IN THE COURT OF APPEAL OF THE REPUBLIC OF SINGAPORE
Civil Appeal No. 125 of 2013
Between TAN ENG HONG
In the matter of Originating Summons No 994 of 2010
TAN ENG HONG
(NRIC No XXXXXXXXX)
APPELLANT’S SKELETAL SUBMISSIONS
Filed this 18 day of March 2014
Solicitors for the Appellant Solicitors for the Respondent
Mr M Ravi Mr Aedit Abdullah SC
Ms Neo Xiulin Sherlyn Mr Jeremy Yeo Shenglong
M/S L.F. Violet Netto
101 Upper Cross Street #05-13 Singapore 058357 Ref: MR.6362.13
1 Upper Pickering Street
Record of Appeal Appellant’s Core Bundle Appellants Bundle of Authorities
Appellant’s Second Supplementary Bundle of Authorities Appellant’s Case
Appellant’s Reply Respondent’s Case Tab
1. The present appeal concerns the proper approach to important Constitutional protections under Articles 9 and 12 of the Constitution. The appeal is brought by a homosexual man who seeks the vindication not only of his own fundamental rights but also those of a “not insignificant portion of our community^, who are afiected by this law in a '"very real and intimate way^ (Tan Ens Hons (Standins) at )’
2. The inpugned provision, S.377A of the Penal Code，is a provision that offends not only the dignity of homosexual men within Singapore, but also the value afforded to fundamental rights of personal liberty and equality within Singapore in general
3. The Respondent’s position on this appeal suffers from three princ^al flaws:
a. First, it feils to have proper regard to the role and duties of the Court in 叩holding constitutional rights;
b. Secondly, and related^, its sole attempt to offer a “rational” justification for acarrct the measure under challenge —by reference to arguments of 4tpublic morality” -betrays a misunderstanding of how that concept is property to be applied in a constitutional system, and wrongly equates the concept with “popular” morality or asserted majoritarian public opinion;
c. Thirdly, it feils to have proper regard to the fundamental inportance of sexual orientation as a human characteristic. It is inpossible to reconcile with the Government’s own statement, in 2011, to the UN Committee . on the Elimination of Discrimination Against Women, that 认[t]he 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, and have equal access to basic resources such as education, housing and healthcare. Like heterosexuals, homosexuals are free to lead their lives and pursue their social activities.”
The correct approach to the proper role of the Courts in constitutional systems such as ours was reflected in the judgment of the South African Constitutional Court in State v Makwanyane  3 SA 39\(“Makwanvane”) at : “if public opinion were to be decisive there would be no need for constitutional adjudication ... this would be a return to Parliamentary sovereignty and a retreat from the new legal order ... the very reason for establishing the new legal order and for vesting the power of judicial review of all legislation in the courts was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic processr This passage was itself cited with approval by the Privy Council in Reyes (Patrick) v The Queen, (Privy Council A Belize)  2 AC 235 (“Revest at .
B) The fundamental nature of sexual orientatioiL, including homosexual sexual orientation
Sexual orientation, whether heterosexual or homosexual, is a fundamental part of the make-up of a human being. It is not something that is chosen but is experienced, arising without conscious choice or wE As a fundamental aspect of human experience and an attribute that cannot be changed at ail, or at least not without unacceptably high personal cost, it should be afforded the dignity and protection afforded to other essential characteristics, at least as a basis for rejecting negative prohibitions backed by criminal sanctions, rather than for conferring positive state benefits.
The Appellant submits that the Judge below erred in that he approached the question of the nature of homosexuality as something needing to be established as immutable, as a matter of evidence, on the balance of probabilities. The Appellant submits that in fact:
a. Sexual orientation, whether heterosexual or homosexual, can property be considered to be a self-evident phenomenon It is not a matter of choice, any more than it is a choice for heterosexual men to be attracted to women and heterosexual women to be attracted to men
b. Alternatively, if the nature of homosexual sexual orientation is something which the Appellant bore the burden of proving:
l All the Appellant needed to show was that homosexuality is a fundamental aspect of human personality. The question of causation, why homosexual sexual orientation arises in some but not in others, is not to the point
ii. If the orientation was to be established as a matter of evidence, the applicable burden which the Appellant needed to satisfy was to demonstrate a prima facie case, not a case on the balance of probabilities.
