From S'pore LGBT encyclopedia
Jump to: navigation, search


Originating Summons No. 994/2010/Y

In the Matter of Article 4,9,12 and 14 of the Constitution of the Republic of Singapore


In the matter of DAC 41402/10 And

In the Matter of Tan Eng Hong ... Plaintiff


Attorney General ... Defendant


Counsel for the Defendant

Attorney - General's Chambers,

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

Tel: 6336 1411

Fax: 6339 0286

File Ref: AG/CIV/L/1/2010/17 Vol. 1

Counsel for the Plaintiff M. Ravi

Messrs L. F. Violet Netto 101 Upper Cross Street #05~45 People's Park Centre Singapore 058357 Tel: 6533 7433 Fax: 6532 4301

File Ref: MR. 6074.10




i) O15 applications do not have to meet the stricter test ... 2

ii) The general standard is that you need not be prosecuted ... 4


i) Gay/homosexual people meet the threshold in order for there to be standing because the law directly affects them .... 6

ii) Applicant is a member of the gay community, and hence has standing .... 9


i) Targetted application ... 9

ii) Retroactive extinguishment .... 10




II) ARTICLE 9 ... 15

II)ARTICLE 12 .... 17

The classification is not founded on an intelligible differentia. .... 18

Even if the differentia is intelligible, it does not bear a rational relation to the object of the law in question .... 19



a) Applicant need not be prosecuted in order for there to be standing

i) O15 applications do not have to meet the stricter test

1. The applicant filed his claim under O15, hence he does not not have to meet the stricter test to prove that he has locus standi.

2. The 'stricter test' for locus standi was elucidated in Karaha Bodas Co LLC v Pertamina Energy Trading Ltd [2006] 1 SLR(R) 112 {Tab 1}. In that case, the Court of Appeal held that the court‘s power to grant declaratory reliefs under O15 r 16 is subject to the requirement that the declaration be one of right (at [25]). Plaintiffs seeking declaratory relief thus have to prove that they have a 'real interest‘ in bringing the action, and that there was a 'real controversy‘ between the parties for the court to resolve.

3. However, the Court of Appeal in Eng Foong Ho v Attorney-General [2009] 2 SLR(R) 542 ['Eng Foong Ho'] {Tab 2} affirmed an exception to this principle. That case held that where an applicant seeks declaratory relief against a possible infringement of his constitutional rights, he will not be subjected to a stricter test for locus standi: '... the respondents have also argued that because the appellants have proceeded by way of O 15 r 16 and not O 53 r 1 of the Rules of Court, they must satisfy a stricter test for Locus Standi as decided by this court in Karaha Bodas Co LLC v Pertamina Energy Trading Ltd [2006] 1 SLR (R ) 112 ('Karaha Bodas”). The argument seems to be that a higher standard of locus standi is required for an application under O15 r 16 than that under O 53 r 1. This argument has no merit whatsoever. Karaha Bodas was not concerned with the pursuit of constitutional rights. In our view, it does not matter what procedure the appellants have used. The substantive elements of locus standi cannot change in the context of the constitutional protection of fundamental rights.'

4. In Eng Foong Ho, the applicants were devotees of the Jin Long Si Temple seeking a declaration against the compulsory acquisition of the temple property by the Collector of Land Revenue. The applicants were not Trustees of the temple and thus did not have proprietary interest over the temple property. Nevertheless, the court held that the applicants, as members of the San Jiao Sheng Tang Buddhist Association, had sufficient standing to pursue declaratory relief as the defendant- Collector‘s act could possibly amount to an infringement of Article 12 of the Constitution. Thus, significantly, the applicant‘s claim was defeated on substantive grounds as opposed to their lack of standing.

5. Therefore, it is submitted that an applicant seeking a declaration against an infringement of his constitutional rights does not need to fulfill a stricter test for locus standi. ii) The general standard is that you need not be prosecuted

6. Given that the AGC has amended the initial charge such that the applicant is no longer prosecuted under 377A, does he have the requisite standing to challenge the constitutionality of 377A'

7. It is submitted that the applicant has locus standi notwithstanding the fact that he was eventually not prosecuted under 377A. The applicant engages in conduct that, were 377A to be actively enforced, results in him being liable for conviction. Such conduct is a consequence of his sexual orientation, a scientifically immutable aspect of his personal identity. The applicant has a personal interest in living a dignified life free from prosecution for something that he is not able to change. Such personal interest exists even in the absence of an actual prosecution of the applicant under the contested provision.

