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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

DEFENDANTS SUBMISSIONS

For the Plaintiff: Mr M Ravi

M/s L F Violet Netto 101 Upper Cross Street #05-45

People’s Park Centre Singapore 058357 Tel: 6533-8217 Fax: 6438-7597

For the Attorney-General:

Mr Aedit Abdullah,

SC Ms Neo Xiulin Sherlyn

Mr Jeremy Yeo Shenglong

Attorney-General’s Chambers

1 Coleman Street #10-00, The Adelphi Singapore 179803

Tel: 6332-1433

Fax: 6332-4685

Tan Eng Hong v Attorney-General

Originating Summons No 994 of 2010

Introduction[edit]

1 The Plaintiffs application seeks a pronouncement by the court that s 377A of the Penal Code (Cap 224,2008 Rev Ed) (“Penal Code”)(“s 377A,,)1 is unconstitutional through breach of Art 12 of the Constitution of the Republic of Singapore (“the Constitution,,),2 The Defendant will show to the Court that, to the contrary, applying a strong presumption of constitutionality of legislative provisions,nothing brought in by the Plaintiff shows sufficient reason to find that there has been breach of Art 12. Therefore, s 377A is constitutional, and remains good law.

Background facts and procedural history[edit]

2 The Plaintiff was arrested whilst engaging in oral sex with another male person in a public toilet. He was investigated and charged in court for an offence under s 377A (see District Arrest Case No 41402 of 2010). Section 377A provides the following:

Outrages on decency[edit]

377A. Any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to 2 years.

3 In the midst of the criminal proceedings, the Plaintiffs counsel filed the present application. Subsequently, the Public Prosecutor substituted the charge with one of committing an obscene act in public under s 294(a) of the Penal Code. The Plaintiff pleaded guilty to this charge on 15 December 2010 and was sentenced to a fine of $3,000.

The striking-out proceedings[edit]

4 The Attorney-General successfully applied before an Assistant Registrar to strike out this application (see Summons No 5063 of 2010). This order was upheld on appeal (see Registrar’s Appeal No 488 of 2010 and Tan Eng Hong v Attorney-General [2011] 3 SLR 320).3 However, on further appeal, the Court of Appeal overturned the order striking out this application (see Civil Appeal No 50 of 2011 and Tan Eng Hong v Attorney-General [2012] 4 SLR 476 [“Tan Eng Hong (CA/V

Issues[edit]

5 In Tan Eng Hong (CA) at [125], the Court of Appeal agreed with the judge below that there was an “arguable case” that s 377A engaged the Plaintiffs rights under Art 12(1) as “there was no obvious social objective that could be fmtliered by criminalising male but not female homosexual intercourse’,.

6 In the same decision at [185],the Court of Appeal framed the issues for argument in this matter as whether s 377A violates Art 12 of the Constitution in terms of:

(a) whether the classification is founded on an intelligible differentia; and

(b) whether the differentia bears a rational relation to the object sought to be achieved by s 377A.

It will be noted from [120] and [153] of the Court of Appears decision that this matter does not contemplate any breach of Art 9(1) of the Constitution in the sense of any novel wide interpretation of “life” and “personal liberty”,although Art 9(1) will be engaged if s 377A is found to violate Art 12. From [128] and [130] of that decision, it is also clear that Art 14 of the Constitution is not relevant to this matter.

7 In relation to the issues identified by the Court of Appeal, the Defendant will submit that:

(a) the classification in s 377A is founded on an intelligible differentia,

(b) as there is a strong presumption of constitutionality attaching to legislation, it is not shown that the differentia bears no rational relation to the object of s 377A,and

(c) that on account of this presumption, the differentia underlying s 377A bears a rational relation to the object sought by s 377A in the areas of:

(i) public morality and

(ii) public health.

Section 377A is founded on intelligible differentia[edit]

8 The differentiation in s 377A is simply between men,whose acts of gross indecency are criminalised under the section,and women, for whom comparable acts are not criminalised. The differentia is based on gender and it cannot be disputed that this is an “intelligible differentia” for the purposes of compliance with Art 12 as set out in Nguyen Tuong Van v Public Prosecutor [2005] 1 SLR(R) 103 5 at [70]. Persons within the group, that is, men committing acts of gross indecency, are distinguishable from those who are left out of the group caught by s 377A, namely women committing comparable acts: Malaysian Bar v Government of Malaysia [1987] 2 MLJ 165 at 170 [“Malaysian Bar^).

As there is a strong presumption of constitutionality attaching to legislation, it is not shown that the differentia bears no rational relation to the object of s 377A

9 The presumption of constitutionality is recognised by authorities in Singapore, and is an entrenched principle. It is submitted that in part at least, this presumption is a manifestation of the separation of powers. It is an acknowledgment that decisions that are polycentric and dependent on a balancing of multiple factors are best left to the branch of government best suited for it,namely the legislature. There is a strong presumption of constitutionality that applies to enacted legislation

10 The presumption was clearly endorsed by the Court of Appeal in Public Prosecutor v Taw Cheng Kong [1998] 2 SLR(R) 489 (Taw Cheng Kong)1 in the context of alleged violations of Art 12 of the Constitution. Before Taw Cheng Kong, this principle was already accepted in a number of cases such as the decision of Salleh Abas LP in Malaysian Bar. In that decision, the learned Lord President noted that legislation entails choice and differentiation between persons. With that background, the sustainability of the law must be assumed and the burden must lie on the person alleging unconstitutionality. His Lordship said,at 166-167, the following:

Any law made by a legislature must of necessity involve the making of a choice and differences as regards its application in terms of persons, time and territory. Since the legislature can create differences, the question is whether these differences are constitutional. The answer is this: if the basis of the difference has a reasonable connection with the object of the impugned legislation, the difference and therefore the law which contains such provision is constitutional and valid. If on the other hand there is no such relationship the difference is stigmatized as discriminatory and the impugned legislation is therefore unconstitutional and invalid. This is known as the doctrine of classification which has been judicially accepted as an integral part of the equal protection clause. Its classic rendering is well summarized in Lindsley v National Carbonic Gas Co (1911) 220 US 61, pp 76-79,55 L Ed 369 [this case should be cited as Lindsley v Natural Carbonic Gas Co], in the following terms:

1 The equal protection clause of the 14th amendment does not take from the state the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis, and therefore is purely arbitrary.

2 A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality.

3 When the classification in such a law is called in question) if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed.