iii. Even if the Appellant did need to prove the fLmdamental nature of homosexual orientation or its immutability, this was in feet clearly satisfied on the balance of probabilities, as the overwhelming preponderance of evidence before the Judge s叩ported that conclusiorL It is notable that ex Minister Mentor Mr Lee Kuan Yew, Prine Minister Mr Lee Hsien Loong, the Singapore Ministry of Health and Health Promotion Board have all taken the position that sexual orientation is a fimdamental attribute. (Appellant’s Case at [14(a)]; Appellant’s Rep^ at , ). G C) S.377A violates Article 9 of the Constitution
Scope of Article 9(1) and its application in the present case
7. The courts have long recognised that Article 9 renders unlawful any deprivation of personal liberty unless it is authorised by a legal rule which is clear and precise, and which is not perverse for example by being arbitrary and absurd (Appellant5 s case paragraph 18).
8. The three grounds upon which S.377A feils to meet the standard of legality such as to constitute “law3’ within the meaning of Article 9 are (Appellant’s case paragraph 19):
a. First, it is ixpermissibly vague in the scope of activities it purports to prohibit. b. Second, it is arbitrary, in that the criminal penalty it inposes serves no rational purpose in theory or in practice.
c. Third, it is absurd in that it criminalises a not insignificant portion of our community purefy for possessing of a core aspect of their identity that is either wholfy unchangeable or suppressible onfy at a great personal cost, which no modem society governed by a Constitution protective of fimdamental rights should exact.
9. Before addressing each of these grounds in turn, the Appellant addresses the Respondent’s arguments on the proper approach to Article 9.
10. First, the Respondent’s suggestion (Respondent’s Case,  - ) that the meaning of Article 9(1) is constrained by the subsequent subsections of Article 9 is flawed. Article 9(1) provides for the general substantive right to life and personal liberty. The subsequent subsections are concerned with specific matters such as arrests, detentions，exceptions in cases of enemy aliens and contempt of Parliament, but there is nothing in those subsections which limits Article 9(1) itself
11. Second, the Respondent’s attenpt to advance a narrow and restrictive interpretation of the concept of “lav/’ within Article 9(1) is equalfy flawed. The Respondent seeks to suggest that the requirement of legality under Article 9 has no substantive content (Respondent’s Case,  - ). It has not, however, identified what the concept of “law” in Article 9(1) actually means on that analysis.
D 12. One of the Respondent’s key arguments on Article 9(1) is that (l) it uses different wording from that used in similar provisions in the Constitutions of the United States and India, in particular by referring to “personal liberty” rather than simply E “liberty” and by requiring that any interference be “in accordance with law” rather than complying with “due process” or procedure established by law',\ and (ii) it can therefore be inferred that its drafters intended it to depart from those F provisions in extent and effect
13. These arguments do not assist the Respondent. First, the Constitution is a document protecting fimdamental rights and must therefore be given a “generous and purposive” interpretation (per Lord Diplock in Ons Ah Chuan v Public
Prosecutor「1979-19801 SLR(R) 710 (uOns Ah Chuan”、at  and Lord Bingham in Reyes at ). That being so, it is inappropriate to seek to limit its RC,   ABA T 30，  7 of 20 effect by mere speculation as to the reasons for differences between its text and A that of other constitutions. 14. Second, if such conparisons are relevant，the feet that the Constitution requires interferences to be “in accordance with law'7 (rather than merefy, as in India’s Constitution, to comply with "'procedure established by !aw,r) militates against the Respondent’s position that Article 9(1) has no substantive content. Third, the Respondent advances no reason of princple why the prohibition against deprivation of personal liberty" other than in accordance with law in Article 9(1) should be read as strictly limited to physical restrictions on the person (and the Appellant supports the arguments raised in this regard in the joined appeal CA 54/2013 including in relation to Lo Pui Sang — see Lim Chee  ff). Even if it should be so read, this case does in feet concern the lawfulness of a physical restriction on the Appellant, since he was arrested and &ced inprisonment by reference to S.377A (it also concerns physical restrictions on all other homosexual men arrested and prosecuted by reference to it given the mandatoiy penalty of inprisonment).