8. In Chan Hiang Leng Colin v Minister of Information and the Arts [1996] 1 SLR 609 at 614D ['Chan'] {Tab 3}, the Court of Appeal held that 'A citizen should not have to wait until he is prosecuted before he may assert his constitutional rights'. In that case, the applicants were Jehovah‘s Witnesses seeking judicial review against the Ministry of Information, Communications and the Arts‘ prohibition on the importation, sale and distribution of certain publications. The applicants were found to have locus standi despite the fact that they had not been prosecuted or suffered any harm as a consequence of the defendant-Ministry‘s action. This principle is reiterated in Union de Pequenos Agricultores v Council of the European Union [2003] QB 893 {Tab 4}, 'Individuals clearly cannot be required to breach the law in order to gain access to justice' (at [43]).

9. The weight of precedent from other Common Law jurisdictions supports the principle that an applicant need not necessarily be actively prosecuted for locus standi to be established. In Croome and Another v State of Tasmania (1997) 142 ALR 397 ['Croome'] {Tab 5}, the applicant was a homosexual challenging the constitutionality of Tasmania‘s sodomy laws, despite the fact that he had not been prosecuted under the relevant provisions. In a unanimous judgment the High Court of Australia held that the applicant had locus standi. As Brennan CJ, Dawson and Toohey JJ opines at 402: 'The plantiffs plead that they have engaged in conduct which, if the impugned provisions of the Code were and are operative, renders them liable to prosecution, conviction and punishment. The fact that the Director of Public Prosecutions does not propose to prosecute does not remove that liability. Liability to prosecution under the impugned provisions of the Code will be established if the court were to determine the action against the plaintiffs even if liability to conviction under those provisions cannot be determined by civil process Controversy as to the operative effect of the impugned provisions of the Code will be settled and binding on the parties. The plaintiffs have a sufficient interest to support an action for a declaration of s 109 invalidity.'

10. Similarly, in Leung T C William Roy v Secretary for Justice (HCAL 160/2004) ['Leung'] {Tab 6}, the Hong Kong Court of Appeal did not make prosecution a prerequisite to establish standing for a homosexual applicant seeking to challenge the validity of a provision penalising homosexual acts conducted by citizens of his age: 'Notwithstanding the fact that a prosecution is neither in existence nor in contemplation and there is no relevant decision which directly affects the Applicant, yet it is clear on the facts that he and many others like him have been seriously affected by the existence of the legislation under challenge...The effect of the Respondent‘s submissions is really that the constitutionality of the affected provisions can only be tested if the Applicant were to go ahead with those activities criminalised by the provisions in question and be prosecuted for them. In other words, access to justice in this case could only be gained by the Applicant breaking what is according to the statutory provisions in question, the law. In my view, this is a powerful factor in favour of the court dealing with the matter now’ [emphasis mine]

11. The fact that the AGC has amended its claim such that the applicant is no longer liable to prosecution under 377A ought not preclude the applicant from having the requisite standing for his claim b) Applicant meets standards for standing i) Gay/homosexual people meet the threshold in order for there to be standing because the law directly affects them

12. It is submitted that the plaintiff has legal interest that validates locus standi in the matter. In R v Greater London Council [1976] 3 All ER 184 (at 192) {Tab 7}, Lord Denning MR said: 'I regard it as a matter of high constitutional principle that if there is good ground for supposing that a government department or a public authority is transgressing the law, or is about to transgress it, in a way which offends or injures thousands of Her majesty‘s subjects, then anyone of those offended or injured can draw it to the attention of the court of law and seek to have the law enforced and the courts in their discretion can grant whatever remedy is appropriate.'

