their behaviour in accordance with it).
What the documents – taken as a whole – reveal is that:
1. Before the enactment of 377A (as evidenced in the 1936 Annual Report at page 856, paragraph 40), “widespread existence of male prostitution was discovered and reported to the Government.”
2. As evidenced in the Annual Report of 1937 page 835, the government resolved to institute “a policy … to stamp out this evil”.
3. In 1938, s. 377A was passed. It was said in the 1938 Annual Report [page 414, paragraph 48] that “male prostitution and other forms of beastliness were stamped out as and when opportunity occurred.” It was clear that this was done under force of law.
4. Given that it was recognised that “As the law now stands, such acts can only be dealt with, if at all, under the Minor Offences Ordinance, and then only if committed in public,” and that this Ordinance related to ‘importuning for immoral purposes’, it is clear that the new provision was intended to cover such conduct. The Oxford English Dictionary defines importuning as “Approaching (someone) to offer one’s services as a prostitute”.
Our submission is that to the extent the object of s. 377A was indeed to capture instances of male prostitution, it was never intended to criminalise consensual conduct between adult male couples not engaged in transactional sex. As such, it cannot include such consensual conduct today and what is needed for clarity and finality on this long-unresolved and vexed matter is for the court to declare, at a minimum, that s. 377A does not criminalise consensual sexual intimacy between adult males.
Thus, ‘gross indecency between males’ captures transactional sex and nothing more.
We further submit that, to the extent ‘gross indecency’ inadvertently captured other sexual conduct between males it was vastly over-inclusive and highly mischievous in its impact, and certainly would be today in the context of a written Constitution with fundamental rights.
Even if this Court is not minded to construe s. 377A with this limited purpose of prohibiting transactional sex, the Appellant relies on his main submission that the only other possible construction of the provision is that it targets male homosexual conduct out of pure animus and for no other reason. As such, it violates both Article 9 and Article 12 of our Constitution.
Art 12(1) versus 12(2)
My second point relates to Article 12.
Article 12(1) is not merely a sifting provision aimed at ensuring coherence for any type of classification outside of Article 12(2). To hold as such would be to go against the origins of equality before the law and equal protection of the law and all international and comparative authority interpreting such provisions.
Article 12(1) is a positive right: it expressly provides that all persons are entitled to equal protection of the law. The Hong Kong Court of Appeal in Yau [at paragraph Tab 38, paragraph 1] put it this way:
“Equality before the law is a fundamental human right (“the right to equality”). Equality is the antithesis of discrimination. The constitutional right to equality is in essence the right not to be discriminated against. It guarantees protection from discrimination.”
To empty Article 12(1) of its meaning in the way Mr Abdullah contends for would be to fail in this Court’s duty to give the Constitution a broad and purposive interpretation.
If Art 12(1) were merely aspirational, there would be no protection against discrimination for anyone who doesn’t fall within the small number of classes listed in Art 12(2). This would mean there is no constitutional protection for women, disabled people, etc. – if the Legislature chooses to overtly discriminate against them by writing a discriminatory law that is rationally related to its discriminatory objective, they remain fully outside the protection of the law in this country.
Surely that cannot be the result this Court wishes to impose.
Further, the government of Singapore, in its periodic reporting before the UN CEDAW Committee, clearly recognises that Art 12(1) contains substantive rights to equality. In its written address to the Committee – which I will hand up now to the Court – it stated correctly that:
“As stated in Article 12 of the Singapore Constitution, all Singaporean women enjoy equal rights as men.” It later said, in its written responses to the Committee’s List of Issues and Questions (Ms Barker’s Tab 136, para 31.1), that “the principle of equality before the law is enshrined in the Constitution …, regardless of gender, sexual orientation and gender identity. All persons in Singapore are entitled to the equal protection of the law, …”.
The reasonable classification test
My third point relates to the reasonable classification test.
As the Attorney General has stated, the classification in 377A is “males who engage in gross indecency with other males”. A fundamental part of that classification is the meaning of gross indecency in order to know who is engaging in it and who isn’t.
It has been suggested yesterday that it may cover consensual conduct, and it may not. It may be limited to prostitution, or it may not. It may cover anal and oral sex as covered under the now repealed s. 377, or it may not. It may cover simple acts like hugging or kissing, or it may not.
There is simply nothing intelligible about this at all, and even here today we cannot get to the bottom of what exactly s. 377A actually covers.
Mr Abdullah would have this court believe that there is no need for certainty as to who falls within this class because, as he said yesterday “when you see it you know it”. This is clearly wrong in law. As recognised by our courts in Taw Cheng Kong, it must be clear who is in the class and who is out. That is all but impossible here.
Legitimacy of state objective
My fourth point is on the legitimacy of the State objective.
The AG has effectively conceded that the Court must be able to take account, in appropriate circumstances, of the legitimacy of a legislative objective. He has attempted to limit this to the administrative law test of Wedensbury reasonableness, but we submit that the proper test is one of constitutional law as applied by courts around the world.