16. Furthermore, the Respondent’s interpretation of Article 9 invites this Court to overrule long-settled precedent, in. particular the cases of Ons Ah Chuan and Yons Vui Korm v Public Prosecutor「20101 3 SLR 489 f'Towg Vui KonH which clearfy establish that the test of legality under Article 9(1) encon^asses questions of the absurdity or arbitrariness of a law‘ The Respondent seeks to circumvent this line of authority by dismissing it as no more than “judicial gloss”
(Respondent’s Case, ). This approach feils to have adequate regard to the A quality and substance of reasoning in both those judgments.
17. As set out in the Appellant’s Case at , those cases specifically describe how the test of legality in Article 9(1) must be taken to provide substantive protection against arbitrariness and absurdity, or to guarantee the fundamental rules of natural justice, lest the “purported entrenchment (by article 5) of Arts 9(1) and 12(1〉…be little better, than a mockery.，, (Ons Ah Chuan). The Respondent’s descrption of Ons Ah Chuan as ilallud[mgJ to the possibility that other arbitrary laws would not be considered law1 within the meaning of Article 9(7广 is inadequate to reflect the reasoning in that case.
The Court in Yons VuiKons did not reject that proposition Indeed, it specifically referred to several cases relying upon Ons Ah Chuan, and recognised at  that “the expression “law” [in Article 9(1)] may include substantive law as well as procedural law ”• The submission it rejected was that Article 9(1) permitted the Court to assess whether the relevant law was “fair, just and reasonable' see paragraph . That is not the Appellant’s case.
F Vagueness of s.377A
19. The Respondent inplicitly accepts the Appellant’s argument that a legislative provision does not amount to “law” for the purpose of Article 9(1) if it is not Q sufficiently ascertainable and certain (see the Respondent’s admission that a “secret and unknowable” statute would not be regarded as law, at ，and its arguments advanced on the presunption that the principle that an offence can be so vague as to not be law under Article 9(1) is correct, at  of the Respondent’s Case).
20. This is consistent with the Judge’s approach to this issue (Appellant’s Case, ). The Respondent feils to engage with the Appellant’s reasons (Appellant's Case,  - ) why the Judge’s disposition on this issue on the basis that “all words are, to one extent or another, open to interpretation...,5 and that it was “arguable” whether hypotiietical exarrples of conduct such as kissing would come within the scope of S.377A, was wholly inadequate and flawed. The Respondent simply advances the bare assertion “There is no dispute that it covers consensual sexual acts between males, and any ambiguity can be resolved by the courts in the usual D way (Respondent’s Case, ). The Respondent does not even engage with the problem created by the feet that s.377A could, read literally, apply to render men holding hands, kissing or even those who are victims of sexual violence susceptible to prosecution, (Appellant，s case, -; see further below).
Arbitrariness of S.377A
21. The Appellant advances three grounds of arbitrariness of S.377A (Appellant’s Y Case,  - )，in the context of s. 377A5s only identified purpose being to signal disapproval of an ui^opular minority groip. Those grounds are that: a. First, it is impossible to signal disapproval of a state of af&irs without RC at  identifying with any precision what that state of afl&irs is.
b. Second, to the extent that signalling public disapproval ever constituted a valid justification it has now been abandoned as a result of public statements of organs of the State distancing themselves from the law.
c. Third, a provision whose onfy purpose is to target a politically uipopular group is arbitrary in princq?le and is precise^ the state of a^irs which Constitutional protections, and Constitutional Courts, are designed to protect against.
22. The Respondent provides no convincing answer to any of these grounds.
23. First, the Respondent essentially argues at - that it is sufficient that the moral animus of the statute is clear，even if its meaning is not. That is simply unsupportable. In a civilised legal system the meaning of a vague provision of the criminal ]aw_ cannot feli to be divined fi'om an analysis of the strength of moral feeling which at one time underlay it.