13. In Leung, the court held that the applicant had standing to take out a declaratory judgment, as the law seriously affects them. The applicant, the court said, has been living under a 'considerable cloud'. In Croome, 'sufficient interest' was deemed to be had, because they had engaged in conduct that, 'if the impugned provisions of the Code where and are operative, renders them liable to prosecution, conviction and punishment' (Croome, at 402). Croome took its guidance from Pharmaceutical Society of Great Britain v Dickson [ 1970] AC 403 {Tab 21} , where the principle of necessary or sufficient interest was met as long as their 'freedom of action is challenged', in order to clarify 'his rights and position clarified'. These cases have not been applied locally directly, but the same principle and stance can be found in local cases.

14. In Chan, the action was for a judicial review under O53, not a declaration under O15. In that case, sufficient interest was met by the fact that they were citizens, and hence they were entitled to complain that their constitutional rights were being violated(Chan, at 614). No further qualification was needed, for them to be able to do so. In Eng Foong Ho, sufficient interest was met by the fact that the petitioners seeking the declaratory judgment were members of the Association that held the property subject to compulsory acquisition, even though the petitioners had no proprietary interest in the Temple(Eng Foong Ho, at 547). A broad reading of Chan, in fact, has set the standard for standing much lower than in Eng Foong Ho - all one needs to be, is a citizen, whose constitutional rights may have been violated. A narrower reading would still hold that for a person to have sufficient interest, he does not need to be the direct recepient of the action or legislation in question, but if the effect of the action or legislation touches him, he would have the sufficient interest. Hence, Chan is in line with the foreign cases cited above.

15. The holding in Eng Foong Ho also reflects the principle elucidated in the earlier cases that one needs to be merely affected by the law in question even if they are not prosecuted.

16. Applying Eng Foong Ho and Chan, in light of the foreign cases cited above, it is quite clear that any male person who practices homosexual acts has sufficient interest. The practice of the acts is closely tied to the identity, as heterosexual men have little interest in engaging in homosexual acts. The existence of the law strongly affects those in the gay/homosexual community, for they have to live in constant fear of prosecution. The law affects their constitutional rights to equality, privacy and freedom of expression, and as per Chan, this means that they have standing to challenge the laws. Their freedom of action is curtailed, as they have been made into unapprehended criminals for engaging in acts that are central to their identity and romantic relationships, and are an integral part of love and intimacy, which ties into Pharmaceutical Society. These acts, when performed by members of the opposite sex on each other, are obviously not criminalized.

17. Hence, the law is a serious curtailment of their right to equality, privacy and freedom of expression, especially in the context of the fact that, as said above, this is an integral part of love and intimacy in the lives of gay/homosexual people. ii) Applicant is a member of the gay community, and hence has standing

18. The applicant has been identified and practicing as homosexual for __ years. He was caught having oral sex with another male, and that is the essence of the original charge. As such, he is part of the community, and someone whose life has been touched by the unconstitutionality of the law. c) Applicant’s standing is not extinguished by amending the charge i) Targetted application

19. Assuming that the applicant need not be prosecuted in order to have standing, the targetted application of the law would indicate that the amendment does not affect his standing.

20. The applicant was caught having oral sex with another male, and was threatened, and charged with s 377A, only to be withdrawn later. The applicant was not eventually convicted under s 377A, but under s 294. However, the fact that he was charged with s 377A at first, despite the availability of alternatives, proves the assertion that the gay community is affected by the existence of the law. There is no reason that anyone should be charged with s 377A under any circumstance— be it public sex, sex with a minor, sexual assault or transmission of an infectious disease, as there are laws that deal with all of the above situations, separately. However, the Attorney-General‘s Chambers chose to charge the applicant with s377A straight-away. This would lend credence to the assertion that it is the gender of the partner that was made into an issue, not any other aspect. When the gender of the partner is made into an issue, it is obvious that it is the homosexual nature that attracted the prosecution, and not any other consideration of public decency.

21. The amendment of the initial charge, then, does not affect the standing of the applicant to sue, for the law is still in existence, and so is the discrimination that affects all practicing homosexual men. ii) Retroactive extinguishment

22. Even if there needs to be a criminal prosecution for there to be standing, it is submitted that at the time the O15 application was filed, there was a charge pending before the courts, for the applicant. Hence, at the material time, the applicant would have had standing to seek the declaration that the charge was in violation of his constitutional rights.

