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Criminals in Singapore
The Section 377A 3 of the Penal Code and equal protection in Singapore
Jorge Castro Urdaneta.*
Abstract: The High Court of Singapore (Lim Meng Suang v. Attorney-General 120131 3
SLR 118)[1] conclude
that the purpose of the Section 377A 3 of the Penal Code[2] -which
criminalizes any act of gross indecency between men- was not illegitimate.
Resumen: En el presente
caso, se planteó la nulidad por inconstitucionalidad del artículo 377A del Código Penal de Singapur, que
establece que cualquier persona de sexo masculino que en público o privado,
cometa o instigue a cometer, o procure o intente procurar, la comisión por
parte de alguna persona de sexo masculino, de cualquier acto de ultraje contra
la moral pública con otra persona de sexo masculino, se le impondrá una pena de
prisión de hasta dos años. En su pretensión los demandantes, sostuvieron
que dicho artículo es contrario al artículo 12 de la Constitución, que
resguardaría bajo el principio de igualdad ante la ley, la prohibición de discriminación
fundada en la orientación sexual. Para la Corte Suprema de Singapur (sentenciado
el 9 abril de 2013), la delimitación de asuntos
vinculados con la moralidad requiere evolucionar paulatinamente, advirtiendo
que tales cambios deben resolverse en el marco de la legislatura y no del poder
judicial (algo inconcebible para muchos tribunales que ejercen la jurisdicción constitucional
en Latinoamérica). Con base a diversas consideraciones, se concluyó que el
sustrato del artículo 377 A antes mencionado, consagra un conjunto de valores morales
y sociales en ese Estado: “la homosexualidad masculina y no femenina es un
delito en Singapur” y tal juicio de valor señala la Corte, no puede ser
calificado como arbitrario o discriminatorio en el contexto constitucional
According to the High Court of Singapore, the impugned provision (Section
377A 3 of the Penal Code) did not violate the right to equality as protected
under article 12 of the Constitution of the Republic of Singapore.[3]
The case: Mr. Lim
Meng Suang (“Mr. Lim”), the first plaintiff, is 44 years old and who was born
and raised in Singapore. He has his own graphic design company and has a
Masters of Fine Arts in photography. Mr. Kenneth Chee Mun-Leon (“Mr. Chee”),
the second plaintiff, is 37 years old, who was also born and raised in
Singapore. He is a graphic designer working in Mr. Lim’s company, and has a
diploma in electronics engineering. Mr. Lim and Mr. Chee met by chance in March
1997, and have been “in a romantic and sexual relationship” with each other
ever since, ie, for the past 16
years.
Besides working together, “Mr. Lim and Mr. Chee also go to the gym as
well as for movies, window-shopping and overseas holidays together. Both Mr.
Lim and Mr. Chee feel that they cannot be openly affectionate in public in Singapore.
Mr. Lim states that at most, he puts his arm around Mr. Chee’s shoulder in
public. Both Mr. Lim and Mr. Chee grew up with the knowledge that having gay
sex was illegal, but, more significantly, both of them felt the social stigma
of being gay as they were growing up, and this feeling of stigmatization
continues to date”.
Both Mr. Lim and Mr. Chee are also apprehensive “as they have heard of
male homosexuals being charged with ‘gross indecency’ under s 377A of the
current Penal Code. Mr. Lim runs The Bear
Project, an informal social group for ‘plus-sized’ gay men who engage in
activities like hiking, movies, potluck gatherings, museum-hopping and overseas
trips. However, he is wonied about getting into trouble with the authorities
and claims that it will be difficult to register The Bear Project as a society
as automatic approval is not granted to societies which relate to ‘sexual
orientation’ (…)”.
The High Court of Singapore, appointing that “Bearing in mind that the
Plaintiffs have not produced cogent and compelling evidence to establish that
such a purpose (ie, criminalizing
only male homosexual conduct and not female homosexual conduct) 12
illegitimate, and also taking into consideration certain reasons which I shall
elaborate shortly, I find that the purpose of s 377A is not illegitimate as to
warrant the court’s intervention notwithstanding that the two-step Tan Eng Hong
test is satisfied”.