24.Second, the Respondent's contention (Respondent's Case, ) that the 2007 Parliamentary debates took place because the Government remained of the view that Singapore is a conservative society and public morality still required the disapprobation of homosexual acts, feils to engage with the inport of the Government’s statements that S.377A will not be proactively enforced. The Appellant submits that it is plain, that a measure which seeks to justify inhibiting consensual, non-harmfijl conduct such as is criminalised by S.377A on the basis that there is a legitimate public interest in e?q)ressing disapproval of the same cannot but be arbitrary where the Government has indicated a general, though non-binding, abandonment of the attenpt to enforce the ensuing prohibition
25. Third, the Respondent adopts the stark position (Respondent’s Case, ) that a provision whose only purpose is to target a politically unpopular groi^) would not be arbitrary as !tthe regulation of public morality is well within the legislative competence”. If that submission were right, the Constitution would provide no protection against majoiitarian oppression It is to distort the proper meaning of public morality to be applied in any constitutional system and to equate it with what might be termed popular morality, or the (perceived) opinion prevailing among the majority at any one time.
The correct approach reflected in the case law of e.g. the South African Constitutional Court (National Coalition at / Makwanyane st^ra), the U.S. Court (Lawrence at 571) and the Privy Council (Reves at  approving Makwanyane) is that as a matter of legal princ^le prevailing societal views or popular moral sentiment cannot suffice to make out a public morality justification unless the regulated conduct is shown to cause identifiable harm.
F Absurdity of S.377A
27. The Appellant advances the further argument that S.377A is absurd or otherwise perverse as it attenpts to coerce members of a minority, for no good reason, into G siq)pressing a core part of their identity (Appellant’s Case, ). The Appellant cited to the Court the wealth of material in, inter alia, statements of representatives of the Singaporean government, professional medical organisations and international jurisprudence to the effect that sexual orientation is a fundamental attribute, whatever its ultimate aetiology and that it is therefore absurd to criminalise the direct e?qpression of that fundamental attribute in consensual sexual activity between adult men, which has not been shown to give rise to any material harm-
28. As already pointed out the Respondent’s argument at  —  Ms to recognise any distinction between cases in which the object of the law serves a purpose, particularly the obviation ofharra, and cases where the law does nothing other than attack a minority because that minority is urpopular. It is the lack of any cognisable valid object in S.377A，combined with its drastic effects, that leads £) to the provision bemg tainted by absurdity.
29. The Respondent’s arguments on the basis that sexual orientation is shown to be numutable (Respondent’s Case,  — ) are also ill-founded. "F* 30. First, the suggestion (Respondent's Case, ) that the guarantee against deprivation of life and liberty save in accordance with law under Article 9(1) should be read, vis-a-vis immutable traits, as subject to the list of prohibited F classifications in the protection against discrimination in Article 12(2) is wholly flawed. Not onfy is Article 12(2) inapt to (and does not even purport to) control Article 12(1)，but a fortiori it is incapable to (and does not purport to) control the wholly separate Article 9(1).
31. Second, the Respondent is wrong to suggest at (Respondent’s Case, that the onfy relevant question is whether it would be impossible to conply with the law in question A law requiring young men to castrate themselves, would not be “impossible” to comply with but coripliance could only be achieved at a great and unacceptable personal cost.
32. Third, the Respondent’s analogy with kleptomania is inapt, as it fails to have regard to the harm princ^)le and the proper bounds of constitutional morality. There is an obvious protective puipose in seeking to criminalise theft, even if it inpacts upon people suffering from the psychiatric disorder of kleptomania. The Respondent has not identified any protective puipose in seeking to criminalise consensual male homosexual conduct.
33. Fourth, the Respondent fails (Respondent’s Case, ) to engage with the Appellant’s arguments that consensual same sex sexual conduct constitutes the direct expression of homosexual sexual orientation, and that a separation between sexual orientation as a matter of identity and as a matter of act is therefore untenable, just as it would be untenable to seek to draw a relevant distinction between heterosexual sexual orientation as a matter of identity and sexual acts between men and women
34. Fifth, even if (which is not accepted for all the reasons set out in the Appellant’s Case) immutability is the correct test in these circumstances, the Respondent feils to engage (Respondent’s Case, ) with the fact that the overwhelming preponderance of evidence before the Court below was in fevour of the conclusion that homosexual sexual orientation is an immutable characteristic.
