|CASE NAMES||Tan Eng Hong v Attorney General & Lim Meng Suang and Kenneth Chee Mun-Leon v Attorney General|
|COURT/ TRIBUNAL||Court of Appeal of the Republic of Singapore|
|STATUS||Judgment delivered 29 October 2014 dismissing the appeals and finding that criminalising gay men does not violate the Constitution (HDT press release)|
Mr Tan was arrested and charged under Singapore’s ‘gross indecency’ law in 2010 and mounted a challenge to the constitutionality of that provision. Mr Lim and Mr Chee, a gay couple, have never been charged but brought a separate challenge in 2012 alleging that the mere existence of the gross indecency law violates their fundamental rights. Both cases were dismissed by the High Court in early 2013, and appeals were lodged with the Court of Appeal. The Court of Appeal dismissed the appeals on 29 October 2014.
Singapore’s law criminalising all male homosexual intimacy derives from an amendment to the British colonial Penal Code in 1938 which enacted s.377A, criminalising ‘male gross indecency’ with a maximum sentence of two years imprisonment. The provision was intended to strengthen and complement an earlier colonial law, s. 377, which criminalized ‘carnal intercourse against the order of nature’, capturing any sexual conduct whether homosexual or heterosexual that was not penile-vaginal sex.
Section 377 was repealed by Parliament in 2007 on the basis that Singaporeans no longer had any issue with oral or anal sex between heterosexuals. However, Parliament left s. 377A on the books so that all male homosexual conduct would continue to be criminalised. Thus, all heterosexual and all female homosexual conduct is legal in Singapore, but male homosexual conduct is illegal regardless of age, consent and location.
Mr Tan is an adult male who was directly impacted by the existence of the gross indecency law after having been arrested and charged under it in 2010. The charge under s. 377A was later changed to one of public obscenity, a provision that does not discriminate on the basis of the sex or sexual orientation of the parties involved. However, Mr Tan was permitted by the Singapore Court of Appeal to continue his constitutional challenge against s. 377A on the basis that he had been detained under an arguably unconstitutional law and should be allowed to have that unconstitutionality tested in the courts. He argues that this provision discriminates against male homosexuals by making all consensual sexual conduct between adult men, even in private, a criminal offence.
Mr Lim and Mr Chee are an adult gay couple who brought a separate action in 2012 challenging s. 377A, even though they have never been charged under it, on the basis that the provision stigmatises them as gay men and renders them ‘unapprehended felons’ simply for being who they are.
The Attorney General of Singapore defended s. 377A in both cases, claiming that it accords with Singaporean society’s views about male homosexuality and that it is up to Parliament to determine whether to repeal the provision.
The two cases were heard separately by the High Court in 2013 and both were dismissed, with the Court holding that the courts must show deference to Parliament on issues of social policy. Both Mr Tan and Mr Lim and Mr Chee appealed those decisions, and the two appeals were joined and heard by the Court of Appeal on 14-15 July 2014. The judgment of the Court was delivered on 29 October 2014, dismissing the appeals. The Court found that it could not act as a ‘mini-legislature’ and that equality before the law and equal protection of the law effectively do not protect LGBTI people, or indeed women, in Singapore. It held that changes to the law are up to the Legislature..
The Appellants argued that s. 377A violates certain fundamental rights guaranteed in the Singaporean Constitution, which exist to protect the rights of all citizens including minority groups. These include:
|Right to life and personal liberty||Article 9|
|Right to equality before the law and equal protection of the law||Article 12|
The Appellants sought a declaration that s. 377A violates the Constitution at least to the extent that it criminalises consensual sexual conduct between adult males in private. The Court of Appeal was being asked either to strike out s. 377A in its entirety or to ‘read down’ the provision so that, at a minimum, it could no longer be applied to consensual conduct in private between adult men. They argued that other, properly criminalised conduct such as non-consensual sex, sex with minors and public acts are already covered under other provisions of the Penal Code that apply to all citizens regardless of sex or sexual orientation.
The Court of Appeal heard the two appeals together on 14 and 15 July 2014. A judgment was delivered on 29 October 2014. This is the final appellate court in Singapore and thus the decision of the Court is final.
The Human Dignity Trust’s Role
The Human Dignity Trust provided pro bono technical legal assistance to the Appellants’ local counsel in both cases. The Trust’s Legal Panel member Debevoise & Plimpton LLP, led by Lord Goldsmith QC, assisted Mr Lim’s and Mr Chee’s local Singaporean lead counsel, Deborah Barker SC.