What fate for 377A? Choose you this day

Academic Views / Friday, April 8th, 2022

Professor of Law Michael Hor (Hong Kong University) analyses the Court of Appeal’s recent judgement concerning the criminalisation of gay sex under Section 377A of the Penal Code. 

Editors’ Summary
In February, the Court of Appeal held that the state was bound by the Attorney-General’s assurance that he would not prosecute 377A cases. This marks the first time in the history of the Singapore legal system that a law has been judged unenforceable, Hor notes. However, on that same basis, the Court refused to rule on whether 377A is either constitutional or unconstitutional. The Court has thus chosen to go along with the Government’s decades-old political compromise. Hor argues that this is not a fair resolution of the dispute, since it leaves one side vulnerable to multiple harms. He explains how keeping 377A on the books means that gay men could still be caught out by other laws and even civil contracts such as home rental agreements. The compromise also underestimates the symbolic power of 377A: even if unenforced, its existence has harmful psychological effects on gays and the gay community, and feeds into prejudice and intolerance, which can even be expressed as physical violence against gays. Hor questions the argument that a firm and final removal of the provision will result in greater divisiveness, pointing out that similar moves elsewhere have not heightened polarisation. He is sceptical of the Government’s idea of polling public opinion, observing that many Singaporeans are likely to take their cue from the fact that the Government does not think there is anything wrong with leaving the law on the books. Either the Government or the Courts should stop sitting on the fence and come down in favour of removing this harmful piece of legislation, Hor concludes.

A popular Christian hymn goes “once to every man and nation, comes the moment to decide”. When the Court of Appeal was faced with such a moment in the context of the constitutionality of 377A — the famous, or infamous, provision which criminalises sexual activity between males — it took its time. A little over a year after arguments closed, the Court issued its 149-page judgement in February 2022. About half of this explained why the Court did not in fact have to decide, while the other half offered technically gratuitous, non-binding observations (bearing the normally derisive label of obiter dicta) about how it might have decided. 

The history of 377A litigation shows just how difficult it was for the court to make a decision. In the previous round of litigation in 2012, the Court of Appeal ruled decisively that the plaintiffs had standing (or locus standi) to challenge the law, notably holding that there was an “arguable case” in favour of unconstitutionality. This was followed in 2014 by another Court of Appeal judgement, which decisively held that 377A was constitutional, and in a manner that left one wondering whether the plaintiffs ever had an “arguable case” at all. 

There matters stood until a landmark Indian Supreme Court decision in 2018 declared the related 377 (carnal intercourse against the course of nature) unconstitutional, dramatically reversing its own ruling just five years before. This spurred a second round of litigation in Singapore, which culminated in the February 2022 judgement deciding not to decide. In short, the Court seems to have adopted three different positions at different times: inclining towards unconstitutionality in 2012, decisively upholding its constitutionality in 2015, and sitting on the fence in 2022.

The Supreme Court Building and its old colonial predecessor on the right. Section 377A was added to Singapore’s Penal Code in the 1930s. [Photo: Jack Lee]

A possible reason for the indecision

Choosing what to decide, and whether to decide at all, was clearly no cut and dried matter for the Court of Appeal. If the plaintiffs had been clearly without standing, it would not have taken a year for the justices to see that right off the bat. The eventual decision not to decide and the judgment that came with it left tantalizing clues as to how the court would have decided had they chosen to decide. There was unanimity on all substantive points — that the right to due process and the right to free speech were not implicated — save one that teases the observer just as the second of a three-part movie trilogy might. 

The one matter that the Court left hanging was the constitutionality of 377A under the right to equality or equal protection. It is here that the Court left dangling two contesting conceptions of that right. Based on one conception of equality, the Court of Appeal would have required the Government to show strong reasons for criminalizing (male) gay sex while not prohibiting lesbian or heterosexual activity. On the alternative conception — essentially the approach adopted by the Court in 2015 — the Court would have applied a test requiring a lower level of scrutiny of the Government’s reasons. The Court did not say which of these conceptions it preferred. It is technically possible for the Court to adopt greater scrutiny and yet still rule that 377A passes muster, but if that were the situation, it would have been easy enough for the Court to say that 377A is constitutional, whichever the test adopted. But that was not what the Court said.

