Contrary to concerns raised by some, as well as in articles like this, the Court of Appeal is not about to repeal s377A anytime soon.

 

Far from it. The doors to judicial review of the constitutionality of 377A has actually been shut by the Court (because no one can be prosecuted under it without first meeting certain conditions).

 

The only ones who have the key to change the status quo of 377A at this point are the Government / Parliament, not Judiciary.

 

I gained this clarity after writing to Prof Thio Li-ann, who is an expert on constitutional law. I shall reproduce my questions and Prof Thio Li-ann’s replies. These writings have been edited for readability.

 

I have included significant portions of the Court of Appeal (CA) statements on Tan Seng Kee vs Attorney-General (AG). I felt it important that we read these statements to gain clarity on the intent of the Judiciary, so that representations can be made accurately, and misrepresentations clarified.

 

***

 

1. The Question of whether the Judiciary has crossed boundaries and engaged in judicial activism

 

Leo: Li-ann, as a constitutional law expert, I am writing to you hoping to get some clarity and an authoritative assessment of the legal position.

 

I have personally read through Tan Seng Kee vs AGhttps://www.elitigation.sg/gd/s/2022_SGCA_16.

In my intentional study, I saw that the Court of Appeal (CA) judges were deliberate in indicating awareness of the sensitivities of altering legislative content and intent. They were consistent in keeping to the legislative context of s377A while applying judicial interpretation.

 

For example, look at para 94 and 95 which show the Judiciary’s careful consideration of the legislative intent of s377A:

 

[94] ..the purpose of the political compromise on s 377A that was reached in 2007 and elaborated on by AG Wong in 2018 was to strike a careful balance between the opposing interests of various groups. The retention of s 377A served to accommodate the views of the more conservative segments of society, while the caveat that s 377A would not be proactively enforced served to accommodate the interests of homosexual individuals and to allow them to live their lives in as full a space as is presently possible. The Government was clearly seeking to calibrate the pace at which the complex issue of whether s 377A should be retained or repealed was resolved..

 

[95] ..we reiterate that it would be artificial and unrealistic to ignore the profound implications of these considered legislative and executive actions when assessing the legality of s 377A.

 

In para 151 where the Court upon delivering its decision, states the effects of its ruling, they reiterated that the legislative status quo of s377A is meant for the Government to decide:

 

[151] ….our holding would have the effect of… (c) preserving the legislative status quo on s 377A and reserving the matter of its retention or repeal for further consideration by the Government and Parliament at an appropriate time.

 

 

Prof Thio: Dear Leo, the Court of Appeal (CA) took pains to emphasise it was not violating the separation of powers or being a mini legislature. It left the decision to Parliament. What it did say was that because of the 2018 Attorney-General / Public Prosecutor’s promise, you cannot prosecute anyone under s377A unless and until you expressly say you are changing your policy of non-proactive enforcement. So if the Government today wants to use s377A, it must say publicly: we are changing our enforcement policy. The reason for this is because under the CA decision, there is an expectation that there will not be proactive prosecution of those engaging in homosexual sex acts. What proactive prosecution is, would be something like the past practice where police conducted raids on well-known gay haunts etc. The government can change its policy as its discretion is not fettered (the CA was very clear on this) but if it wants to change the policy e.g. to active prosecution, it must inform the public of the change so that there will be no further reliance on the ‘old’ policy. Instead, expectations will be shaped by the new policy.

 

 

Leo: I read those careful, calibrated statements. The CA explains their interpretation of Attorney-General (AG) Wong’s 2018 statements are not to be taken as an encroachment on the Public Prosecutor’s (PP) prosecutorial discretion. They justify the importance of analysing the AG’s 2018 statements: as it had not been studied by the CA (AG’s 2018 statements were made after CA’s judgement in Lim Meng Suang) yet the AG’s statements are authoritative, therefore, it’s impact to the gay appellants need to be interpreted. Para 136 states:

 

[136] There is also no issue of a possible encroachment on the PP’s prosecutorial discretion. As the institution, conduct and termination of prosecutions lie within the exclusive domain of the AG (acting in his capacity as the PP), it would ordinarily be inappropriate for the court to restrict or interfere with that discretion by reference only to the Prime Minister’s parliamentary speech.. As it turns out, however, after our decision in Lim Meng Suang (CA), AG Wong published his office’s prosecutorial policy on s 377A, which was expressed to give effect to the public policy reflected in the Prime Minister’s speech during the s 377A Debates. Hence, and most exceptionally, giving effect to the legitimate expectations that have arisen as a result of the political package does not risk curtailing the PP’s prosecutorial discretion or offending the doctrine of the separation of powers. Furthermore, it certainly does not entail the court having to evaluate the merits of the positions adopted by AG Wong or, for that matter, by the Prime Minister.