4 One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary.

[Original emphasis removed,emphasis added in. italics and bold italics]

This standard was adopted by the Court of Appeal at [59] of Taw Cheng Kong.

11 At [60] of Taw Cheng Kong, the Court of Appeal also adopted the formulation used by Hashim Yeop A Sani J in Public Prosecutor v Su Liang Yu [1976] 2 MLJ 128 (“Su Liang JV,)8 at 130-131,that the court should lean in favour of constitutionality if it is possible to do so on any reasonable ground: [T]he first duty of the court which is really a rule of common sense is to examine the purpose and policy of the statute ... In its approach to the problem the court ought, prima facie, to lean in favour of constitutionality and should support the legislation if it is possible to do so on any reasonable ground and it is for the party who attacks the validity of the legislation to place all materials before the court to show either the enactment or the exercise of the power under it is arbitrary and unsupportable. [Emphasis added in italics and bold italics]

12 Similarly, at [78]—[79] of Taw Cheng Kong, the Court of Appeal endorsed the approach taken in Lee Keng Guan v Public Prosecutor [1977-1978] SLR(R) 78 (“Lee Keng Guan").9 In Lee Keng Guan at [19],Wee Chong Jin CJ relied on the Indian Supreme Court decision of Ram Krishna Dalmia v Justice Tendolkar AIR 1958 SC 538 (“Ram Krishna Dalmia^)10per S R Das CJ at 547-548 as follows:

The decisions of this court farther establish —

(b) that there is always a presumption in favour of the constitutionality of an enactment and this burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles;

(c) that it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds;

(e) that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the time and may assume every state of facts which can be conceived existing at the time of legislation;

(f) that while good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the. presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporation to hostile or discriminating legislation. [Emphasis added in italics and bold italics]

13 In Taw Cheng Kong itself at [80],the Court of Appeal further elaborated on the burden of one challenging constitutionality as follows: From [Lee Keng Guan] and applying the principles adopted, it seemed to us that, unless the law is plainly arbitrary on its face, postulating examples of arbitrariness would ordinarily not be helpful in rebutting the presumption of constitutionality. ... [T]o discharge the burden of rebutting the presumption, it will usually be necessary for the person challenging the law to adduce some material or factual evidence to show that it was enacted arbitrarily or had operated arbitrarily. Otherwise, there will be no practical difference between the presumption and the ordinary burden of proof on the person asserting unconstitutionality.

14 It is thus submitted that the scope of the presumption of constitutionality in the context of Art 12 of the Constitution is as follows:

(a) The burden of proving that a statute containing a differentiation violates Art 12 lies on the one alleging the violation (see all the authorities cited above);

(b) The burden takes the form of proving that either the enactment or operation of the statutory differentiation was arbitrary, or,alternatively, that it does not rest upon any reasonable basis (see Malaysian Bar at 167 and Su Liang Yu at 130-131). The discharge of this burden must usually take the form of adducing positive evidence of arbitrariness (see Taw Cheng Kong at [80]);

(c) Because the Court is entitled to and must assume any ground or state of facts at the time of statutory enactment, within reason, that would justify the classification (see Malaysian Bar at 166-167, Su Liang Yu at 130-131 and Lee Keng Guan at [19]), the burden must extend to positively disproving all such facts that would otherwise justify the classification. This is regardless of whether such facts have been established by evidence in the proceeding or assumed by the Court to exist as part of the presumption; and

(d) If there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality does not extend to always holding that there must be some undisclosed and unknown reasons justifying the statutory differentiation (see Lee Keng Guan at [19]).

The presumption of constitutionality is grounded in part at least on the recognition of the separation of powers which requires that statutory provisions duly enacted should not be found unconstitutional unless there are strong reasons shown

15 In determining whether a statutory provision is unconstitutional, the separation of powers enshrined in the Constitution must be observed. The legislature is entrusted by the Constitution with the making of decisions that balance multiple competing interests, many of which are not justiciable. Against that context,statutory provisions which are duly enacted should not be struck down unless strong reasons are shown. Otherwise, the Constitutional scheme vesting these powers in the legislative branch of government is upset.

16 Constitutional adjudication, including that relating to Art 12 of the Constitution, always requires engagement with the separation of powers doctrine. This separation is an important constitutional principle. It dictates that the judiciary should recognise its co-equality with the democratically-elected legislature and not override or frustrate proper legislative policy in its review of legislation (see Lee Hsien Loong v Review Publishing Co Ltd and another and another suit [2007] 2 SLR(R) 45311 at [98](d) per Sundaresh Menon JC).

17 The specific relevance of the separation of powers in relation to Art 12 challenges to criminal legislation was stated by the Privy Council in its decision in Ong Ah Chuan and another v Public Prosecutor [1979-1980] SLR(R) 1W2per Lord Diplock at [35] and [37] as follows:

35 All criminal law involves the classification of individuals for the purposes of punishment,since it affects those individuals only in relation to whom there exists a defined set of circumstances - the conduct and, where relevant, the state of mind that constitute the ingredients of an offence. Equality before the law and equal protection of the law require that like should be compared with like. What Art 12(1) of the Constitution assures to the individual is the right to equal treatment with other individuals in similar circumstances. It prohibits laws which require that some individuals within a single class should be treated by way of punishment more harshly than others; it does not forbid discrimination in punitive treatment between one class of individuals and another class in relation to which there is some difference in the circumstances of the offence that has been committed.

37 The questions whether this dissimilarity in circumstances justifies any differentiation in the punishments imposed upon individuals ivho fall within one class and those who fall within the other, and, if so, what are the appropriate punishments for each class,are questions of social policy. Under the Constitution, which is based on the separation of powers, these are questions which it is the Junction of the Legislature to decide, not that of the Judiciary. Provided that the factor which the Legislature adopts as constituting the dissimilarity in circumstances is not purely arbitrary but bears a reasonable relation to the social object of the law, there is no inconsistency with Art 12(1) of the Constitution. [Emphasis added]

18 The Privy Council clearly recognised that the question of whether one class of persons rather than another should be liable to criminal penalties based on their respective acts is a question of social policy. It also recognised that such questions fall within the competence of the legislature,not the judiciary, except where legislation is based on a “purely arbitrary” distinction.