One is left to speculate what might have transpired backstage, but it is possible that the five Judges hearing the appeal did not agree on which test the court should adopt, and that the choice between the alternative tests had a crucial bearing on the outcome. If the Court had been unanimous that 377A was constitutional, it would have been simple enough for it to have said something like, we decided this in 2015 and nothing has changed since then. Conversely, if the Court had been unanimous that it was unconstitutional, it would have been odd for it to avoid a decision on the procedural ground of locus standi, especially as the substantive issues had been fully argued and even the Attorney-General did not object to the claim on grounds of locus standi (as the Attorney-General did before in 2012). 

One is therefore left with the fascinating possibility that the Judges were divided on the substantive claim with regard to the right to equality because they were divided on the corresponding degree of scrutiny that different conceptions of that right prescribes. Which position commanded the majority is difficult to tell, but in such a situation, a decision not to decide would make sense if the Court did not want to make a decision only to have one, or worse two, dissenting judgements weighing it down. It is understandable for the Court to think that if it could not speak with one voice on such a socially controversial issue, it should not speak at all. But this stand comes at a heavy price.

The Court’s reasoning

The reasoning behind this recent fence-sitting posture was deceptively simple. The government’s stated policy, first articulated in 2007 by the Prime Minister and franked by the Attorney-General in 2018, was to retain but not proactively enforce 377A, at least for consensual adult activity in private. The Court of Appeal anointed this political compromise with legal force through the doctrine of substantive legitimate expectations. 

The Attorney-General, who constitutionally holds the discretion to prosecute, had declared publicly that 377A would not be enforced in this manner. The Court said this created legitimate expectations  that this position would not be changed without reasonable notice. Should the Attorney-General, in the future, change his mind and announce that prosecutions will commence, this may only be done with reasonable notice. All activity before such an announcement is cloaked with immunity from prosecution, and future prosecutions may only be prospective — that is, for activity after reasonable notice has been given.

The Court of Appeal reasoned that since it has now blessed the prosecutorial moratorium with binding effect, the plaintiffs no longer had standing, or locus standi, to pursue the claim of unconstitutionality. Once there is no plaintiff with a sufficient interest in the constitutional status of the 377A, the Court need not, nay cannot, decide on the substantive claim.

This unprecedented state of affairs cries out for comment. 377A is the first criminal offence in the history of Singapore’s legal system to have achieved this status of what may be described as the living dead. What is immediately striking is how serious the Court is about enforcing the moratorium. Although the Attorney-General’s declaration on non-prosecution was qualified — consensual, adult, private — the Court-crafted moratorium is to be on all 377A prosecutions. No doubt, practically, if sexual activity (gay or not) were to be nonconsensual, were to involve underage-individuals, or were to be done in public, there are other sexual-orientation-neutral offences that can be employed in any event. But the symbolic force of a total moratorium on 377A should not be underestimated. For all practical purposes, 377A is there, but might as well not be.

The Court went further to declare that certain other provisions of the Penal Code and Criminal Procedure Code were to be suspended with respect to 377A — provisions that create duties on members of the public to report offences and public servants not to conceal knowledge that such offences have been or will be committed. 

Indians demonstrating for equal rights. In 2018, the Indian Supreme Court reversed its earlier ruling and ruled the criminalisation of same-sex relationships to be unconstitutional. [Photo: Ramesh Lalwani]

377A’s long shadow

Our problems do not end there, unfortunately. The Court did not mention other provisions which might also be similarly affected. Penumbral offences of attempt, abetment and conspiracy come to mind. So too do the relatively new offences of sexual grooming, which are predicated on an intention to commit any of a list of sexual offences, including 377A. Since the Court did not pronounce on these other provisions, we are left to guess whether prosecution under these provisions come within the umbrella of the 377A moratorium. If it turns out that they do not, then it will be difficult for the Court of Appeal to maintain its view that the mere existence of a non-prosecutable 377A cannot give plaintiffs sufficient interest to have standing to mount a constitutional challenge.