 

Para 138 made it clear that while the Court interprets the AG’s 2018 statements, they are not suggesting that the AG or Government is bound by that position. It is not the judiciary’s role to interfere even if the AG or Government changes position:

 

[138] Second, there is nothing at present to suggest that AG Wong wishes to depart from the position that he articulated in 2018. It is clear, however, that AG Wong or a future AG cannot be prevented from changing that position in the future (see [97] above). While any potential change in the AG’s position is not an issue before us, it seems to us that, in such an event, what would be required as a matter of fairness is that the AG provides, in clear and unambiguous terms, reasonable notice of his intention to resile from the representations previously promulgated by AG Wong in 2018.

 

 

Prof Thio: Yes. The political compromise of 2007 (legislation) stays intact, bolstered by Public Prosecutor’s (PP) 2018 statement that it would continue to follow a non-proactive enforcement policy (executive action). The government’s hands are not tied but to manage expectations, changes in policy must be announced. The CA was addressing executive policy (enforcement issues) not the legislation itself i.e. whether 377A is constitutional. The question was whether executive discretion was exercised lawfully not whether a law was constitutional. Homosexuals today know unless and until government expressly states a policy shift to proactively enforce s377A, they cannot be prosecuted under it. The Court will invalidate a prosecution under section s377A (executive action) for violating a substantive legitimate expectation (SLE) i.e. an interest to be told if there is a change of policy before that change takes place, which is totally different from invalidating s377A itself (legislation).

 

The PP is not prevented from prosecuting s377A cases but it must first make an announcement of a policy shift, e.g. we are changing our policy; change your expectations. That is what the court requires the PP to do.

 

If today, there is suddenly a s377A prosecution, the courts will say: how come you didn’t expressly declare a change in enforcement policy? You violate the substantive legitimate expectation (SLE). The AG’s discretion is not “fettered” but the court imposes a requirement before that discretion can be exercised.

 

This was a balance between prosecutorial discretion and fear of prosecution under non-proactive (reactive) policy. It was giving legal weight to the 2007/2018 political compromise so it is impossible to say this is activist. This is actually respecting Parliament and executive powers (prosecutorial discretion) while imposing a condition (pay the political price if you wish to adopt a particular course of action) such that if you want to use s377A proactively, announce a policy change first.

 

That’s all the Government has to do – pay the political price of saying, “we change to enforce 377A proactively now.” It is free to do so, and free not to do so. So it is not barred from s377A prosecutions. They just have to observe this condition, if not the act of prosecution (an exercise of executive power) can be challenged for breaching the SLE.

 

 

2. On the Court’s decision to make 377A “unenforceable in entirety”.

 

Leo: Para 137 is important to note. The Court “scopes” questionable and criminal conduct that was under s377A’s “broad range of conduct” out of s377A. Ms Tan who was AGC’s representing lawyer agreed with the Court’s judgement that conduct which the Public Prosecutor may want to continue to prosecute under s377A can be prosecuted under other laws:

 

[137] ..s 377A covers a broad range of conduct, including conduct that is indisputably objectionable and deserving of legal sanction, such as the abuse of male minors or acts of gross indecency in public. AG Wong made clear in 2018 that it would not normally be in the public interest to institute prosecutions under s 377A in cases involving two consenting adult men who engage in sexual activity in private. That leaves no question that it would sometimes be in the public interest to prosecute conduct that might be caught by s 377A but does not involve sexual acts between consenting adult men in private. Such conduct includes, for example, sexual conduct involving minors and/or occurring in a public place. However, as much as such conduct is objectionable, it would also be caught under more targeted (and, by and large, gender-neutral) legislative provisions. For example, indecent behaviour in public is prohibited under s 20 of the Miscellaneous Offences (Public Order and Nuisance) Act 1906 (2020 Rev Ed) and s 294 of the Revised PC, while sexual acts involving minors are prohibited under provisions such as ss 376A to 376C of the Revised PC. Nothing in this judgment constrains the PP’s freedom and ability, even now, to institute prosecutions under other laws in respect of such objectionable conduct. Ms Tan accepted this at the hearing.

