Homosexuality is not 'Expression': Singapore SC Disagrees with 'Navtej Singh Johar' Judgment - Synopsis
Dilpreet Singh 3 Apr 2020

Singapore's Supreme Court recently upheld the law that criminalizes homosexual sex among males.

The High Court and the Court of Appeal are Singapore's Supreme Court. The High Court judgments are appealable to the Court of Appeal. Appeals against the High Court decision have reportedly already been lodged before the Court of Appeal.

Judgment In 2014, the Court of Appeal upheld the High Court's decision rejecting the petition against Section 377A in Lim Meng Suang and another v Attorney-General, and a further appeal and another matter [2015] 1 SLR 26.

The three new petitions were filed in Navtej Singh Johar v Union of India, AIR 2018 SC 4321 after Indian Supreme Court delivered its judgment. The judge of the High Court, See Kee Oon, has of course referred to the judgment of the Indian SC in Navtej Singh Johar.

This piece intends to examine the difference in approach of two Supreme Courts towards criminalizing homosexuality.

Section 377A of the Singapore Penal Code
Unlike Section 377 of Indian Penal Code, Section 377A of Singapore Penal Code penalizes only males. The provision reads as follows: Any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to 2 years. Section 377 of the Singapore Penal Code, was pari materia with its Indian counterpart, and it was repealed in the year 2007.

Societal Disapproval Towards Male Homosexual Conduct

In Navtej Singh Johar, the judges of the Indian Supreme Court held that civil freedoms cannot be determined by public opinion and common morality. When a breach of the constitutional rights of a citizen or a group of citizens has been recorded by the Court, the Court will not remain a silent spectator and wait for the majority, Justice Indu Malhotra stated. Justice Dipak Misra (then CJI) and Justice DY Chandrachud have made similar observations.

On the contrary, the Singapore High Court gives primacy to the decision of the Parliament to retain Section 377A in its present form and concludes that there has been no substantial improvement in the degree of social rejection of male homosexual behaviour, as opposed to female homosexual conduct, as well as the effect that the former had on public morality.

The law continues to serve its function of safeguarding public morality by demonstrating social moral rejection of male homosexual acts, the judge said while citing debates in Parliament.

Presumption of Constitutionality Vis-a-Vis Pre Constitutional Statute

The Singapore High Court also noted that Section 377A was thoroughly discussed and comprehensively considered by Parliament which agreed to maintain it and thus the presumption of constitutionality would operate and be given full weight.

The judge had observed thus: "Section 377A is unlike many other pre-Constitution provisions that simply remained on the statute books without subsequent consideration and debate in Parliament. Views on s 377A were expressed by over a dozen Members of Parliament ("MPs"), with the Prime Minister stating that "the continued retention of section 377A would not be a contravention of the Constitution" (s 377A Hansard at col 2397). The vast majority of MPs supported the retention of s 377A. Mr Siew Kum Hong, a Nominated Member of Parliament ("NMP"), was the only member who wished for his dissent to be recorded in the Votes and Proceedings and the Official Report (s 377A Hansard at col 2444)."

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