In 2018, two gay men, Ong Ming Johnson and Choong Chee Hong, filed fresh cases with the High Court of Singapore, challenging the constitutionality of Section 377A of the Singaporean Penal Code. In 2019, gay activist and retired doctor, Dr Tan Seng Kee, filed a similar challenge. The cases were heard together in November 2019. On 30 March 2020, the High Court of Singapore dismissed the cases finding that Section 377A did not violate the Singaporean Constitution.
Section 377A of the Penal Code, enacted under the British colonial administration, criminalises acts of gross indecency between men. Although prosecutions are rare, any man who commits any act of ‘gross indecency’ with another man can be jailed for up to two years. This also extends to any man who abets, procures or attempts to procure such an act. Whilst s377A only targets gay men, activists in Singapore say that the culture of shame and homophobia it engenders casts a shadow of oppression over the whole lesbian, gay, bisexual and trans community.
The plaintiffs argued that s337A was inconsistent with Articles 9(1), 12(1) and 14 of the Constitution. The court rejected all arguments of the plaintiffs. Notably, in considering the purpose and object of s377A, the court held that it was intended to “be of general application, being aimed at male homosexual practices generally, to enforce a stricter standard of societal morality.” Further the court determined that s377A did not violate Article 12 of the Constitution because it was consistent with the reasonable classification test and that “distinctions have been drawn between men and women in various areas within Singaporean law.” The court also held that Section 377A did not violate Article 14(1) of the Constitution because the right to freedom of expression related to verbal communication of a belief, idea or opinion. Section 377A was also considered to be consistent with the rights outlined in Article 9 of the Constitution as the provision was not absurd or arbitrary.
The cases were dismissed by the High Court, however an appeal was heard in January 2021 in Tan Seng Kee and Others v. Attorney General Of Singapore.