The homophobic courts – Revisiting Ong Ming Johnson & Choong Chee Hong v. Attorney General

Singapore adopted the British Westminster Parliamentary System of Government after becoming an independent sovereign State in 1965. However, instead of following the British model of parliamentary sovereignty, Singapore adopted a written Constitution and prescribed to the doctrine of constitutional supremacy, recognizing its Constitution as the supreme law of the land. The aforesaid doctrine confers on the judiciary the power to render constitutionally infirm parliamentary enactments void.

Even so, a careful perusal of the jurisprudential development of the constitutional law in Singapore showcases that the doctrine of constitutional supremacy, which is enshrined under Article 4 of the of the Constitution of the Republic of Singapore (“Constitution”), is fading away. Primary reason behind this unhealthy development is the reluctance on the part of the judiciary to subject the will of the majority to constitutional scrutiny. Where on one hand, the constitutional Courts around the world have welcomed a transition from the traditional form of judicial review into the modern form of judicial review, Singapore’s judiciary on the other hand has still not moved past the traditional form of judicial review leading to various instances of human right violations in the country.

This blog analyses the pitfalls of the approach adopted by the Singapore Courts in light of the recent judgement rendered by the High Court of the Republic of Singapore in Ong Ming Johnson & Choong Chee Hong v. Attorney General. In this case, the Court dismissed three petitions challenging the constitutional validity of Section 377A of the Penal Code, 1938 which criminalised “acts of gross indecency” between “males” either in public or private. Since Section 377A had been previously challenged before Court of Appeal in Lim Meng Suang & Anr. v. Attorney-General & Anr., the High Court in the present case observed that it will be bound by the principle of stare decisis, except for newly raised arguments. Even though Section 377 which criminalized “carnal intercourse against the order of nature” between any ‘man’, ‘woman’ or ‘animal’ was repealed in the year 2007, retention of Section 377A still continues to haunt homosexuals residing in Singapore and even the global community at large.

This blog comprises of three parts, offering critical analyses of the judgement given by the High Court in light of right to freedom of expression, right to equality and right to life & personal liberty, respectively. The blog concludes with suggesting three legal principles, namely, test of proportionality, test of direct and inevitable consequence, and collective reading of fundamental liberties enshrined in Part IV, that must be adopted by the Courts to secure constitutional supremacy in Singapore.

  • Right To Freedom Of Expression

For determining the scope of the term “expression” under Article 14 of the Constitution, the Court relied upon the Tan Cheng Bock framework, taking into consideration the text, the context and the object of the Article. Highlighting that the term “expression” has varied meanings depending upon the context it is used in, the Court relied upon the Marginal Note to Article 14 (“Marginal Note”) as an aid for interpretation. This Note is worded as “freedom of speech, assembly and association”. The Court reasoned that due to absence of the term ‘expression’ in the Marginal Note, there exists no independent right to freedom of expression, that is, expression can only be seen as something “relating to or falling within” the right to freedom of speech. Relying on the principle of ejusdem generis, the Court concluded that such freedom would not extend beyond “verbal communication” of idea/belief/opinion.

This preposterous approach of the Court is problematic on various levels. Firstly, denying the independent existence of a right by merely relying on the Marginal Note to that right is problematic. If this rationale is to be applied for interpretation of Article 9, the Marginal Note to which states “liberty of the person”, then there exists no scope for an independent ‘right to life’ under the Constitution, as the term ‘life’ is found only under sub-clause (1) of Article 9. This would imply that there would be no right to life beyond right to personal liberty and that protection of Article 9 will be restricted to laws against wrongful restraint, wrongful confinement, kidnapping, abduction, criminal trespass, slavery and forced labour only.

Secondly, it is argued that Article 14 should be read in light of the title of Part IV of the Constitution which deals with “fundamental liberties”. Freedom of expression is a negative liberty, and with regard to the theme of Part IV, Article 14 should be interpreted as an enabling provision. Even if the term ‘expression’ (or life as in the aforementioned scenario) has various possible interpretations contingent to the context in which it is used, the Court should validate each of such interpretations subject to the restrictions ‘explicitly’ mentioned in the second limb of the Article.