For the High Court, there are two reasons for arriving at this
conclusion:
1. - The weight of historical practices vis-á-vis male homosexual
conduct suggests a basis for those practices.
The first reason “is grounded in the idea that the courts should not be
too quick to dismiss practices which have persisted and developed within the framework
of a common law legal system. It is fair to presume that if a law has withstood
the test of time, it cannot be devoid of any basis. lf the court is to
pronounce that a law which has stood for decades or centuries is wrong and
ought not to have been enacted because its bases, whatever they may be, are so flawed;
a justification of proportionate magnitude is invariably required. Where such a
justification is not evident or forthcoming, whether or not any changes should
be made to that law should be left up to Parliament. With this in mind, I proceed
to state un undeniable fact, viz, that
the common law has for a long time only proscribed male homosexual conduct and not
female homosexual conduct”.
“121 The proscription by English criminal law of only male homosexual
conduct and not female homosexual conduct is, possibly, a reflection of
religious or other customary beliefs which have long permeated English law and
politics. Ono plausible basis for such beliefs is the Judeo-Christian
traditions, which proscribed male homosexual practices in the clearest
condemnatory terms in the Old Testament of the Bible and even prescribed the
punishment of death by stoning. la comparison, there appears (o be only one
passing reference in the New Testament of the Bible lo women who ‘exchanged
natural relations for those that are contrary to nature’ (see Romans 1:26)”.
“122 It could be argued that notwithstanding the law against committing
acts of ‘gross indecency’, there were other laws relating to sexual offences
which, on their plain wording, did not focus only on male homosexual conduct but
were instead gender-neutral, ie in the
sense that the Laws could possibly relate to sexual conduct between females.
This was pointed out by the Court of Appeal in Tan Eng Hong, which noted (at
[26]) that England’s buggery laws were gender-neutral whereas s 11 of the UK
1885 Act was not. The phraseology in the now-repealed s 377 was certainly, on
its face, gender-neutral. But, it is with great diffidence and with great
respect that 1 venture a query as to whether the buggery laws of old were truly
gender-neutral. In view, the basic physiological differences between men’s and
women’s genitalia must mean that our s 377 and English sodomy laws were not gander-neutral”.
“123 We need to first examine the definitions of ‘sodomy’ and ‘bestiality’.
The word ‘sodomy’ is defined in Jowitt’s The Dictionary of English Law
(Clifford Walsh ed) (Sweet & Maxwell Limited, 1959) as unnatural sexual
intercourse by a man with another man or a woman; in criminal law, such sexual
intercourse is known as ‘buggery’. The reader is then directed by the
definition provided, to the term ‘abominable crime’, which is explained as the
term used in s61 of the UK 1861 Act (see [65] above) to describe the crimes of buggery
and bestiality. ‘Buggery’ is defined as carnal intercourse by a male person
with another person or an animal consisting of penetration per anum, while ‘bestiality’
is defined as the crime of having carnal intercourse with beasts. There is also
a reference to the term ‘infamous crime’, which is defined in s 46 of the
Larceny Act 1861 (c 96) (UK) as ‘the abominable crime of buggery, committed
either with mankind or with beast...’. The definitions of ‘abominable crime’, ‘buggery’,
‘bestiality’ and ‘infamous crimes’ are taken from Jowitt’s s Dictionary of English
Law (Daniel Greenberg gen cd) (Thomson Reuters (Legal) Limited, 3rd Ed, 2010)”.
“124 It will be seen from a closer examination of these definitions that
they clearly are not gender-neutral. If the essence of sodomy is penile
penetration per anum, then two women cannot sodomise one another. The
definition of ‘buggery’ above also refers to penetration per anum; it similarly
cannot apply to ‘intercourse’ between two women. In this regard, I do not think
that the offence of buggery applies to digital penetration. The buggery laws of
old were therefore not gender-neutral as they depend on penile penetration per
anum. The explanation in s 377 is similarly phrased: ‘Penetration is sufficient
to constitute carnal intercourse necessary to offence described in this section’
(…)”.
“126 It can, therefore, be seen that the common law tradition has never criminalised
female homosexual conduct”.
2. - Specific traditions with regard to procreation and lineage.