 

With this, the Court clarified that s377A would be “unenforceable in its entirety” and “the appellants hence do not have standing to mount their constitutional challenges against s377A”. I quote from “Case Summary” (instead of “Judgement”) para 22:

 

[22] In answer to the Anterior Question, the court held that s 377A is unenforceable in its entirety, unless and until the AG of the day provides clear notice that he, in his capacity as the PP: (a) intends to reassert his right to enforce s 377A proactively by way of prosecution; and (b) will no longer abide by the representations made by AG Wong in 2018 as to the prosecutorial policy that applies to conduct falling within the Subset. In view of this decision, which gives legal effect to AG Wong’s representations without importing the uncertainties that would otherwise continue to plague homosexual men, the appellants cannot be said to face any real and credible threat of prosecution under s 377A at this time. It follows that there is in fact no controversy and, at present, no threat of any violation of their rights under Arts 9, 12 and 14. The appellants hence do not have standing to mount their constitutional challenges against s 377A. The court’s views on the interpretive and constitutional issues raised by the appellants are thus purely obiter since they do not arise for determination in these appeals (at [149]–[153]).

 

 

Prof Thio: As explained, without an expressed change in policy, the Government/PP cannot today bring a s377A prosecution. If they cannot do this, NO ONE HAS STANDING TO CHALLENGE s377A. It is impossible for anyone to bring a case since there is no longer an interest in doing so – you only have standing to challenge s377A if you are prosecuted under it or have a genuine fear of being prosecuted under this. The SLE takes away this fear.

 

If you are not charged under s377A and have no fear of being charged under s377A, you have no standing to go to court to challenge the law itself i.e. challenge the constitutionality of s377A.

 

The effect of Tan Seng Kee is: if you are charged under s377A without the Public Prosecutor or Government FIRST declaring a shift to pro-active enforcement policy, you can challenge the violation of the SLE.

 

Under the SLE, the Government cannot invoke s377A cases unless it FIRST announces a change in enforcement policy. If the Government did nothing, no one could in practice challenge s377A. They could easily leave it in place – not only as a symbolic marker of public morality, but also one that has substantive downstream effects e.g. same sex marriage, public sex education etc.

 

With s377A, you cannot for example have same sex marriage because there is a direct link between both – s377A is based on a valid and legal differentiation based on homosexual and heterosexual couplings.

 

In legal parlance, the government and laws make classifications all the time i.e. distinguishes between Group A and Group B for tax or other purposes etc. Valid classifications are called “differentiation” and non-valid classifications are called “discrimination.”

 

So, s377A is no mere symbol. It is a bulwark against those developments and has serious substantive implications.

 

So the ball is in the government’s court. If it wants s377A to be challenged, it has to today prosecute someone under s377A.

 

 

Leo: Thanks Li-ann for your clear explanations. So you are saying that, someone first has to have “standing” i.e. right to bring a case to court, to bring an application for judicial review. This is impossible now in light of s377A being “unenforceable in entirety”. No one today has been charged, or lives in fear of being prosecuted under s377A, hence, no one has standing to challenge s377A unless the SLE is violated, or some unforeseen legal issues arise to give “standing” to a future challenge of s377A. If so, should we fear that the court will take an “activist” view i.e. the judges replace the legislative choice for their judicial preferences?

 

[Note: The Government in Singapore consists of 3 branches: the Legislature (which comprises the President and Parliament), the Executive (which comprises Cabinet Ministers and office-holders) and the Judiciary. Each has specific functions. The Legislature makes laws. The Executive administers the law. The Judiciary interprets the law. (https://www.parliament.gov.sg/about-us/structure/system-of-government) Judicial activism refers to a certain method or approach by which courts decide cases not from the expressed intentions of the legislature as drawn from the legislation, but by reading in their own preferred values, which is stepping out of their constitutional sphere of influence.]