Thirdly, such a restriction renders homosexual people ineligible from exercising their other liberties conferred under Part IV. Homosexual activist groups are considered “unlawful, prejudicial to the public peace and contrary to the national interest”. The fear of prosecution restricts them from forming associations for supporting their cause, expressing their gender by way of speech, behaviour, mannerism, clothing, choice of sexual partner, etcetera. Calling this fundamental right “surplusage” or “redundant” is a disrespect not only to the Constitutions of various democracies but also to universally accepted instruments of international law like the Universal Declaration of Human Rights (“UDHR”).

Fourthly, the Court observed that if a wider notion of “expression” as per the judgement given by the Supreme Court of India in Navtej Singh Johar v. Union of India  (“Navtej Singh Johar”) is adopted, then Article 14 would inevitably provide constitutional protection to sexual offences such as incest, paedophilia, necrophilia and bestiality. However, this assumption of the Court is extremely flawed as children, corpses and animals are legally incapable of giving consent, meaning thereby that paedophilia, necrophilia and bestiality would not fall under the category of consenting adults indulged in private sexual activities. As far as the question of incest is concerned, there is no scientific data supporting “incestuous sexual orientation”. Moreover, as opposed to homosexuality, incest has possibility of a deformed offspring, which in turn can affect the society at large. Personal laws or religious customs having force of law also prohibit sexual relation within a certain degree. Further, the restrain on homosexuals is comparatively way higher as the laws criminalizing incest prohibit sexual relations with only ‘few’ individuals, whereas the laws criminalizing sexual relations between males prohibits sexual engagement ‘every’ member of the gay community.

  • Right To Equality

By ignoring the fact that Section 377 was repealed in the year 2007 “equally” for all persons including homosexuals, and by disregarding the Explanatory Note to Section 377A, the Courts deviated not only from the literal and golden rule of interpretation, but also from the Interpretation Act, 1999. This interpretation of the Court, which has the effect of reviving Section 377, is directly in contravention with the principle of “quando aliquid prohibetur ex directo, prohibetur et per obliquum” according to which what cannot be done directly cannot be done indirectly. Applying the mischief rule of interpretation, it can be analysed that the mischief Section 377A was trying to correct pertained to non-penetrative acts, which were not criminalised under Section 377. The same can be deduced from the difference in the maximum punishment available for these offences. Undoubtedly, the varying gravity of penetrative and non-penetrative acts attracted different punishments.

The test of reasonable classification was adopted by the Court to scrutinize Section 377A on the anvil of Article 12, which guarantees equality before law and equal protection of law. The Government of Singapore has acknowledged that there is an inherent right of gender equality under the Constitution, even in the absence of the term “gender” under Article 12(2). Section 377A criminalizes sexual acts between males as opposed to sexual act between females or a male and a female. To validate this manifest gender discrimination, the Court relied on two provisions of similar nature which were challenged earlier and subsequently held constitutional, namely exclusion of women from punishment of canning as per Section 325(1)(a) of the Criminal Procedure Code, and Section 69(1) of Women’s Charter which provides that spousal maintenance can only be claimed by a wife. It is argued that such a reliance is incorrect as the examples cited can be distinguished from Section 377 on the ground that these provisions guarantee a protection whereas Section 377 sanctions an infringement. The former protects women against harsh punishments and neglect by their spouses whereas the later infringes upon the rights of a disadvantaged and minority community. The intent and effect of these provisions is different and therefore, the ratio laid down in respect to one of them cannot be applied to the other.

  • Right To Life And Personal Liberty

With respect to Article 9 which guarantees right to life and personal liberty, the Court have adopted a ‘one-dimensional facet’ of liberty. This form of liberty exists in constitutional text but cannot be enforced in real world. The aforementioned comment is in response to the Court’s argument that a homosexual person is not being prosecuted for his identity, but rather for the ‘acts’ he does in furtherance of this identity which are socially comprehended to be of gross indecency. Highlighting that it is the ‘act’ which is penal, the Court remarked that even a heterosexual person committing such an act can be prosecuted under Section 377A.

This understanding of the Court is absurd and leads to arbitrary implications as it prejudices against an entire community of people. Sexual identity is ‘personal’ to an individual and the ‘liberty’ to express such identity by way of behaviour, sexual acts or choice of life partner falls well within the ambit of Article 9. By penalising conduct which does not fall within the binary, the Court is inevitably prosecuting homosexual people for their identity as well.