What is troubling is the Court’s express authorization for 377A to be used for police investigations. The stated reason is that activity captured by 377A may also constitute offences under other provisions. The Court does not want to hamper investigation for the purpose of prosecuting those other offences. The reasoning is not easy to follow. If the target of investigation is not 377A but other offences, then why can police investigations not proceed under those offences? The need to investigate under 377A only arises when the activity concerned is not covered by other offences, and the Court holds that such activity is not prosecutable. If, for some reason, an investigation under 377A confers certain powers or advantages (to the police) that are not available under those other offences, then this discrimination against those who might engage in gay sexual activity must surely give them sufficient interest and therefore locus standi to challenge 377A. The Court cannot have its cake and eat it.

Going beyond the criminal law, questions remain about whether, for example, a landlord may terminate a tenancy on the basis of “illegal activity” in the form of a violation of 377A being carried out on the premises.  Rental clauses giving landlords, or the HDB, such a power are not at all uncommon. If the Court were to construe the moratorium to cover prosecution and only prosecution, real harm can still potentially befall those who might breach 377A by its mere existence. Once again, surely this would completely undercut the Court’s conclusion that they no longer have sufficient interest to have standing to challenge the constitutionality of 377A.

Discriminatory social impacts

Going beyond the law, there is substantial scholarship on the adverse impacts of even unenforced laws that discriminate against categories of persons. A host of adverse sociological effects flow from the mere existence of such  provisions, even if unprosecuted. Such legislation can anchor, buttress or encourage low self-esteem and otherness on the part of individual gay persons and of the gay community. It stands in the way of acceptance or at least tolerance. It feeds prejudicial sentiments, disapproval and ostracism. When these emotions reach a certain pitch, it is conceivable that they can in turn fuel abuse, harassment and bullying, physical and psychological. 

If we replace the discriminated class with, say, race or gender, we quickly see that the “mere” existence of provisions such as 377A is not “mere” at all. Imagine a law which prohibits (with penal sanctions) women from disobeying their husbands. It is perhaps only slightly less horrific if we are told that it is unenforced but has, for some reason, to remain in the Penal Code because of conservative sentiments. Imagine another law which prohibits members of a majority race (say, Cardassians) from having sexual relations with members of a minority race (say, Bajorians). The evil which flows from such a provision, even with guarantees of non-prosecution, surely cannot be denied. It is twice cursed — it curseth the Bajorians who struggle with racial inferiority and insecurity, and the Cardassians who nurse feelings of racial superiority and contempt towards the Bajorians.

To deny locus standi to challenge such provisions if assurances of non-prosecution are given is to ignore the profound impact the “mere” existence of such provisions have, in the context of the historical and cultural discrimination that brought them into existence.

A 30-year political impasse

Technically, the Court’s ruling on locus standi is independent of the question of whether this “political compromise” is a good thing at all. But the Court seemed at pains to say that because society is so badly divided on the phenomenon of homosexuality, the political process is superior to its judicial counterpart in resolving the dispute. Judicial solutions are all or nothing, political processes can be compromises which leave both parties with something. Worse still, judicial solutions end debates and may create pushback that worsens social divisions.

There can be no doubt that a political solution is preferable, but the question is what should the courts do when the political process has failed to yield a coherent solution. There is wisdom in the Court’s recognition of the limitations of law and its judicial role. But if we take the start of this political compromise to be sometime in the mid-1990s when police gay entrapment operations ceased, it is now some 30 years hence. The reason the Court gives for not deciding is that a premature judicial decision might foreclose constructive debate which can bring the disputing factions to an agreement of sorts. 