 

 

Prof Thio: Tan Seng Kee shows that the courts have set themselves against being activist i.e reading in their preferred subjective values; imposing their political views and values distinct from interpreting the law; acting like a second legislature. The CA read the law to give due weight to legislative concerns reflected in for example, the presumption of constitutionality, i.e. the assumption that Parliament knows best what is good for its people and can articulate good reasons for the choices it makes. So the fear of judicial activism is unfounded going by Tan Seng Kee’s approach. For the courts to go activist would be novel and unprecedented. They recognised and respected the autonomy of Parliament: Parliament can make political compromises taking into account political considerations, as there is a political price to be paid for every political decision (cost benefit analysis, holistic considerations including downstream effects of having/not having a law). Para 4 of Tan Seng Kee reflects this view:

 

[4] One may well ask whether litigation is, in fact, the optimal way to resolve such differences. Politics seems the more obvious choice than litigation for debating and resolving highly contentious societal issues. At the heart of politics lies the project of democratic engagement, as politicians aim to persuade voters by appealing to hearts and minds. Litigation, on the other hand, is “not a consultative or participatory process” but “an appeal to law” (see Jonathan Sumption, Trials of the State: Law and the Decline of Politics (Profile Books Ltd, 2019) (“Trials of the State”) at p 65). The single biggest advantage of the political process – in fact, its raison d’être – is its ability to accommodate divergent interests and opinions (see likewise Trials of the State at p 65). However sub-optimally some may think politics performs that function, the courts can never discharge that function simply because it is not their constitutional role to mediate such differences in society. And this is so for good reason, because litigation is a zero-sum, adversarial process with win-lose outcomes. The political process, in contrast, seeks to mediate – it strives for compromises and consensus in which no one side has to lose all.

 

 

3. The Question of Article 12 – what exactly was implied by the Court?

 

Leo: Thanks once again Li-ann. That said, I did read in Tan Seng Kee, that the Court nevertheless, made obiter observations (e.g. see “Case Summary” para 22 above; last sentence) i.e. non-binding observations; think-aloud statements, on various points raised by the appellants.

 

To date, the courts have found that s377A does not violate constitutional articles like Article 9 (life and personal liberty) and Article 14 (right to free speech).

 

There is perhaps uncertainly on one point – a possible avenue of challenge is under Article 12 which deals with equality under the law and equal protection of the law. How do you analyse that?

 

 

Prof Thio: Tan Seng Kee does not make any conclusive statements on whether or not s377A as a piece of legislation is unconstitutional; any observations the judges gave on s377A’s constitutionality were obiter (opinion; not a final judgment). Therefore, there is no change to the position taken by the Court of Appeal in its 2015 decision (Lim Meng Suang v AG) where the constitutionality of s377A was upheld in the face of Article 9 and 12 challenges (and from other cases, we know s377A passes Article 14 as well).

 

In Tan Seng Kee, the CA offered a few thoughts on a possible argument that s377A might not satisfy Article 12, if there is another challenge on grounds of Article 12. These are not binding determinations. They are in the vein of “here is a possible argument” (which may or may not succeed – we would have to wait for it to be argued fully before us in court, but we expect counsel to address this sort of issue).

 

Article 12 requires that like cases be treated alike in the same way. That begs the question of what is like/alike. This depends on the purpose of the law.

 

When is an apple and orange alike? When we are classifying “fruits”. They should be in the same category. When is an apple and orange unalike? When we are classifying “colours”. Then they should be in a different category. It all depends on whether I am classifying “fruits” or “colours” – and on this point, the cue should be taken from the Legislature (the purpose of the law).

 

Much depends on how “purpose” is construed, whether broad or narrow.

 

If construed narrowly e.g. the purpose of s377A is to prevent male homosexual conduct i.e. sodomy; women cannot engage in sodomy, then there will be no problem. S377A will pass the Article 12 ‘reasonable classification’ test.

 

If construed more broadly e.g to protect public morality, the question could arise: why not include female homosexual acts with male homosexual acts? The argument could be: the law does not cast its net broadly enough by excluding women (under-inclusive argument).

 

Whether an underinclusive law will pass constitutional muster under Article 12 is a matter for argument. It is not automatically the case that all under-inclusive laws are fatal as the law does not require perfect legislation.

 

For example, in the past, anti-corruption laws which only apply to Singaporean citizens – and not to non-citizens – have been upheld, even if non-citizens can also engage in corrupt acts, for the purpose of international comity e.g. foreign relations implications.

 

All differentiations must have a rational nexus to the legislative purpose. It all depends on whether the differentiation in the legislation sufficiently (but not perfectly) serves the legislative objective or purpose. If it ‘goes some way’, it may suffice. So long as there is some contribution of the law to the purpose of the law, it will in all likelihood be valid.

