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Table of Contents

CIRCUMSTANCES OUT OF WHICH THIS APPLICATION ARISES

ISSUES ARISING IN THIS APPLICATION

PRELIMINARY POINTS

SUMMARY OF THE PLAINTIFF’S CONTENTIONS

PLAINTIFF’S CONTENTIONS

I. IS S 377A PRIMA FACIE “LAW” IN ACCORDANCE WITH ARTICLES 9(1) AND 12(1) OF THE CONSTITUTION?

A. Laws must comply with the fundamental rules of natural justice, which, in the context of judicial review of legislation, is co-terminus with the principles of the rule of law.

B. S 377A, by criminalising victims of homosexual assault and homosexual domestic abuse, actively undermines access to justice, contrary to the fundamental rules of natural justice.

C. S 377A, by being patently vague, undermines legal certainty and is contrary to the fundamental rules of natural justice.

D. S 377A, by criminalising a natural and immutable attribute, is entirely arbitrary, contrary to the fundamental rules of natural justice.

1. Laws that punish individuals only on the basis of their natural and immutable attributes are absurd and arbitrary.

2. Given that fundamental liberties are at stake, the Plaintiff’s onus of proof ought to be lower than “balance of probabilities”.

3. Comparative constitutional jurisprudence has endorsed the proposition that homosexuality is an immutable attribute.

4. Professional scientific bodies and prominent “ex-gays” have announced that “gay-reparation” programmes have failed, and caused immense harm.

5. Prime Minister Lee Hsien Loong (“PM Lee”) and then-Minister Mentor Lee Kuan Yew (“MM Lee”) has accepted that homosexuality is an attribute.

6. S 377A is therefore akin to criminalising left-handedness or blue eyes and is thus inherently “absurd” and “arbitrary”, contrary to the rules of natural justice.

If homosexuality is a natural attribute, criminalising homosexual conduct is akin to criminalising the attribute of homosexuality itself.

II. IS S 377A CONSISTENT WITH ARTICLE 12(1) OF THE CONSTITUTION?

A. S 377A, by being patently vague, and by unjustifiably differentiating between male and female homosexual acts is not founded on an intelligible differentia.

B. Where a statute purports to classify an individual only on the basis of an immutable attribute, this Court ought to apply a test that is more stringent than the “rational relation” test.

C. Given that homosexuality is not an incontrovertible immorality, nor does it harm the public order, the advancement of “morality” is not a normatively sound social object.

1. The only “social object” that s 377A has a conceivable relation to is the object of upholding “society’s morality”.

2. Unlike acts such as killing or adultery, homosexuality is not incontrovertibly immoral.

3. A finding that s 377A is unconstitutional is consistent with Singapore’s communitarian, non-liberal public law framework.

D. The fact that female homosexuals have ceased to be criminals with the repeal of s 377 of the Penal Code further shows that Singapore society’s “morality” does not demand the disapprobation of homosexuality.

E. Not only does s 377A bear no conceivable, let alone rational, relation to the object of alleviating the spread of Human Immunodeficiency Virus (“HIV”), a law like s 377A would in fact actively undermine efforts to prevent and mitigate HIV.

1. Any argument that s 377A furthers HIV prevention introduces a post-hoc justification that this Court should not accept.

2. S 377A, by being both patently over and under-inclusive in addressing HIV problem, is entirely divorced from the social object of preventing the spread of HIV.

3. In fact, a law such as s 377A actively undermines the object of preventing and mitigating the spread of HIV.

F. S 377A, although going “some way” in reducing the incidence of non-consensual, underage or public homosexual acts, nevertheless bears no rational relation to this object.

1. Our Court of Appeal clarified that a statute does not survive the “rational relation” test by only going “some distance” towards achieving an object.

2. S 377A is patently over-inclusive in reducing the incidence of non-consensual, underage or public homosexual acts.

G. S 377A is over-inclusive by making criminals of family and friends of gays.

H. Comparative and international jurisprudence in both liberal and non-liberal jurisdictions have held statutes criminalising homosexuality to be inconsistent with their respective constitutional equality provisions.

I. Eminent jurists and international organisations have pronounced that criminalising homosexual activity constitutes gross violation of international human rights norms.

J. Deference to Parliament in and of itself cannot be sufficient ground for upholding the constitutionality of s 377A.

K. Taking all the factors into account, s 377A fails both the rational relation and the strict scrutiny test, and is therefore contrary to Article 12(1) of the Constitution.

CONCLUSION

CIRCUMSTANCES OUT OF WHICH THIS APPLICATION ARISES

1. The facts of the present application are not in dispute and stated succinctly by the Court of Appeal in Tan Eng Hong v Attorney-General, [2012] SGCA 45 (“Tan Eng Hong (Standing)”).