Are the conflicting positions of the pro- and anti-377A camps any closer after 30 years of debate? It would be difficult to find evidence of such a rapprochement. The reason why is not difficult to guess — the pro-377A faction proceeds from a religious a priori “it is written” basis. No amount of debate in the secular realm is going to have any influence on that. To shut down this “debate” may not be such a bad thing if it is going to be like chickens talking to ducks. Time, unfortunately, does not always heal all.

A Pink Dot event in Singapore. [Photo: Jnzl]

Ending 377A need not deepen divisions

The Court draws on the experience of abortion rights and the US Supreme Court’s decision in Roe v Wade entrenching abortion rights in the US Constitution, which some have theorized made matters worse by galvanizing the opposition. The late Ruth Bader Ginsburg, Associate Justice of the Supreme Court, was cited as one who felt this was what happened. It is beyond the scope of this brief discussion to look closely into the correctness of this theory, but suffice it to say that the Ruth Bader Ginsburg who feared that Roe v Wade was premature and may have made it worse for abortion rights was the same woman who, as Associate Justice of the US Supreme Court, had absolutely no difficulty in siding with a pro-gay rights position in a string of landmark judicial decisions striking down various forms of discrimination against gays, including criminalization of same sex activity.

Nor does the experience in other jurisdictions, which have in one form or other repealed or struck down anti-gay penal legislation, lend support to the fear that a judicial decision in Singapore in 2022 striking down 377A (“gross indecency”) would intensify unacceptable social division. It is now about four years since the Supreme Court of India struck down 377 of its Penal Code and there is no sign that the opposition has been galvanized into resisting it. It bears remembering that 377 (“unnatural intercourse”) was repealed without any wailing and gnashing of teeth in 2007 in Singapore. The United States Supreme Court in 2003 (Justice Ruth Bader Ginsburg collaborating) declared “anti-sodomy” legislation unconstitutional — again with no apparent Roe v Wade type effect. In Hong Kong, although decriminalization of same sex activity was achieved legislatively, the court led the way to insist on non-discrimination in the context of age of consent to sexual activity and higher punishment for same sex offences, and more strikingly in the context of civil (non-criminal) matters like spousal visas and joint taxation. Again, there has been no discernible intensification or opposition to these anti-discrimination decisions. Opposition did not result in the kind of zombie apocalypse (Roe v Wade) scenario feared by the Court in India, the US or Hong Kong.

The Court appears to approve of the political compromise of retaining 377A but not enforcing it. There is no doubt that the Government and the Courts have shown good faith in the belief that this holding position is the best thing to do under the circumstances. Indeed, Minister K. Shanmugam has pushed ahead recently with public opinion surveys on this very matter and has given assurances that the government is working on the matter

But the point of the foregoing discussion is that the compromise comes at an immense cost. The image often presented is that the Government takes a neutral position while the competing parties are left to debate this and come to some live-and-let-live resolution. The image is flawed. The Government and the Court are not really “sitting on the fence” — that gives the impression of both contesting parties sitting comfortably on their side of the fence, perhaps sipping teh tarik and munching vadai. The reality is that the party targeted by 377A is suffering immeasurable harm to their well being even with the prosecutorial moratorium in place. 

Efforts by the Government to gauge public opinion on 377A are to be encouraged, but even here the mere existence of 377A has the power to skew that same public opinion. Singapore is perhaps unique in the degree of trust its citizens place in the Government. It is not inconceivable that in this context, many would think there is something wrong with 377A-proscribed activity simply because the Government has chosen to preserve it in the law. Remove 377A — one need not be fussy about whether it is the Government or the Courts doing it — and this kind of vicarious legitimacy will disappear with it. The Joshuaic challenge beckons, “Choose you this day”, not some time in the future.

Michael Hor is with the Faculty of Law at the University of Hong Kong, and served as its Dean from 2014 to 2019. He was previously a Professor of Law at the National University of Singapore.