19 As a corollary of this principle, the Court of Appeal stated the following in Taw Cheng Kong at [72]:

But, either way, it is not for the courts to dictate the scope and ambit of a section or rule on its propriety. That is a matter which only Parliament can decide; the courts can only interpret what is enacted. As so aptly put by Lord Morris in the Privy Council case of Simon Runyowa v R [1967] 1 AC 26 at 49:

A legislature must assess the situations which have arisen or which may arise and form a judgment as to what laws are necessary and desirable for the purpose of maintaining peace, order and good government. It can hardly be for the courts unless clearly so empowered or directed to rule as to the necessity or propriety of particular legislation. ... As Quenet ACJ said (in Gundu and Sambo's case [CA No AD 256 of 1965]), if once laws are validly enacted it is not for the courts to adjudicate upon their wisdom, their appropriateness or the necessity for their existence. [Emphasis added]

20 It is submitted that the separation of powers does not just inform the general standard of Art 12 legislative review but it is also a basis of the presumption of constitutionality of legislation. In its decision in Ramalingam Ravinthran v Attorney-General [2012] 2 SLR 49 ( "Ramalingam Ravinthran^)^ per Chan Sek Keong CJ at [44], the Court of Appeal stated that there was a presumption of constitutionality enjoyed by the Attorney-General in respect of prosecutorial decisions. The basis of this presumption was the “coequal status” of the constitutional prosecutorial power and the constitutional judicial power (referring to Ramalingam Ravinthran at [43]).

21 At [48] of Ramalingam Ravinthran, the presumption of constitutionality of statutes was mentioned as “an analogous presumption” to the presumption of constitutionality of prosecutorial decisions. The basis of the former presumption was stated to be a presumption “that the legislature understands and correctly appreciates the need of its own people [and] that its laws are directed to problems made manifest by experience” 一 in other words, the accountability of the elected legislature to its people and its collective experience of policy problems. We submit that the constitutional co-equality of the legislative and judicial power forms an additional basis for the presumption, just as the co-equality of the executive and judicial power forms the basis for the presumption of constitutionality of prosecutorial decisions.

The Plaintiff has not displaced the presumption of constitutionality[edit]

22 In the present case,we submit that the Plaintiff has not provided evidence to displace the presumption of constitutionality of s 377A in relation to Art 12 of the Constitution.

23 At para 9 of the affidavit filed on the Plaintiffs behalf in support of this application (“the Plaintiffs affidavit”),it is stated that s 377A “suffers from the vice of unreasonable classification and is arbitrary in the way it unfairly targets the homosexual or gay community”. At p 8 of the Plaintiffs affidavit,it is stated that “expert evidence” would be adduced in relation to “the unequal treatment of gay/men MSM and or homosexuals vis a vis heterosexuals and lesbians”.

24 As alluded to above at para 8,it is essential to highlight that s 377A does not,on its face, apply specifically to men who identify as homosexual or gay. It equally applies to those who identify as heterosexual, or who would regard themselves as bisexual, so long as the relevant acts are committed. In relation to a distinction between men and women, it will be submitted below that s 377A incorporates a legitimate differentiation based on (a) public morality and (b) public health.

25 It should be noted that the Plaintiff has adduced no evidence thus far in relation to the issue of unequal treatment, whether between different groups of men or between men and women. The Plaintiff has thus produced no evidence of arbitrariness, let alone evidence sufficient to disprove all the facts that would otherwise justify the differentiation in s 377A (see sub-paras 14(b) and (c) above). In such a situation, we submit that the presumption of constitutionality dictates that s 377A be upheld as constitutional.

Applying the presumption of constitutionality, the differentia underlying s 377A bears a rational relation to the object sought by s 377A in respect of public morality or public health[edit]

26 The differentia in s 377A bears a rational relation to the legislative objects of s 377A in respect of either public morality or public health.

The differentia protects public morality[edit]

27 The protection and preservation of public morality is a public good that is legitimate for the State to pursue.

28 The Constitution itself recognises the moral nature of laws. Article 15 for instance provides for the freedom of religion. But clause 4 of the article specifically states, “This Article does not authorise any act contrary to any general law relating to public order, public health or morality55. Similarly, Art 14,which protects freedom of speech, assembly and association, permits, in clause 2,Parliament to impose on the right to assemble such restrictions as it considers necessary or expedient in the interest of, inter alia,public order or morality.

29 The role of penal legislation in enforcing public morality has also been expressly recognised by the apex court of Singapore in Public Prosecutor v KwongKokHing [2008] SLR(R) 684 {“KwongKok:Hing’y4 at [17]:

Our criminal law is, in the final analysis, the public's expression of communitarian values to be promoted, defended and preserved. These communitarian values include the preservation of morality, the protection of the person, the preservation of public peace and order, respect for institutions and the preservation of the state's wider interests; see PP v Law Aik Meng [2007] 2 SLR(R) 814 at [24]-[29].

30 Indeed, many of our laws are concerned with morality. Aside from s 377A,we also have prohibitions on the sale of obscene books and on obscene acts in public.15 The Massage Establishments Act (Cap 173, 1985 Rev Ed) is a particularly illustrative example, the raison d'etre of the Act being to stamp out “yellow culture,,,16 a term used to describe cultural products of low moral tone e.g. pornography and literature of love and romance, as well as the hedonism and apathy they induced.17

31 Some seemingly immoral or amoral behaviour may not be targeted at a given time. This is a choice that the legislature has made aad it is empowered to do so simply because its actions are mandated by the electorate. An example of the organic and fluid nature of legislation, reflective of the prevailing sentiment of the electorate, is the repeal of s 377 of the Penal Code, pursuant to parliamentary debates in 2007.18

32 The importance of the doctrine of separation of powers, elaborated on at some length at paras 15 to 21 above,cannot be overstated. As the judiciary is not in a position to determine issues that require complex balancing between different social needs and demands, it should not adjudicate on whether or not a piece of legislation reflects the true state of public sentiment. To do so would involve the judiciary making a political decision in a fraught and controversial area in favour of one side of the controversy, something which should strictly be within the realm of the elected legislature.

33 At para 27 of his affidavit, the Plaintiff stated that in Lawrence v Texas 539 US 558 (2003) ^Lawrence v Texas"),19 the United States (“US”)Supreme Court held that moral disapproval is not by itself a legitimate state interest to justify a statute that criminalises homosexual sodomy. If local courts are persuaded to follow this ruling, the Plaintiffs argument would then be that even if the impugned legislation satisfies the rational nexus test, it is still invalid because the object sought to be achieved by the statute itself is inherently bad. This introduces an additional test of constitutionality that has not been adopted locally before. The rejection of morality as a basis for lawmaking flies in the face of the Constitution itself as well as the express decision of the Court of Appeal mKwong KokHing (see para 29 above).