23. It is not logical to say that a prosecution must be completed to conviction, for a constitutional challenge to arise. Conviction of the accused depends on the factual guilt of the person, but the violation of the rights has already been done in the process of the charging the accused.

24. The decision by the AGC to drop the charge under s 377A need not necessarily invalidate the locus standi of the plaintiff since it in no way altered the actions of the plaintiff which in first instance brought forth the initial charge. Scalia in Lujan v Defenders of Wildlife [(1992) 119 L Ed (2d) 351, (at 364)] {Tab 8} spoke of the 'core component of standing' as 'an essential and unchanging part of the case'. Even though the plaintiff was charged under s 294 of the Penal Code for his misdemeanour, it is submitted that because the substantive facts remains such that the plaintiff committed an act which constitutes as an offence under s 377A, and was held by his misdemeanor answerable to the charge of s 377A, which was in fact raised against him, it does not matter even if the initial charge was not upheld by the election of the Attorney-General‘s Chambers. The plaintiff‘s locus standi on the matter therefore would remain unchanged, given that his acts, which brought about his standing on the above matter, remain unchanged.


25. This application is not frivolous, vexatious or an abuse of process simply because the constitutional question was referred via OS and not via section 56A of the Subordinate Courts Act {Tab 9}.

26. It is not mandatory for every constitutional question arising in a criminal case to be referred under section 56A. Citizens are not barred from raising the question via OS instead.

27. Whether the constitutional question was referred via section 56A or via the OS filed, the matter would have ended up before the High Court. Proceeding via OS is not a significantly longer or more complicated process than proceeding via section 56A, and therefore the courts‘ time and resources have not been wasted in any way. Indeed, proceeding under section 56A would have been more wasteful of the courts‘ resources, as leave would have to have been sought from the District Judge. If the District Judge had refused leave to refer the question under section 56A, the plaintiff would still have been entitled to refer the question via OS, thus invoking the courts‘ jurisdiction twice over what would have been substantially the same matter.

28. As the charge against the plaintiff has been amended, any application for the constitutional question to be referred under section 56A now would not succeed. Irrespective of what charge the plaintiff faces in the criminal proceedings, the plaintiff desires and indeed is entitled to challenge the constitutionality of section 377A. It would be absurd to say that he can do this only via section 56A, just because he also happens to be the subject of criminal proceedings.


Historical Developments[edit]

29. The law is one with roots in religious opposition to homosexuality.

30. Homosexuality was abhorred in ecclesiastical law. It can be traced back to the prohibition in Leviticus, which, originally part of Jewish faith, passed into Christianity as well. All the European jurisdictions maintained Leviticus-based prohibitions against homosexuality as well, from the 6th century (Douglas E. Sanders, '377 and the Unnatural Afterlife of British Colonialism in Asia', (2009) 4(1) Asian Journal of Comparative Law Art. 7) ['Sanders'] {Tab 10}.

31. It was criminalised in secular law as early 1534, in the time of Henry VIII, formulated as 'buggery' with men or beasts (Sanders, at 1-2). In Britain, law arose after the Protestant revolution, and was originally used as part of the legislation specially meant to persecute Catholics, especially by trumping up false charges (Sanders, at 4-6).

32. Britain‘s criminal law was a mess, and hence the Macaulay‘s penal code was promulgated, which never succeeded in Britain, but went on to be enacted in British colonies. S 377 was originally enacted through the Indian Penal Code in 1860, where the offence was reframed as 'acts against the order of nature', and framed as gender-neutral. As part of the Straits Settlements at the time, Singapore inherited the Indian Penal Code (Sanders, at 8-11).

33. In 1885, an MP wanted to insert 'gross indecency' to explicitly cover acts between men, whether or not it involved in penetrative sex. He succeeded, and eventually it spread to other jurisdictions, such as Malaysia and Singapore in 1938 (Sanders, 15-16). Malaysia, however, does not mention the gender of the person in its provision (Penal Code, 1936 (F.M.S. Cap 45)).