The Court referred to various scientific evidence and expert testimony to reach on the conclusion that sexual orientation of a person may vary over time, and therefore, it is not “immutable”. This deduction can be rebutted from two different angles. On one hand, reliance can be laid on the judgement rendered in Navtej Singh Johar to argue that sexual orientation of a person is innate, ingrained and inherent. On the other hand, it can be argued that with more and more people identifying themselves as LGBTQIA+, people around the globe are in the process of exploring their true unchanging or immutable self. Thus, their sexual orientation is not changing, rather their understanding of themselves is. This argument is based on the premise that sexuality is fluid in nature. Even if the reasoning of the Court is accepted, it does not in any manner justify that heterosexuality is the only ‘normal’ and just because the orientation of a person can vary, they should be forced by penal measures to resort to heterosexual ways of sexual expression. Such mindset leads to homosexuals being exposed to instances of police abuse, extortion, harassment, forced sex, payment of hush money, etcetera.

Due to lack of representation in the so-called democratic structure which purports heteronormative norms, the LGBT community stands minimal chance against the “morality” purported by majority. Ignoring the fact that the rule of law prefers individual liberty over majority opinion, the guardian of rights has become an accomplice to the violators. Further, the act of State to compel individuals engaging in private consensual sexual acts to testify against each other or themselves for enforcement of Section 377A would be inconsistent with the principle of protection against self-incrimination.

The Way Forward

The Singapore Courts must deviate from the traditional approach and adopt a more progressive approach towards constitutionalism and constitutional morality. Firstly, the Courts should adopt the ‘doctrine of proportionality’ for scrutinizing a legislation on the anvil of Article 12. This doctrine premises on the principle that a balance must be maintained between the adverse effects of a legislation on the fundamental rights and liberties of an individual, and the purpose or object sought to be achieved by that legislation. Application of this doctrine would ensure that in matters of conflict, fundamental rights and liberties of an individual will always triumph over notions of morality propagated by the majority.

Secondly, the Courts should adopt the ‘test of direct and inevitable consequence’ for scrutinizing the restrictions imposed by a legislation in furtherance of Article 14(2) on freedom of speech, expression, assembly and association. This doctrine proposes that in order to test whether a fundamental right is violated, the Court must consider the direct and inevitable consequence of the State action. This doctrine urges the Courts to scrutinize the practical impact of a legislation along with its theoretical framework. Application of this doctrine in the present case would lead to a conclusion contrary to the one taken by the Court because even though Section 377A theoretically only criminalises sexual ‘acts’ between males, but in effect it criminalises homosexuals for their ‘identity’ as well. Analysing the practical implication of Section 377A would also highlight the adverse instances of police abuse, harassment, extortion and forced sex, to which homosexuals are subjected on a daily basis.

Thirdly, the Courts should not perceive Part IV to be consisting of independent liberties. The liberties recognized under this Part are so intrinsic and interlinked that one cannot be exercised without the other. To substantiate this line of thought, assume that the Parliament enacts a law declaring that all mentally disabled people should be given capital punishment on the rationale that they are a liability for the nation. Hypothetically, such a situation can arise as the Government is not representatively accountable towards such people, since they are ineligible to vote. Such a legislation will stand the test of Article 12 as the class of people can be intelligently distinguished and the punishment forms a nexus with the object of removing liabilities. Further, the deprivation is in accordance with the law and in the interest of the nation, which makes the legislation consistent with Article 9 and Article 14, respectively. However, if the restrictions imposed under Article 14(2) or the test of reasonable classification as enshrined under Article 12 is simultaneously accompanied with the scrutiny of the object of the impugned legislation on anvil of Article 9, the result would be otherwise. Therefore, only through a collective reading of Articles 9, 12 and 14; the object and scope of the laws can be truly tested on constitutional principles.

This decision rendered by the Singapore High Court gives us only a glimpse of how institutionalised patriarchy and sexism purports homophobia and misogyny to such an extent that even the legal minds of the nation are not free from its influence.

This article has been authored by Siddharth Jasrotia, a student at Maharashtra National Law University, Mumbai.

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