Section 377A as originally enacted was intended to protect public morality[edit]

34 Section 377A was,when it was originally enacted in the Straits Settlements, clearly intended to protect public morality. The provision was inserted into our Penal Code by way of the Penal Code (Amendment) Ordinance 1938 (Straits Settlements Ordinance No 12 of 1938),20 which came into effect on 8 July 1938. The explanatory statement21 in the relevant Bill stated that s 377A was based on s 11 of the Criminal Law Amendment Act 1885 (48 & 49 Viet C 69) (UK) (the “1885 Act”),22 more popularly known as the Labouchere Amendment, and that it criminalised acts of gross indecency between men which were not covered by s 377 of the Penal Code. At the second reading of the relevant Bill on 13 June 1938, the Attorney-General Charles Gough Howell explained that the purpose of s 377A was to “strengthen the law and to bring it into line with English Criminal Law” from which the provision was taken, and the law of other parts of the British colonial empire, including Hong Kong and Gibraltar.23

35 The reference to the English criminal law was to s 11 of the 1885 Act, which provided for a term of imprisonment not exceeding 2 years, for any male person who, “in public or private, commits or is a party to the commission of,or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person,,.24 The 1885 Act was titled “An Act to make further provision for the Protection of Women and Girls,the suppression of brothels, and other purposes’,,and sought, inter alia, to raise the age of consent for heterosexual intercourse. The objectives of s 377A at inception were concerned with preserving public morality.

36 It is clear therefore that the historical basis of s 377A at its introduction in Singapore is the protection of public morality. Homosexual acts were at that time regarded by the legislature in Singapore as being immoral and for that reason alone, these acts were to be prohibited on pain of punishment. While s 377A has not been re-enacted, its retention was the subject of debate in 2007, as part of a wider debate concerning extensive proposed amendments to the Penal Code.

37 The Parliamentary debates surrounding s 377A,s retention can be referred to in discerning the legislature’s considerations in retaining the provision. While the debate was not in the nature of parliamentary speeches accompanying the passage of a bill,we submit that the speeches made on behalf of the govermnent and by members supporting the retention of s 377A are relevant in two ways. First,the numerous policy factors balanced and considered in the speeches show that the retention of s 377A was a conscious decision, in a polycentric area, taken after careful legislative deliberation. It was not a mere passive absence of legislative activity from which no policy intention might be discerned. Second and consequently, the speeches can be relied upon by the court as containing substantive reasons for parliament^ retention of s 377A in the statute books.

38 As such, even if s 377A can be described as a colonial inheritance, it is certainly not a holdover without any continuing basis. From the extensive Parliamentary debates in 2007 over the retention of s 377A, it is clear that the issue was deliberated over carefully and that the subsequent retention was a conscious and considered legislative decision based on the continuing protection of public morality. The primary contemporary object of s 377A is evidently the same as at the point of inception.

39 Three tenets stand out in the speeches on the public morality rationale:

(a) The majority of Singaporeans still find homosexual acts offensive and unacceptable. The retention of s 377A signifies the public opprobrium of such behaviour and resists the mainstreaming of homosexual lifestyles.

(b) The retention of s 377A recognises and helps to preserve the heterosexual family as the social norm. It is also a bulwark against an incrementalist homosexual agenda.

(c) The retention of s 377A and policy of non-enforcement of the section is a political compromise meant to appease a variety of parties. It is the balance that has been struck by the legislature,which has had the opportunity and expertise to consider the polycentric nature of the debate.

The majority of Singaporeans still find homosexual acts offensive and unacceptable[edit]

40 The protection of morals in society requires that personal conduct be circumscribed or prohibited. Private conduct never takes place in isolation; all conduct has ramifications and consequences in the broader life of society. What occurs in the bedroom can have repercussions in other daily interactions, such as family relationships, and ultimately in how society orders its institutions, such as marriage, the provision of social services and benefits, and the values that are promoted in society as a whole. This is especially so given that there is no general right of privacy recognised in Singapore law, either by case law or in statute, unlike the position in either the United States through its cases, or in the United Kingdom through the European Convention on Human Rights.

41 Consistently with the absence of a general right to privacy, Art 14 of the Constitution makes protection of freedom of speech and artistic expression subject to limitations on the basis of public morality: see para 28 above.

42 As the impact of private conduct goes beyond the individuals concerned’ the views of society can be taken into account by Parliament. This is’ indeed, the basis of all legislation made for the purpose of upholding public morality. This reasoning was evident in the course of the debates concerning the retention of s 377A in 2007. There, parliament considered the fact that the majority of Singaporeans still find homosexual behaviour offensive and unacceptable. In view of that,care has to be taken to ensure that there is no signal that there is any encouragement or endorsement of homosexual behaviour as part of mainstream life.25

43 That Singaporean society is still largely conservative on the issue of homosexuality has been bome out by recent academic research. In a recent article by a research team from the Wee Kim Wee School of Communication and Information at Nanyang Technological University (“the NTU study,,),26 a comparison was made between survey results taken in 2005 and 2010 from a sample of around 1,000 adult Singaporeans and Permanent Residents. Respondents were asked questions to determine their attitudes towards lesbians and gays in Singapore. In 2010,64.5% of respondents held negative attitudes towards homosexuals, while 25.3% expressed positive attitudes and 10.2% were neutral.27 While the researchers noted that this represents a slight softening of attitudes from 2005 (68.6% negative, 22.9% positive and 8.5% neutral), we respectfully submit that even with such changes a substantial majority of Singaporeans still evidently hold negative attitudes towards homosexuals. This lends additional support to the legislative decision to retain s 377A as it the law still reflects the social morality of most Singaporeans.