34. S 377 was removed by our own Parliament for being outdated and intrusive in 2008 (Penal Code (Amendment) Act (No. 51 of 2007), s 70). 35. S 377 was read down to exclude consensual male sexual activity in India in 2009 (Naz Foundation v Government of NCT of Delhi WP(C) No.7455/2001) {Tab 14}. ii) Article 9 36. In interpreting the constitution, G Sri RAM JCA, speaking for the Malaysian Court of Appeal in Tan Teck Seng v Suruhanjaya Perkhidmatan Pendidik & Anor {Tab 11} stated that: '[Judges] should, when discharging their duties as interpreters of the supreme law, adopt a liberal approach in order to implement the true intention of the framers of the Federal Constitution. Such an objective may only be achieved if the expression 'life' in art 5(1) is given a broad and liberal meaning.‘

37. The word 'life‘ in Article 9 of the Constitution should be interpreted broadly to give rise to the intention of the framers of our Constitution and the current needs of the Singaporean society at this point in time. Singaporeans enjoy a high standard of living in material terms. The government has made healthcare, housing, education, clean water and other basic needs easily accessible and affordable. However, life cannot only refer to mere existence, with only physiological needs being fulfilled. It is more than mere animal existence; it must extend to all those faculties by which life is enjoyed. Beyond physiological needs, one requires self-esteem and self-actualisation for life to be meaningful. 38. In order for one‘s life to be meaningful, the pursuit of happiness encompasses within it the concepts of privacy, human dignity, individual autonomy and the human need for an intimate personal sphere. Of those faculties, the most important and relevant to the case at hand is human dignity.

39. Human dignity is a difficult concept to capture in precise terms. It requires us to acknowledge the value and worth of all individuals as members of our society. At the root of human dignity is the autonomy of the private will and a person‘s freedom of choice and action. The Canadian Supreme Court in the case of Law v. Canada (Ministry of Employment and Immigration), [1999 1 S.C.R. 497] {Tab 12}.attempted to capture the concept of dignity: 'Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits. It is enhanced by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences. Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognise the full place of all individuals and groups within Canadian society.'[at para 53]

40. It is clear that s 377A of the Penal Code penalizes private, consensual sex between adults, which impairs the expression of the human self of homosexuals, consequently violating their right to live with dignity, and hence their right to lead a meaningful life as enshrined in Art 9 of the Constitution.

41. S 377A of the Penal Code harms human dignity by marginalizing male homosexuals, or MSM. It criminalizes homosexual sex, going so far as to define homosexual acts as 'unnatural'. All males engaging in homosexual sex are therefore engaging in unnatural acts, or acts against the course of nature. The social stigma that attaches itself to such acts cannot be understated. There cannot be psychological integrity and empowerment for such males when they believe that society at large views them as criminals, engaging in acts against the natural order of nature.

Article 12[edit]

42. The criminalisation of homosexual sex fails the two-step 'reasonable classification' test for validity under Article 12 of the Constitution.

43. The two-step 'reasonable classification' test for validity under Article 12(1) for the Constitution enunciated in Ong Ah Chuan and another v Public Prosecutor [[1979-1980] SLR(R) 710] {Tab 13}.according to which a 'differentiating measure' is valid if: a. The classification is founded on an intelligible differentia b. The differentia bears a rational relation to the object sought to be achieved by the law in question. The classification is not founded on an intelligible differentia.

44. s377A targets homosexual in its operation because the acts are closely associated with the gay identity, and it forms an integral part of their love and intimacy (Naz Foundation, Lawrence v Texas 539 U.S. 558 (2003) {Tab 15}, Leung, The National Coalition for Gay and Lesbian Equality v The Minister of Justice CCT 11/98 [1998] ZACC 15 {Tab 16}).

45. Moral disapproval of majority is not cause for the differentia. Firstly, morality is subjective, and differs from person to person. Also merely morality cannot be used to criminalise - for example, adultery is not criminalised even though it would be universally disapproved of.