2. On 9 March 2010, the Plaintiff and another male person, both adult males in their forties, were arrested for engaging in oral sex in a public toilet cubicle.

3. The Plaintiff was subsequently detained on investigation and, on 2 September 2010, charged under s 377A of the Penal Code (Cap 224, 2008 Rev Ed Sing) (“Penal Code”). For convenience, s 377A of the Penal Code will subsequently be referred to simply as “s 377A”.

4. On 24 September 2010, the Plaintiff brought the present application against the Defendant seeking a declaration that s 377A, by being inconsistent with Articles 9, 12 and 14 of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“Constitution”), is void pursuant to Article 4 of the Constitution.

5. On 15 October 2010, the Prosecution informed the Plaintiff that the s 377A charge against him had been withdrawn and substituted with one under s 294(a) of the Penal Code for the commission of an obscene act in a public place.

6. The Defendant then applied by Summons No. 5063 of 2010 to strike out this application pursuant to O 18 r 19 and/or the inherent jurisdiction of this Court. On 7 December 2010, the Assistant Registrar (“AR”) struck out the application.

7. The Plaintiff appealed the AR’s decision to strike out the application by Registrar’s Appeal No 488 of 2010. The High Court subsequently dismissed the appeal in Tan Eng Hong v Attorney-General, [2011] 3 SLR 320.

8. The Plaintiff appealed to the Court of Appeal by Civil Appeal No. 50 of 2011. In a unanimous 102-page judgment, the Court of Appeal allowed the Plaintiff’s appeal and therefore permitted the present application to proceed.

ISSUES ARISING IN THIS APPLICATION

9. Is s 377A prima facie “law” in accordance with Articles 9(1) and 12(1) of the Constitution?

10. Is the criminalisation of male homosexual conduct, to the exclusion of female homosexual and all heterosexual conduct, consistent with Article 12(1) of the Constitution?

PRELIMINARY POINTS

11. At the outset, the Plaintiff makes three preliminary observations.

12. First, the Plaintiff acknowledges that many constitutionally valid laws have a sound basis in morality. The important role notions of morality and the common good play in Singapore legislation is reflective of the non-liberal, communitarian emphasis of Singapore’s public law framework. Our constitutional jurisprudence rightly eschews a broad definition of “personal liberty” under Article 9(1): Lo Pui Sang and Others v MamataKalpidev Dave and Others (Horizon Partners, intervener) and other appeals,[2008] 4 SLR(R) 754 (SGHC) (“Lo Pui Sang”). This reluctance is borne from a constitutional ethos which recognises the crucial importance not only of liberty but of ordered liberty, which declines to put the individual on an isolated pedestal but situates him within the community of his peers, and which understands that the fundamental liberties of the individual have substance only to the extent that he discharges relational obligations to his community and country.

13. Despite the accuracy of the above propositions, however, not all “moralities” have equal normative worth, and not all laws purporting to advance the society’s “morality” are ipso facto constitutionally valid. The Plaintiff expands on these propositions in Part IIF.

14. Second, the Plaintiff wishes to make it clear that this case relates only to the constitutionality of criminalising people by virtue of their sexual orientation. It is not about the merits of legalising homosexual marriage or of extending other social benefits to homosexuals. These issues have absolutely no bearing on the resolution of the present dispute, which has seen the Plaintiff “arrested, investigated, detained and subsequently charged” under an arguably unconstitutional s 377A: Tan Eng Hong (Standing ).

15. Third, although the Plaintiff acknowledges that the Legislature is more competent in assessing matters of social policy, Parliamentary ipse dixit cannot ipso facto supply the constitutionality of a statute. Such an approach deems as constitutional laws criminalising left-handedness or blue eyes, or laws permitting slavery and discrimination on racial and gender grounds, as long as the popular mood demands it. The Plaintiff is therefore utterly shocked by the following comment by Member of Parliament (“MP”) Indranee Rajah, who advocated precisely such an approach :-

Mr Siew also talked about public morality as being the wrong touchstone. I think he said that public morality has been cited as the basis for legislation to enforce slavery, discrimination against racial and religious minorities, discrimination against women, etc. But in a way, that exactly proves the point. At the time when they had slavery, there were laws in place which reflected the public morality of that time. If you had been in America at that time when they had slaves and you had said to somebody, "You should not have slaves because slavery is wrong", nobody there, at that time, would have agreed with you because the society was such that that was the correct thing at that time. And that is precisely the point because societies do evolve. Clearly, we have evolved to a stage where we now regard slavery as wrong. We certainly regard discrimination on racial and religious grounds as wrong. But in some places, that is still regarded as correct, which just brings us back to the point that in each case, it is a question of what society is prepared to accept. [emphasis added]

16. The above excerpt clearly suggests that MP Indranee Rajah would regard legislation authorising slavery, and discrimination on grounds of gender and race, as lawful as long as this is “what society is prepared to accept”. The Plaintiff urges this Court not to align itself with the erroneous views of MP Indranee Rajah, which does grievous injustice to the Constitution and sanctions not the rule of law, but the rule of the majoritarian mob. Although deference to Parliament may be appropriate in most cases, deference can never be an answer where there has been a gross breach of fundamental liberties.