“127 The second reason for my conclusion at [118] above is that some
portions of Singapore society today still hold certain deep seated feelings
with regard to procreation and family lineage. This has significance, because
the courts should not readily dismiss the views of one portion of society in favors
of those of another portion of society. This is especially so where Parliament
has made clear its position on the matter”.
“128 During the October 2007 Parliamentary Debates., one of the MPs, Mr.
Baey Yam Keng, referred to a Chinese saying, ‘Bu Xiao You San, Wu Hou Wei Da’,
which, translated into English, means: ‘There are three unfilial acts, the
greatest is not to have a son.’ He explained that the Chinese portion of
Singapore society was still Largely traditional, with parents looking forward
to their children marrying and producing offspring in order to carry on the
family name; male homosexuals, just like the Plaintiffs, are likely to
appreciate that they would not be having children and are likely to, therefore,
disappoint their parents. This tradition of carrying on the family name is
focused on males rather than females, since the usual way to carry on the
family name is through the birth of a male descendant”.
Finally, the Court concludes “146. In my judgment, the object of s 377A
is clear. It criminalises male homosexual conduct as conduct that is not
acceptable in our society. Its retention was endorsed by Parliament in 2007.
Applying the ‘reasonable classification’ test, there is complete coincidence
between the differentia underlying the classification prescribed by s 377A and
the object of the provision. The differentia underlying the classification prescribed
by s 377 A therefore bears a rational relation to the object of the provision,
and therefore satisfies both limbs of the ‘reasonable classification’ test set
out at [46] above. Therefore s 377A is neither arbitrary nor discriminatory in
the constitutional context. I also find that the purpose of s 377A is not a
purpose which is so patently wrong as to render it an illegitimate purpose upon
which to base classification prescribed by law (…). 147 For the reasons set out
above, I decline to make the orders (which are in truth for declarations) sought
by the Plaintif1 and dismiss their claim that s 377A s unconstitutional and
infringes their rights under Art 12”.
Final considerations: Almost
five year of legal battle ended, when Singapore's highest court upheld the
constitutionality of Section 377 A of the country's penal code. The Supreme
Court, in this ruling, repeatedly expresses unwillingness to consider
"extra-legal" and "emotional" arguments, but in fact, those
arguments were used (ie. Bible quotes in a country were the majority is Buddhist[4]).
In Singapore, the courts have used “the
reasonable classification test” to resolve whether a statute that differentiates
is consistent with Article 12 (Constitution). Under this test, a statute that
differentiates is constitutional if the classification is based on an “intelligible
differentia”, meaning a characteristic feature that is perceptible, and if the
differentia bears a rational relation to the objective of the law.
For Yap Po Jen,
“same sex marriage may be newer than cell phones and the Internet, but we are decaling
herein with the criminalization of private consensual activity between
non-familial adults. Furthermore, in tethering Art 12 to the original
legislative purpose of the colonial legislators back in 1938, the High Court
may have returned Singapore to a world without touch-tone phones and digital
computers”.[5]
Singapore's legislature, in 2007 removed laws criminalising heterosexual
anal and oral sex, so the debate will go on.
**Universidad Católica Andrés Bello, Abogado. Universidad Central de Venezuela, Especialista en Derecho Administrativo; cursante del Doctorado en Ciencias, mención Derecho.
Notes:
[2] Section 377A 3:“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”.
[3] Article 12 of the Constitution of
the Republic of Singapore is entitled "Equal protection" and
reads as follows: “12. — (1) All persons are equal before the law and entitled
to the equal protection of the law. (2) Except as expressly authorized by this
Constitution, there shall be no discrimination against citizens of Singapore on
the ground only of religion, race, descent or place of birth in any law or in
the appointment to any office or employment under a public authority or in the
administration of any law relating to the acquisition, holding or disposition
of property or the establishing or carrying on of any trade, business, profession,
vocation or employment. (3) This Article does not invalidate or prohibit — (a)
any provision regulating personal law; or (b) any provision or practice
restricting office or employment connected with the affairs of any religion, or
of an institution managed by a group professing any religion, to persons
professing that religion”.
[5] Yap Po Jen. Section
377A and Equal Protection in Singapore: Back to 1938?. Singapore Academy of
Law Journal, 2013, v. 25 SAcLJ (September), p. 630-640, p. 640.
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