A P) S.377A violates Article 12 of the Constitution
35. The Appellant contends (Appellant’s Case, -) that Article 12(1) provides a general guarantee of equality before the law and equal protection of the law. Article 12(1) applies to all persons and ensures that people in like situations aretreated alike under the law. It is an unjustifiable affiont to this constitutional protection to treat some adults engaged in consensual, non-harmful sexual intimacy in private as law abiding (heterosexuals and female homosexuals) andothers involved in precisely the same range of acts as criminals (male homosexuals).
36. The Respondent’s reliance on Article 12(2) to meet the Appellant’s case is
a. Article 12(2) does not eqiressly qualify the fondamental right to equality guaranteed by Article 12(1). Had this been the intention behind the Constitution that could easily have been provided for;
b. Article 12(2) cannot be read as impliedly qualifying that right. If that were the case the remarkable position would be that neither non-citizens nor r women would have any protection under Article 12(1).
c. The Respondent fails to engage with the legislative history of Singapore’s own Constitution, as set out at (Appellant's Case, [74b]), which identifies G that the first draft of what became Article 12(1) of our Constitution included reference to the equal protection of law being afforded to all persons “irrespective of religion, race, sex, language or place of birth
It therefore follows as a mattei' of lo^c that the removal of this wording was intended to make Article 12(1) of general application, rather than confining it to a list of elucidated categories such as that deployed in the B specific provision made under Article 12(2).
37. The Appellant set out in detail at (Appellant5s Case, -) the proper approach to a challenge under Article 12(1), by reference to princ^ile and authority. In short, discriminatory law onfy passes muster under Article 12(1) when it is shown that it is based on a reasonable or permissible classification.
This is an anterior question to the doctrine of classification (the question of intelligible differentia in classification and rational relation of that differentia to the object/purpose of the legislation), such being a doctrine “evolved by the courts E for practical purposes and read into the equality provisions" (Taw Chens Kons fCA) at ).
38. In response to this the Respondent sinply asserts that the Appellant’s arguments F constitute a ilwilful and blatant misreading” of Taw Chens Kons and that the Appellant's argument is “without basis in precedent”. That is demonstrably wrong, by reference not only to Taw Chens Kons but also to the other authorities referred to at (Appellant，s Case, -).
39. The Respondent’s approach to Article 12(1) is again stark, and involves reducing Article 12(1) simply to “a test of internal consistency — the Legislature's means must be connected to its objectives” (Respondent’s Case,  and ).
He submits in terrorem by reference to Indian and US jurisprudence that consideration of purpose will involve a whole suite of touchstones of review which are not present under the classification test. The Appellant simply observes that (i) what these Courts have considered is what amounts to arbitrariness, (if) the Singaporean Courts have also recognised that arbitrary law cannot be good law and (iii) our Courts are perfect^ well-equipped to consider whether a Jaw is arbitrary without the need to refer to the approach of courts overseas.
Lack of Intelligible Differentia
40. The Appellant argues (Appellant5 s Case, -), that S.377A discloses no intelligible differentia for two reasons:
a. First, it does not apply differentia based on either sex, sexual orientation or nature of sexual act. The Judge below adopted an overly linguistic approach to the meaning of intelligible differentia, as something which can be apprehended by the intellect as opposed to by the senses, rather than as something ascertainably identifying the persons discriminated against, which any differentia in S.377A feil to do.
b. Second, it is impaired by the vagueness of its formulation, disclosing no certain differentia, such that it is impossible to ascertain those captured by the differentia without an overlay of specialist legal interpretation.
41. The Respondent contends that the Appellant’s arguments as to the lack of intelligible differentia are inconsistent with his case as to the illegitimacy of the provision’s majoritarian animus. Again the Respondent confuses the meaning and application of S.377A with the public feeling that may have given rise to it. It is not inconsistent to contend that the section itself is vague and uncertain, but that despite its vagueness and uncertainty of scope, it was clearly motivated by a desire to attack same sex sexual conduct between men.
42. The examples given by the Respondent in (Respondent’s Case, ) are not analogous to the vagueness of the term gross indecency in S.377A. All of the exanples given by the Respondent involve closely defined and understood D contexts (for example an indecent assault on a girl under 16 clearty connotes an assault of a sexual nature on someone below the age at which they can consent to sexual conduct). The Judge below recognised the lack of certainty about the acts felling within the scope of s.377A at .