 

S377A only criminalises male-male homosexual acts. It does not apply to female-female homosexual acts. It may be argued: why don’t you also criminalise female-female (lesbian) acts? Why only male homosexual acts and not lesbian acts? [Note the law does not target a person (homosexuals) but certain forms of conduct e.g. sodomy between men; so a heterosexual male would also be caught for committing sodomy with another man]. This argument assumes that male homosexual acts and female homosexual acts are equivalent or the same. That is an arguable point.

 

If s377A gets challenged in court, it is debatable whether the non-inclusion of female homosexual acts is fatal to the law. There may be excellent reasons for maintaining a distinction between male and female homosexual acts. It is an assumption to say male homosexual act is morally equivalent to female homosexual act or has the same social consequences. It is an argument to be made, based on the scope of legislative purpose to be construed. The CA made no definitive statement. It merely said IF you define purpose broadly as public morality, the non-inclusion of female homosexual acts may be A FACTOR supporting the argument s377A is unconstitutional. A factor among many and not necessarily determinative. And obviously, there are counter-arguments.

 

Whether to keep s377A or not is ultimately a political decision, not for the courts to decide. This is because courts give effect to the intention of parliament i.e. they defer to parliamentary considerations of what is best as Parliament is accountable to the people for the wisdom or lack of wisdom in their activities. The reasons for keeping it includes public morality. Parliament can at any stage articulate whatever reasons it sees fit for legal change or maintaining legislative status quo.

 

For example, if Parliament was debating the merits of s377A today or in the future, in addition to the original reasons for the law (which was adopted in 1938), it could raise and consider public health implications as an additional reason for retention: Men who have sex with men experience disproportionately higher infection rates in terms of STD and HIV rates, as compared to women who have sex with women. This could be a differentiation that serves the legislative purpose relevant to Article 12.

 

So if Parliament today says: we retain s377A, not just for public morality but for other considerations like public health, then and only then can courts in a later challenge say, “Parliament has considered public health as good, valid legislative purpose”; s377A will pass Article 12 and be upheld. The courts uphold the intent of Parliament, discerned by scrutinising the law and the intent under the law, as expressed by Parliament.

 

 

4. Concluding statements

 

Prof Thio: In a nutshell, today, the govt CANNOT invoke s377A UNLESS it first announces the policy change, to give effect to the SLE.

 

The only way s377A can be challenged in court is if the Government wants it to be challenged in court, either by

 

(a) prosecuting s377A case without announcing policy change (but this results in the SLE not being observed) and

 

(b) announce policy change, prosecute s377A, and risk another constitutional challenge.

 

For practical purposes, if there is to be another s377A challenge before the courts, this is something the government/PP will have to initiate by bringing another s377A prosecution so that someone has standing to bring a case to challenge the government/and the law. In that sense, the ball is in the government’s court. There are now conditions the courts require to be met, before such a prosecution may be brought (i.e. observe the SLE).

 

[Note: For more relevant indepth analysis, refer to Professor Thio Li-ann’s Journal Article available for a limited time – https://journalsonline.academypublishing.org.sg/e-First/Singapore-Academy-of-Law-Journal/ctl/eFirstPDFPage/mid/568/ArticleId/1366?Citation=Published+on+e-First+30+December+2021]

 

 

Leo: Thanks Li-ann for your detailed analysis. I have learnt a lot from it. On the basis of these arguments and analyses, it is clear that changing the status quo on s377A on the basis of a fear of an activist court is not at all convincing. As a result of Tan Seng Kee, the ball for any challenge to the constitutionality of s377A (legislation) lies squarely in the Government’s court. (see illustration below)

 

In summary, Tan Seng Kee upheld the political compromise of 2007/2018 and says clearly, whether to keep or not keep s377A is a decision for Parliament, not for the Court to decide, as a matter of the separation of powers. The Court respects parliamentary autonomy over difficult and sensitive political issues. Parliament can engage in holistic deliberation and consider all relevant factors in the short, medium and long term. Under our parliamentary system, the legislative branch will pay the political price for the political choices they make in the name of the good of Singapore; as in any democracy, the people of Singapore will assess these choices and either affirm or reject them e.g. at the ballot box.

Court of Appeal’s judgement in “Tan Seng Kee vs AG” does not threaten the status quo of s377A, says Constitutional Law Professor

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