The retention of s 377A preserves family values and institutions accepted by the majority of Singaporeans[edit]

44 Views have been strongly expressed in Parliament that the retention of s 377A preserves traditional family values underpinning society in Singapore. In prohibiting homosexual acts, s 377A operates to preserve family values and the traditional definition of a family.28 Repealing s 377A could hasten the promotion of homosexuality as a norm within society,29 which would attract controversy given that there are a number of Singaporeans who want to maintain heterosexual norms.30

45 The removal of s 377A may have deep consequences for a whole of the legal system governing familiar and personal relationships. The relevant laws and measures are founded ultimately on heterosexual norms and the traditional conception of the family. Amending that structure calls for considered deliberation of multiple interests, which can only be performed by the legislature. The retention of s 377A and policy of non-enforcement of the section is a balance by the legislature meant to address a variety of interests

46 Although public morality arguments took centre stage in the debate within Parliament, it is noted that ultimately, many Members of Parliament emphasised a conciliatory approach based on a general policy of non-proactive enforcement.31

47 The question of the repeal or retention of s 377A excited and continues to excite considerable emotion. The ultimate issue is the political question of what values are to be espoused and protected within Singaporean society. This is a complex and intricate question, requiring careful consideration and balancing of different interests. As noted above, the consequences of both repeal and retention will require careful analysis. These are not matters that can be addressed by the Courts.

48 We should add that the fact that s 377A is not proactively enforced does not mean that its basis in public morality is eroded. A prohibition protecting or reflecting morality can operate at a symbolic level, expressing society’s abhorrence of a particular kind of behaviour, without needing to be operationally enforced. In addition, the normative and educative value of s 377A in indicating the social norm, i.e. heterosexuality,is an important bulwark against the erosion of traditional family values.32

49 From the foregoing, it is clear that public morality arguments, namely, that homosexual acts and lifestyles attract social opprobrium, animated the debate that was ultimately decided in favour of retention of s 377A.

50 The need to preserve public morality is the objective of the statutory provision. Targeting male-male activity in s 377A bears a rational relation to the objective of the provision as such activity is considered contrary to morality. Section 377A is constitutional even though it does not capture lesbian acts

51 While s 377A targets male with male acts of gross indecency, it does not capture female with female acts. This is in essence the crux of the Plaintiffs application. This differentiation is, however, not unconstitutional as it is based on a reasonable criterion. In any event, even if it is not accepted that the differentiation is based on a reasonable criterion, the differentiation results at most from under-inclusion in pursuit of a rational objective. Such under-inclusion by a statutory provision does not result in invalidity under the Constitution. The non-inclusion of female on female acts is based on a rational criterion

52 Public morality does not target female on female acts in the same way. It can be inferred from the existence of s 3 77A, the lack of an articulated public demand for criminalising female homosexual acts, as well as the lack of government legislative initiative in this respect that there is some basis rooted in public morality for the male-female distinction in s 377A. The moral stance that should be taken in respect to female with female acts has not been the subject of debate in Parliament. This could perhaps be explained by views taken about the prevalence of such acts,or the repugnancy of the acts themselves.

53 At this point, it is useful to highlight a 1921 English legislative debate in which an extension of the equivalent of s 377A to prohibit female-female sexual activity was considered and ultimately rejected. It will be seen that in fact the lawmakers’ reasons for rejecting this extension were ultimately linked to public morality, similar to the basis for introducing the original prohibition.

54 In 1921, the House of Lords had the opportunity to consider a proposed new offence of acts of gross indecency between women under the Criminal Law Amendment Bill 1921. This offence would make such acts punishable “in the same manner as any such act committed by male persons under section eleven of the Criminal Law Amendment Act, 1885” (see para 34 above). The House of Lords rejected the bill for two main reasons: the opportunity for blackmail and the harm that could result from publicising such acts by prohibiting them through legislation.33

55 This debate throws some light on the legislative reasons for the male-female differentiation in the United Kingdom (“UK”)equivalent of s 377A, which were based on public morality.

56 That female with female acts are not caught by s 377A is but a reflection of the legislature’s decision not to proscribe such acts. The legislature is entitled to consider what action or whether no action should be taken against various forms of behavior.

57 In any event, the presumption of constitutionality renders it incumbent upon the Plaintiff to show that in relation to the moral basis for s 377A, the male-female differentiation is “unsupportable” (Su Liang Yu at [130]-[131]). This he has not done.

Alternatively, that female with female acts are not covered is an under-inclusion that does not invalidate s 377A

58 As noted by the Court of Appeal at [81] in Taw Cheng Kong, classification with a reasonable basis is not invalidated by Art 12 because it leaves some persons out:

In any event, we also found the learned judge’s criticisms of the differentiation in s 37(1) unfounded. If s 37(1) was under-inclusive in that it failed to capture corrupt non-citizens whose corrupt acts outside Singapore have consequences in Singapore, that was because of the overriding need to observe international comity since Parliament had chosen to frame s 37(1} in very wide language. But surely, it was undeniable that s 37(1) mould go some way in capturing the corrupt acts of citizens abroad, and that in itself would have furthered the object of the Act ~ that in our view was sufficient; the under-inclusiveness of the provision was not fatal The enactment of a provision need not be seamless and perfect to cover every contingency. Such a demand would be legislatively impractical, if not impossible. [Emphasis added]

59 Even if female homosexual acts are morally reprehensible to the same degree as male homosexual acts, any under-inclusiveness in s 377A is not fatal because a substantial proportion of the population practicing the relevant acts is caught by the provision. As has been discussed, s 377A has an important public morality function as a signalling and educative piece of legislation. The omission of female homosexual acts under s 377A may render the signal less comprehensive, but the objective of signalling the content of mainstream morality is nonetheless served and advanced substantially. This was the same situation as arose in Taw Cheng Kong, where the under-inclusiveness of the impugned statute was viewed as an expected practical consequence of the legislative process, which had to balance the intended objectives of the statute with the need to preserve international comity. In this context, it is worth noting that the Indian Supreme Court stated in Ram Krishna Dalmia at 548 that “the Legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest” [emphasis added].

60 Many laws are political compromises based on extra-legal factors. In the case of s 377A,it is clear that the legislature viewed the retention of s 377A with its scope unamended, and the concurrent reassurance of non-proactive enforcement, as a balanced approach to incorporating the views of the majority whilst accommodating homosexuals.34

61 The balancing of multi-faceted considerations,many of them extra-legal, as well as the assessment of the effectiveness or drawbacks of a policy, are all undertakings of the legislature, outside the province of the courts, whose duty is not to question the soundness of laws or their effectiveness,but to determine if they are constitutionally valid (see the discussion at paras 84—85 below).