Justice Loh in the Court below recognised the ability (and indeed requirement) of the Court to consider – in appropriate cases – the legitimacy of the State objective (paragraph 113-114 of the High Court judgment in Lim and Chee).
In Bachoo Mohan Singh at paragraph 158 [Tab 6], Your Honour Justice Phang noted:
“I hasten to add that every statutory
provision ought – especially one with such a long history as the present – to be accorded (as far as is possible) an updating approach which takes into account the impact for both the present as well as the future. … [importantly], s. 209 (the provision in question) had less than enlightened objectives … [namely] reasons which could today be considered anachronistic and, I dare say, entirely unacceptable because of the patronising assumptions made about Asian morality.”
In the event, Your Honour read the colonial provision more restrictively than it had been read historically. We submit that s.377A is obviously of an equally suspect providence and makes equally patronising assumptions about a segment of our society.
This principle that our courts can assess legislative legitimacy is also recognised by Constitutional law academic, Thio Li-ann. I am handing up to the Court an extract from Professor Thio’s leading text “A treatise on Singapore Constitutional Law” where in discussing the rational relation test she concludes in paragraph 13.087 at p. 728:
… the objective of the Act … must be a legitimate purpose.
The Indian Supreme Court – applying the reasonable classification test on which our own test is modelled – has also recognised that a consideration of the State objective is essential for the test to be meaningful. In the Nagpur Improvement Trust case (Tab 61 of Ms Barker’s bundles, paragraph 26), the court says
“The object itself cannot be discriminatory, for otherwise, for instance, if the object is to discriminate against one section of the minority the discrimination cannot be justified on the ground that there is a reasonable classification because it has rational relation to the object sought to be achieved.”
It is not surprising that in Singapore this inherent element of the test has not been discussed because in the few cases where Article 12(1) has been considered the objective of the legislation was clearly legitimate, for example the elimination of drug trafficking and corruption. For example, in Taw Cheng Kong, as I pointed out yesterday, the court recognised the ‘noble’ purpose of the Prevention of Corruption Act.
If this court were not able to consider the legitimacy of the State objective, Parliament would be able to validly enact legislation which, for example, prohibits women from entering employment simply because the idea of women working is considered abhorrent, or prohibiting women from driving, as is actually the case in Saudi Arabia. These are no more or less extreme examples than prohibiting by criminal legislation males from engaging in consensual intimacy that is lawful for everyone else.
The question arose yesterday of how this court is to assess legitimacy, or in other words what criteria it should properly consider.
We submit that, at a minimum, a bare desire to discriminate against an unpopular group simply because the conduct that defines the group is disliked cannot on any reasonable analysis qualify as a legitimate State objective.
The key lies in the fundamental purpose of the criminal law. The starting point must surely be that for the State to impose criminal sanctions on a particular form of conduct, it must be shown that such conduct is at least actually or potentially harmful in some way. Its purpose must be either to right a wrong done to a victim or to protect others. Otherwise, at best there is no rational foundation for the law and at worst it is motivated by pure animus.
This point is overwhelmingly supported by the jurisprudence of reputable courts around the world including in Hong Kong, Fiji, South Africa, the U.S. Supreme Court, the Supreme Court of Canada and the European Court of Human Rights, as outlined by Ms Barker yesterday. I will just re-state one simple yet eloquent passage from the Constitutional Court of South Africa [National Coalition, Tab 25, paragraph 37]:
“The enforcement of the private moral views of a section of the community, which are based to a large extent on no more than prejudice, cannot qualify as … a legitimate purpose.”
There is no need for the Appellants or this court to exhaustively outline any broader test. Each case will turn on its own facts and the constitutional authority of the courts to scrutinise legislation must remain sacrosanct.
Finally, I wish to correct a statement made yesterday by Mr Abdullah that the Appellants have argued for the application of a proportionality test. While proportionality, or in other words a requirement that even where there is a valid objective the legislature must restrict rights in the least intrusive way possible, is a commendable part of the legal analysis in many other jurisdictions, we have not relied on this and do not consider that we need to.
Policy versus constitutional law
My fifth and final point relates to Mr Abdullah’s position that the matters in issue in this case are questions of social policy best left to the legislature, rather than law.
The Appellant is not asking the court to decide questions of social policy. This case is squarely a matter of constitutional law. The legal issue the court is constitutionally mandated to determine is whether 377A unlawfully discriminates against a segment of our society.
The appellants have placed materials before the court which it must consider in determining whether 377A violates the constitution.
The form of this evidence is immaterial. Courts are regularly called upon to consider extra-legal material whether in the form of affidavits, expert reports, parliamentary statements, public or financial accounts or otherwise. The courts are also regularly called upon to examine concepts such as reasonableness or legitimacy, for instance in the very Wedensbury reasonableness test in administrative law that Mr Abdullah has been at pains to raise.
To characterise the potential violation of a fundamental right against a not insignificant segment of society as a matter of social “policy” that is up to the Legislature is to completely disregard the function of this Court.
What is before the Court are legal issues: does the criminalisation of a segment of society based on a fundamental characteristic violate the supreme law of this land.
We submit, Your Honours, that it clearly does, and therefore s. 377A should be struck down.