SUMMARY OF THE PLAINTIFF’S CONTENTIONS

17. The Plaintiff now outlines his arguments.

18. First, s 377A is contrary to the rule of law, and hence the fundamental rules of natural justice, for three reasons. There are three reasons for this. Firstly, s 377A undermines access to justice to victims who most deserve the law’s protection, such as men who have been sexually assaulted by other men. Secondly, s 377A, by being patently vague, completely undermines the principle of legal certainty. Thirdly, s 377A is “absurd” and “arbitrary” because it punishes a person merely for his immutable and fundamentally integral attribute. The Plaintiff will adduce evidence to show that sexual orientation (as opposed to sexual behaviour) is, more likely than not, an immutable characteristic rather than a voluntary choice. If this Court accepts that homosexuality is an attribute not a choice, it is clear that s 377A is in breach of the fundamental rules of natural justice because it penalises an individual for an involuntary attribute just like a law penalising left-handedness, or blue eyes. The Plaintiff will pre-empt and rebut a possible counter-argument that s 377A does not punish a homosexual’s natural attribute as it only penalises a voluntary conduct (sexual behaviour) arising from that attribute (sexual orientation).

19. The Plaintiff’s second point is based on an Article 12(1) analysis. S 377A fails the “intelligible differentia” and “rational relation” standard demanded by Article 12(1) of the Constitution.

20. S 377A is inherently vague and unintelligible and as such does not meet the “intelligible differentia” requirement. It is impossible on the plain wording of the provision to know what is meant by 'gross indecency', what precisely its reach is, and under what range of circumstances men will become classified under it.

21. Even if (which is denied) s 377A is founded on an intelligible differentia, the differentia bears no rational relation with any social object. The Plaintiff will argue that, because s 377A purports to provide for differential treatment to a class of individuals only on the basis that they have a different natural attribute, an equality analysis more stringent than the “rational relation” standard (such as the “strict scrutiny” standard) ought to be applied in determining whether the s 377A contravenes Article 12(1).

22. S 377A fails both the “strict scrutiny” test and even the “rational relation” test for five reasons. Firstly, it is inaccurate to state that s 377A advances “society’s morality”, because what it does is only to prioritise one group’s conception of “morality” over another’s. Secondly, the fact that lesbianism has ceased to be criminalised further buttresses the Plaintiff’s argument that the social object of advancing “morality” is not a normatively strong one. Thirdly, s 377A is patently unsuited to addressing the problems posed by HIV. Fourthly, s 377A bears no rational relation to the object of preventing non-consensual or underage sex. Fifthly, s 377A, by criminalising male victims of same sex abuse, and family and friends of gay men who do not actively discourage them from having homosexual relationships, is patently absurd, arbitrary and over-inclusive.

23. Thus, taking into account (1) that s 377A is not founded an intelligible differentia; (2) that even if it were, the only basis for differentiation is a natural and immutable characteristic; (3) that s 377A is not an incontrovertible immorality hence s 377A cannot be conceived as actually advancing society’s “morality”; (4) that lesbianism has been positively decriminalised in spite of assertions that homosexuality is against Singapore’s morality; (5) that s 377A bears no rational relation to the objects of advancing public health and reducing non-consensual sex; (6) that s 377A harms the object of advancing family life because family and friends of gays may be implicated as abettor – s 377A is a gross breach of the Plaintiff’s right to equality before the law enshrined by Article 12(1) of the Constitution.

24. Finally, the Plaintiff will provide this Court with an overwhelming array of persuasive international and comparative jurisprudence which evidences a global judicial consensus that whatever test is applied, criminalisation of private, adult, consensual same-sex sexual relations violates the universal principle of equality before the law and equal protection of the law.

PLAINTIFF’S CONTENTIONS

I. IS S 377A PRIMA FACIE “LAW” IN ACCORDANCE WITH ARTICLES 9(1) AND 12(1) OF THE CONSTITUTION?

A. Laws must comply with the fundamental rules of natural justice, which, in the context of judicial review of legislation, is co-terminus with the principles of the rule of law.

25. It is trite that the formal validity of an Act of Parliament is not sufficient to constitutionally deprive the Plaintiff of personal liberty under Article 9(1), or to accord the Plaintiff equal protection under Article 12(1), if it does not comply with the “fundamental rules of natural justice that had formed part and parcel of the common law of England that was in operation in Singapore at the commencement of the Constitution”: Ong Ah Chuan v Public Prosecutor,[1979-1980] SLR(R) 710 (UKPC) (“Ong Ah Chuan”).