Whether homosexuality is innate or not does not affect the public morality basis of s 377A[edit]

62 At para 26 of the Plaintiffs affidavit, he cited the brief filed by the Amicus Psychiatric Association before the US Supreme Court in Lawrence v Texas and reasoned that homosexuality is not a disease or mental illness that needs to, or can be, cured. Although the point being made is not clear,the Plaintiff could be arguing that because homosexuality is innate,s 377A is ineffective in achieving its social object of resisting the mainstreaming of homosexual lifestyles - homosexuals will continue to exist whether or not the law criminalises their behaviour.

63 The Plaintiffs assertion is extremely controversial and far from conclusively proven. As stated in the NTU study:35

Studies have tried to determine the exact causes of homosexuality, but no consensus has been reached on this contentious issue (Haider-Markel & Joslyn, 2008; Tygart, 2000). Some individuals attribute homosexuality to lifestyle choices while others believe homosexuality has biological origins. Gay rights advocates have often adopted the argument that homosexuality is immutable, because homosexuality has been legally penalized and morally condemned, and legal and ethical systems tend to reduce responsibility for actions or identities that are not choices (Hailey, 1989).

64 Even if homosexuality can be conclusively proved to be innate (which it has not been),the argument that s 377A is not effective in achieving its social object of resisting the mainstreaming of homosexual lifestyles calls upon the court to adjudicate on the effectiveness of a piece of legislation. This is not its province, as long as there is a rational nexus between the legislation and its object In this regard, it is clear that s 377A would at least “go some way5’ in preventing the mainstreaming of homosexual lifestyles and preserving traditional family values. This is especially because, as mentioned above, s 377A has an important signalling and educative role that it serves independent of the institution of any prosecution.

Summary[edit]

65 For all these reasons, the differentiation in s 377A between homosexual and heterosexual acts (not persons), as well as between male and female homosexual acts,is warranted on the ground of public morality. Alternatively or additionally, the objective of s 377A is the protection of public health

66 An alternative to public morality as an objective is the protection of public health. While this rationale may not have been articulated at the inception of s 377A,it is submitted that if it is a reasonable rationale for differentiation in that section, the presumption of constitutionality requires that the Court accept it as a justification for the differentiation at the time of enactment: see Malaysian Bar at 166-167. This approach is supported by the US Supreme Court decision in Heller v Doe 509 US 312 (1993).36 Elaborating on the same “rational basis” analysis of “equal protection” claims adopted in Malaysian Bar above,the Supreme Court held the following at 319-321 per Kennedy J:

We many times have said, and but weeks ago repeated, that rational-basis review in equal protection analysis “is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.” FCC v. Beach Communications, Inc., 508 U. S. 307, 313 (1993). See also, e. g‘, Dandridge v. Williams, 397 U. S. 471,486 (1970).…For these reasons, a classification neither involving fundamental rights nor proceeding along suspect lines is accorded a strong presumption of validity. ... Further, a legislature that creates these categories need not actually articulate at any time the purpose or rationale supporting its classification/,Nordlinger, supra, at 15. See also, e. g.,United States Railroad Retirement Bd. v. Fritz, 449 U. S. 166, 179 (1980); Allied Stores of Ohio, Inc. v. Bowers, 358 U. S, 522,528 (1959). Instead, a classification “must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” ...

...A statute is presumed constitutional, see supra, at 319, and K[t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it,” Lehnhausen v. Lake Shore Auto Parts Co” 410 U. S. 356, 364 (1973) (internal quotation marks omitted), whether or not the basis has a foundation in the record, ... [Emphasis added in italics and bold italics]

67 The protection of public health is without a doubt a prerogative of the legislature. In order to achieve this objective, many pieces of legislation penalise acts that pose a greater public health risk while permitting acts that do not pose such a risk. In this way,those penal laws introduce a differentiation between acts based on their relative public health risks.

68 One key example of such legislation is the Infectious Diseases Act (Cap 137,2003 Rev Ed).37 Sections 21A(1) and 21A(4) read with s 65 of this Act make it an imprisonable offence for a person who knows, or has reason to suspect, that he is a case, carrier or contact of a disease set out in the Fifth Schedule of the Act to expose other persons to risk of infection by his presence or conduct in a public place. Section 23 places restrictions, enforceable by criminal penalties including imprisonment, on the sexual activity of persons who are or may be suffering from Human Immunodeficiency Virus (“HIV”)or Acquired Immunodeficiency Syndrome (“AIDS”)infection. Section 51 makes it an offence to contravene the compulsory vaccination regime in Part VI of the Act. All these sections discriminate between behaviours on the basis that the restricted behaviours pose a risk to public health in that they create a risk of the spread of infectious diseases.

69 Another example of such legislation is the Environmental Public Health Act (Cap 95,2002 Rev Ed).38 Inter alia, this Act prohibits the use of certain materials as manure (ss 13-15), various forms of uncleanliness in public places (ss 17-20),the unauthorised disposal of industrial waste (s 24) and unhygienic practices among food sellers (ss 37,40 and 41). Other acts, which do not pose a public health risk, are not affected.

70 These laws introduce differentiated treatment of different individuals based on the relative public health risks of their behaviour. This differentiation bears a rational relationship to the legislative objective. We submit that the differentiation in s 377A between male-male and female-female sexual activity similarly bears a rational relationship to the legislative objective of the protection of public health.

71 As part of this submission, we submit that judicial notice can be taken of publically-available scientific information concerning public health where it is relevant to this case. This is supported by the holding in Ram Krishna Dalmia at 548 that “in order to sustain the presumption of constitutionality the court may take into consideration ... matters of common report”.

72 Where such scientific information points to a difference in public health risks between male-male and female-female sexual acts, and this difference appears to be based on physiology, the data should be assumed to apply to all times and places unless proven otherwise. This is simply because the physiology of the sexual acts involved would not change based on differences in time or place.

73 A Committee of the Institute of Medicine of the US National Academies (“the Institute of Medicine”),the US government’s independent advisor on health issues, prepared a 2011 report entitled The Health of Lesbian, Gay, Bisexual, and Trans gender People: Building a Foundation for Better Understanding (^LGBTHealth”),39 At pp 205-206,the report highlights a long-established enhanced risk of anal cancer among men who have sex with men compared to men who do not.