46. Other Asian countries who are not Muslim countries all around us are increasingly rejecting the view that moral disapproval warrants criminalisation, including India. Even countries with majority chinese populations such as Taiwan, South Korea and Hong Kong do not have this law, which, if Asian values truly require homosexuality be disapproved of and criminalised, they would have enacted.

47. Malaysia‘s laws on the subject are gender-neutral with respect to sex acts (s 377, s 377A-D of Penal Code (Malaysia)), and hence are not indicative that our values and morals require that homosexual sex be criminalised.

48. Religious objections cannot be used for imposing views on others. This law is based on a Judeo-Christian notion, which is shared by Islam, as said above. However, we are a secular country, and it would be entirely contrary to our principles to allow religious objections to infringe on other‘s freedoms when it does not concern the rights of the people holding said religious beliefs. Even if the differentia is intelligible, it does not bear a rational relation to the object of the law in question

49. S 377A does not bolster family life. The percentage of gay people in any given society is small - 6-10%. It is not logical to say decriminalisation would automatically lead to family values being destroyed, even in the worst case scenario, and even assuming that there is something about homosexuality that would instrinsically destroy values, which it does not.

50. Furthermore the stigma of living under the law is what would cause families to break apart, as parents have trouble accepting their children as unapprehended criminals. Paradoxically, adultery, the one thing that does break apart families, is not criminalised. If something is required to protect family values, the proper venue to do so is through family law, not criminal law. Other societies which have decriminalised have not reported any issues.

51. S 377A does not serve object of disapproving of morality. If it was homosexuality that was being targetted, then it is under-inclusive, because it does not criminalise lesbian sex.

52. S377A does not serve a purpose of protecting public health with respect to HIV/AIDS. In fact, it hinders the efforts. It prevents the authorities from educating the target group (MSM) openly, because they could be seen as promoting a criminal act. Furthermore, studies have proven that decriminalisation actually lowers the HIV/AIDs prevalence rate (Roy Chan, Sections 377 and 377A of the Penal Code – Impact on AIDS Prevention and Control (2007) 34 The Act {Tab 22}).

53. Furthermore, it is over-inclusive because it covers monogamous gay couples, and under-inclusive because it does not cover promiscuous heterosexuals, since it is actually more prevalent in heterosexual people. In any case, s377A is completely redundant for the purposes of preventing the spread of HIV infection, since there already are laws that strongly and specifically deter the spread of HIV (Infectious Diseases Act, Cap 137, Rev. Ed. 2003, s23){Tab 18}.

54. S 377A does not protect minors. It is over-inclusive because not all homosexuals are pedophiles, and it is under-inclusive because it does not cover heterosexual pedophiles. And again, it is completely redundant because there are other laws that can protect minors in a gender-neutral way - s7 of the Children and Young Person’s Act {Tab 19}, s376A of the Penal Code {Tab 20}, both of which have stricter punishments.

55. It is also illogical because the minor would also be liable for conviction along with the perpetrator, since there are no age restrictions in the provsions.

56. s377A does not protect men from sexual assault. It is over-inclusive because it covers non-consensual situations, and under-inclusive because it does not cover assault on a man by a woman. Also, there are other provisions to cover this, namely, s 376 of the Penal Code{Tab 20}.

57. s377A does not protect public decency. It is under-inclusive because it does not cover heterosexual acts, and it is over-inclusive as it also criminalises sex between people in private. Furthermore, other laws exist which can cover – s 294 of the Penal Code {Tab 20}.

International Law[edit]

58. The only countries with this law are muslim countries and some former colonies. There is a compelling customary international interest against the criminalisation of homosexuality. In fact, in keeping this law, Singapore would be on the same page as countries like Afghanistan, Iran and Uganda. Most civilised countries of a reasonably developed nature, in fact, all civilised countries, have rejected the idea that we should be extending the reach of the state into the bedroom. This is not only European countries, but most Asian (Sanders).

59. The only reason countries like Uganda, Iran and Malaysia are keeping this law is because of overwhelming religious pressures in their countries. Singapore is a secular, tolerant country.

Dated this 7th day of December 2010 __________________ Counsel for the Appellant M. Ravi M/s L.F. VIOLET NETTO