43. The Respondent’s arguments (Respondent’s Case, ) fail to recognise the established requirement that criminal provisions be ascertainable by the general public without specialist legal interpretation, and that judicial interpretation cannot be cure an inherent vagueness in the formulation of the provision of law.
The Illegitimacy of s.377A;s Purpose q 44. The Appellant contends (Appellant’s Case, -105]), that the Judge feiled to have due regard to the significance of constitutional morality (as 4'public morality” should be proper^ understood in this context) as opposed to 18 of 20 majority/popular/political perceptions in considering the purpose/object of S.377A. The Appellant submits that the Judge feiled to recognise the inherent illegitimacy of the legislative object of e叩ressing disgust/disapproval of sexual acts between men, feiling to recognise that without any identification of the harm disclosed by such conduct the object of the provision was srn^le animus against a disadvantaged minority group).
45. Although the Respondent refuses to accept that the Court is entitled to consider the purpose of legislation (Respondent’s Case, -), he continues at (Respondent’s Case, -) to set out a series of ill-conceived arguments why the disapprobation of homosexual conduct remains a permissible basis of £) legislation today.
46. First, having noted Parliament’s ability to legislate on matters of pub lie morality, he seeks to corrpare expressions of male homosexuality with other forms of conduct including necrophilia, prostitution and organ trading. That submission illustrates the weakness of the Respondent’s case. The obvious difference is that those other forms of conduct involve a real risk of personal injury or harm to F individuals / public health, and male homosexuality does not.
47. Second, tiie reasoning of the Delhi High Court in Naz Foundation, as to the arbitrariness of criminalising private sexual relations between consenting aduks absent any evidence of serious harm remains apposite. (Contrary to the Respondent’s assertion at Respondent’s Case , while the review petitions in that matter before the same two Supreme Court judges were dismissed the Appellant understands that a curative petition seeking review by an enlarged bench of the Indian Sipreme Court is imminently to be filed.).
48. Third, the Respondent conflates the feet that some individuals consider homosexual acts to be immoral with the public policy justification that must be shown for inposing the beliefe of a section of a the population 叩on the population as a whole.
49. Fourth, the Respondent seeks to suggest that although female homosexuality has now come to be seen as equivalent to male homosexuality (although no steps have been taken to criminalise it) S.377A should not be inpugned on the basis of its under-inclusive effect, as the “original harm is still valid”. The Respondent feils D to proffer any explanation for the harm said to eventuate.
50. Fifth, the Respondent feils to recognise that even which is denied, the Courts can only consider and intervene with regards to legislative purposes “in extreme circumstances”，the present case is one of those extreme circumstances for all the reasons set out above.
Lack of Rational Relation
51. The Appellant submits (Appellant’s Case, -)，that no rational relation is disclosed between the purpose/object of S.377A and the differentia underfying the section, to the extent that the same is even intelligible.
52. First, there is no rational basis for identifying male homosexuality but not female homosexuality. The Respondent now suggests that the two are morally equivalent but unconvincingly suggests that the lack of any initiative to criminalise female homosexuality should not be taken to suggest that S.377A lacks a proper object The under-inclusiveness of the section seriously impairs the Court’s ability to consider it to be rationally related to the onfy proffered aim of ejq?ressing moral disapproval of homosexuality.
53. Second, the purpose of S.377A is inherently discriminatory. The discriminatory effect is not a by-product of a separate aim but the veiy aim itself In the absence of any other identifiable objects such as obviation of harm or provision ofpifclic good, it is very difficult for the measure to satisfy the test of rational relationship.
54. Third, the measure is grossfy disproportionate to its stated aim of expressing disapproval of homosexual conduct, even if the same were a permissible purpose. For the sake of expressing disapproval it effects the criminalisation of consensual same sex intimacy between adult men, which is the concomitant of the fiuidainental attribute of homosexual sexual orientation The Respondent has no answer to this other than to urge deference to the legislature and the abandonment of the proper tenets of constitutional morality and adjudicatiorL
55. For the reasons above，the Appellant submits that this appeal must succeed. Dated this 18th day of March 2014
M. Ravi M/s L F Violet Netto Counsel for the Appellant