74 At pp 208-211,the report describes the high rate of HIV infection and other sexually transmitted infections (“STIs”)among men who have sex with men. At p 265,it is highlighted that “half of all new HIV infections in the US occur among men who have sex with men”* The US Centers for Disease Control and Prevention (“CDC”) Fact Sheet, Estimates of New HIV Infections in the United States, 2006-2009 (“CDC Fact Sheef^),40 at p 1,Figure 1,shows that more than half of all new HIV infections in the US in 2009 (for the most-affected subpopulations) were among men who had sex with men.

75 Outside of the US,the UK Health Protection Agency (“HPA”) ’s HIV in the United Kingdom: 2012 Report (“HIV UK 2012 Report)41 at p 11,similarly shows that in 2011, 44% of all persons who had were accessing HIV care in the UK were men who had sex with men. At p 19,it is stated that in 2011 the prevalence of HIV among men who have sex with men was approximately 30 times higher than for the general population in England. A recent BBC news report dated 29 November 2012 which was based on information from the HPA stated that “[t]he number of gay and bisexual men being diagnosed with HIV in the UK reached an “all-time high” in 2011”,u[n]early half of the 6,280 people diagnosed last year were men who had sex with other men” and “[o]verall,one in 20 [men who have sex with men] are infected with HIV,’.42

76 Singapore is no exception to this statistical pattern. As indicated in a Straits Times report dated 22 April 2012,in the first half of 2011 “homosexuals and bisexuals comprised 54 per cent of the 195 people found to have the human immunodeficiency virus which causes Aids. All were infected through sex.”43 A press release by the MOH dated 28 November 2011 stated at para 6 that out of the 200 cases of HIV infection reported in Singapore in the first six months of 2011,195 cases involved the sexual route of transmission with a combined 53% of cases involving homosexual or bisexual transmission.44

77 In contrast, while there is little research done on the specific risks of female-female sexual acts,as of 2008 the US CDC had conspicuously not recorded any confirmed cases of female-female HIV transmission (LGBT Health at p 210). This is in stark contrast to the well-documented high rate of male-male HIV transmission described above.

78 An earlier report prepared by a Committee of the Institute of Medicine, Lesbian Health: Current Assessment and Directions for the Future ^Lesbian Health"),45 states at pp 72—73 that “[c]lassical [sexually transmitted diseases], such as syphilis, gonorrhea, and chlamydia, are indeed rare in women who have sex only with women, in part because of sexual behavior and in part because of issues related to transmission efficiency.” At p 78, the report notes that there may be a higher risk of HIV infection among women who have sex with women as opposed to exclusively heterosexual women because women in the former category are more likely to also engage in high-risk sexual behaviour with men. At p 79 the report notes that the one study done concerning female-female HIV transmission resulted in no evidence of such transmission even among subjects with high-risk sexual behaviour, which was consistent with other available data.

79 As fbrther evidence of the absence of documented cases of female-female HIV transmission, the CDC Fact Sheet at p 3,Table 2 does not list female-female transmission as one of its transmission categories for new HIV infections in the US in 2009. Similarly, the HIV UK 2012 Report at p 6, Figure 2,does not list women who have sex with women as one of its categories of people living with HIV in the UK in 2011.

80 LGBT Health and Lesbian Health both focus on sexual choices and behaviour as a key factor influencing the public health risks of sexual activity. For instance, LGBT Health at pp 208-211 attributes the high risk of STI transmission among men who have sex with men to high-risk behaviour such as unprotected sex, having multiple sex partners and so on. However, it is clear from the studies cited that while high-risk sexual behaviour is common both among men who have sex with men and women who have sex with women, there is still strong evidence that comparing the two,the former category of persons faces a dramatically higher risk of certain diseases, especially STIs, than the general population, due specifically to them having sex with other men. In contrast,female-female STI transmission, including HIV transmission, is known to be low, with no confirmed case of HIV transmission between women having yet being recorded.

81 Based on this information, it is submitted that s 377A’s differentiation between men and women is justified based on the policy objective of the preservation of public health. Section 377A has the effect of criminalising an activity, namely sex between men,well-known to pose a high risk of disease transmission,including of HIV. The section does not criminalise a related activity,sex between women, which is not known to pose the same public health risk. As held in Ram Krishna Dalmia (see para 59 above), the legislature is free to recognise degrees of harm in the public health sphere and may confine its restrictions to those cases where the need is deemed to be the clearest. The burden must lie on the Plaintiff to show that this differentiation is “unsupportable” and that the Court does not have “any reasonable ground” to support the legislation on this basis (Su Liang Yu at 130—131). The Plaintiffs criticism of s 377A on public health grounds do not disclose justiciable grounds justifying a conclusion that s 377A is unconstitutional

82 The Plaintiff has stated in para 25 of the Plaintiffs affidavit that s 377A in fact “hampers HIV intervention efforts aimed at sexual minorities”, including the posing of a risk to the female sex partners of men who have sex with men. The Plaintiff has provided no objective evidence for this statement.

83 Even assuming for the sake of argument that this statement were proven, any balance of a statute’s policy effectiveness against its negative effects must be the role of the legislature and not the judiciary. As stated at paras 15 to 21 above, the judiciary should not cross into the legislative sphere by adjudicating on the balance of interests struck by legislation and the effectiveness of certain policy arrangements arising from such balancing. This is strictly the realm of the legislature, which is accountable to the electorate in relation to such questions.

84 In Taw Cheng Kong, one of the issues considered was a finding of the court below that “the ability of a discriminatory provision to achieve its objective” was a valid ground for judicial scrutiny in relation to Art 12 of the Constitution (see Taw Cheng Kong at [50]). The Court of Appeal rejected this approach, holding that it is not for the courts to rule on the propriety, wisdom, appropriateness or necessity of laws: the only legitimate judicial question is that of constitutionality (at [72]-[73]).

85 The Court of Appeal went on to hold that to give effect to the presumption of constitutionality, any examples of the effects of legislation in terms of over- or under-inclusiveness had to (a) be proved with positive evidence and (b) show that the legislation was enacted or operated arbitrarily (at [76]-[83]). It should be noted that the standard was set at arbitrariness, which is a constitutional issue under Art 12. No allowance was given for mere evidence of policy ineffectiveness, negative unintended consequences or similar matters, which are properly issues for the legislative branch of government to resolve. As stated at [81] of Taw Cheng Kong in relation to the issue of unconstitutionality, “[t]he enactment of a provision need not be seamless and perfect to cover every contingency. Such a demand would be legislatively impractical, if not impossible”.

86 It is submitted that the Plaintiffs criticism of s 377A on public health grounds is (a) merely an assertion unsupported by positive evidence and (b) merely based on the policy effects of the statute. The Plaintiff has not proven any arbitrariness or other constitutional issue relevant to the court’s decision under Art 12 of the Constitution.

The foreign authorities referred to by the Plaintiff as examples of laws targeting homosexuality being found unconstitutional are not of assistance as they were made in different contexts

87 Foreign decisions on homosexual behaviour are not of assistance as they were made against the context of different equality provisions and constitutional backgrounds, as well as different perceptions of morality. 88 The cases from the three jurisdictions cited by the Plaintiff in his affidavit - the US,India and Hong Kong 一 can be readily distinguished. In short, they were all premised on the right to privacy which is not recognised in Singapore. US - Lawrence v Texas#

89 In this landmark decision, the US Supreme Court, in a 6-3 ruling, struck down the criminal prohibition of homosexual sodomy in Texas. The majority based their decision on a finding of the existence and acceptance of a right to sexual autonomy as a facet of privacy.

90 This is clearly not the case in Singapore. Indeed, the Court of Appeal in Tan Eng Hong (CA), at [120], expressly affirmed a narrow interpretation of “life” and “personal liberty5,in Art 9(1) of the Constitution which referred only to the “personal liberty of the person against unlawful incarceration or detention,,,and rejected the Appellant’s contention that Art 9 “must extend to all those faculties by which life is enjoyed”,including “privacy,human dignity, individual autonomy and the human need for a intimate personal sphere”. Therefore, it is settled law that no such similar right of privacy, entailing sexual autonomy, exists in Singapore. Accordingly, Lawrence v Texas should be distinguished. India - Naz Foundation v Government of NCT of Delhi [2009] WP(C) 7455/2001 (aNaz Foundationy7

91 Naz Foundation was cited by the Plaintiff in his affidavit. This was a case of public interest litigation brought by the non-governmental organisation, Naz Foundation,to challenge the constitutional validity of s 377 of the Indian Penal Code, 1860 (“IPC”),which was in pari materia with the now-repealed s 377 of Singapore’s Penal Code (see para 31 above), criminalising carnal intercourse against the order of nature with any man,woman or animal.

92 The Delhi High Court observed at [31] that while the Indian Constitution does not contain a specific provision concerning privacy, a right to privacy was nevertheless implied in Arts 19 (freedom of movement) and 21 (protection of life and personal liberty) of the Constitution of India. It further held at [48] that s 377 IPC breached this right to privacy:

The sphere of privacy allows persons to develop human relations without interference from the outside community or from the State. The exercise of autonomy enables an individual to attain fulfillment, grow in self-esteem, build [WP(C)7455/2001] Page 39 of 105 relationships of his or her choice and fulfill all legitimate goals that he or she may set. In the Indian Constitution, the right to live with dignity and the right of privacy both are recognised as dimensions of Article 21. Section 377 IPC denies a person's dignity and criminalises his or her core identity solely on account of his or her sexuality and thus violates Article 21 of the Constitution. As it stands, Section 377 IPC denies a gay person a right to full personhood which is implicit in notion of life under Article 21 of the Constitution.

93 The Delhi High Court accepted the view that while s 377 IPC criminalised sexual acts rather than identities, these acts were associated more closely with one class of persons and hence had the effect of viewing all gay men as criminals (see [94]). As a result of discrimination to the gay comimmity,the Court held at [98] that s 377 IPC was in breach of Art 14 (equality before the law) of the Constitution of India.

94 The Delhi High Court also held at [99] that sexual orientation is a ground analogous to sex, and that discrimination on the grounds of sexual orientation violates Art 15 (prohibition of discrimination) of the Constitution of India.

95 This Indian decision should be distinguished on the grounds that it accords an expansive definition to life and personal liberty which our courts have consistently rejected. In addition, the argument that the differentiation in s 377A is between homosexuals and heterosexuals is specious (see para 24 above). Furthermore, in Singapore, sexual orientation is not a recognised ground on which there can be absolutely no differentiation - these grounds are exhaustively provided in Art 12(2) of the Constitution to be religion, race, descent or place of birth in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.

96 In Leung TC William Roy, the Hong Kong Court of Appeal dismissed the Government’s appeal against the lower court’s holding that a provision which set the age of consent for homosexual men at 21 (the age of consent for heterosexual or lesbian couples was 16) unconstitutional. The Court considered (from [41]) whether the provision infringed the Applicant’s rights to privacy and equality, which are contained in Arts 25 and 39 of the Hong Kong Basic Law and Arts 1,14 and 22 of the Hong Kong Bill of Rights. The Court conducted a two-stage inquiry (see [43]): (a) has a right protected by the Basic Law or the Bill of Rights been infringed? (b) if so,can such infringement be justified? It found that the Government had not discharged its burden of proving that the discrimination was justified.

97 This case may be distinguished from the Singapore context in two ways. First, the Singapore Constitution recognises no express right to privacy. As for the right to equality, this is not absolute and allegations that legislation breaches this right are subject to the rational nexus test.

98 Second, unlike the position in Hong Kong, Singapore law recognises a presumption of constitutionality that places the burden of proof on the Plaintiff to prove that s 377A does not rest on any reasonable basis. The court is entitled to and must assume any ground or state of facts at the time of the statutory enactment (or retention in this case), within reason, that would justify the classification, so long as they are brought to its notice by the Defendant. The presumption of the constitutionality of laws in Singapore means that plaintiffs must do more than prove that there is differentiation — he must also disprove all such facts that would otherwise justify the classification, which are brought to the notice of the court. In contrast, Hong Kong law places a positive burden of proving constitutionality on the government, based on a proportionality analysis, once unequal treatment is proven to have occurred (see [44]-[45] of Leung TC William Roy). This approach is directly contrary to the presumption of constitutionality that applies in Singapore law.

99 Accordingly, because of the differences in the rights recognised in the two countries, and the different approach applicable in determining the constitutionality of a piece of legislation,the Hong Kong authority is not of assistance in this case.

Conclusion[edit]

100 In conclusion, based on the strong presumption of constitutionality and the failure of the Plaintiff to produce sufficient evidence to show that there is no rational basis for the differentia in s 377A, we submit that this application should be dismissed.

AEDIT ABDULLAH SC, NEO XIULIN SHERLYN AND JEREMY YEO SHENGLONG

STATE COUNSELS

SINGAPORE

4 FEBRUARY 2013