26. What, though, is the content of the fundamental rules of natural justice? In Yong Vui Kong, our Court of Appeal clarified this test, holding that purported legislation is not “law” if it is “of so absurd or arbitrary a nature that it could not possibly have been contemplated by our constitutional framers as being “law” when they crafted the constitutional provisions protecting fundamental liberties ”.

27. The Plaintiff submits that, in the context of judicial review of the constitutionality of legislation, the fundamental rules of natural justice (referred to henceforth as the Ong Ah Chuan rules) refer not only to the administrative law rule against bias and the hearing rule, but also to wider principles of the rule of law. The wider principles of the rule of law include not only procedural justice, but limited principles of substantive justice. The fact that the Ong Ah Chuan rules do not exclude substantive justice is apparent from the fact that the Ong Ah Chuan rules control not just the consistency of laws depriving individuals of life and liberty with Article 9(1) (where procedural justice is relevant), but also that of all laws with Article 12(1) (where, arguably, only substantive justice is relevant). By holding that the Ong Ah Chuan rules prohibit “absurd” and “arbitrary” laws, the Court of Appeal in Yong Vui Kong held that laws must be supplied not only with valid processes, but also with valid results.

28. This submission is not inconsistent with the Court of Appeal’s holding in Yong Vui Kong v Attorney-General,[2011] 2 SLR 1189 (SGCA) (“Yong Vui Kong (Clemency)”) that the Ong Ah Chuan rules are not “different rules”, and are “the same in nature and function” as the administrative law rules of natural justice. Chan CJ did not hold that the Ong Ah Chuan rules and the administrative law rules of natural justice must be precisely congruent – in fact, by holding in Yong Vui Kong that the Ong Ah Chuan rules precluded “absurd” and “arbitrary” laws, Chan CJ acknowledged that the Ong Ah Chuan rules are broader than the administrative law rule against bias and the hearing rule.

29. This submission is also consonant with the seminal precedent of Chng SuanTze v Minister of Home Affairs and Others and Other Appeals, [1988] 2 SLR (R) 525 (SGCA) (“Chng SuanTze”), where the Court of Appeal linked the Ong Ah Chuan rules prohibiting arbitrariness to the rule of law.

30. What does it then take for legislation to adhere to the rule of law? The European Commission for Democracy of Through Law Report on the Rule of Law(“Venice Report”)provides a useful guide. For the purposes of the present constitutional challenge, three principles are relevant: prohibition of arbitrariness, legal certainty, and access to justice.

B. S 377A, by criminalising victims of homosexual assault and homosexual domestic abuse, actively undermines access to justice, contrary to the fundamental rules of natural justice.

31. The Plaintiff makes two submissions under this heading.

32. First, any man who has been raped by another man commits an offence pursuant to s 377A. In order to appreciate why this is so, it is apposite to state the relevant wording of s 377A :- Any male person who… commits… any act of gross indecency with another male person, shall be punished with imprisonment for a term…

33. The wording of s 377A makes no distinction, as between two men who commit sexual intercourse, between the man who forced himself upon the other man and the other man who never consented to the sexual assault. Given that the act of sexual intercourse with another male person is irrefutably an “act of gross indecency” under s 377A, and both men have engaged in sexual intercourse notwithstanding the fact that one of them did not consent to it, the man who did not consent to the sexual assault himself commits an “act of gross indecency” and is therefore guilty of an offence pursuant to s 377A. This wide interpretation of s 377A finds support in the High Court precedent of Ng Huat v Public Prosecutor, [1995] 2 SLR(R) 66 (SGHC) (“Ng Huat”),where Yong CJ held :-

My sympathies lie with those perfectly respectable gentlemen who may well be innocent "victims" of a grossly indecent act. It is true that they may find themselves named within the charge as persons "with" whom the offence of gross indecency has been committed. Nevertheless, I do not see any real cause for concern. If they did have any homosexual tendencies, they would almost invariably have been charged with the offence as well. The very fact that they are not similarly charged can only attest to their innocence of the act. No aspersions are being cast on their sexual proclivities. Technically, of course, as consent is not an element of the s 377A offence, they could also be charged with the offence, but I am confident that the judicious exercise of prosecutorial discretion will prevail to ensure that such travesties of justice do not occur. [emphasis added]

34. Yong CJ clearly held that male victims of male sexual assaulters similarly commit an offence under s 377A, and the only thing preventing them from conviction is the good faith exercise of prosecutorial discretion not to charge them under s 377A. This Court should remember, of course, that the good faith exercise of prosecutorial discretion does not ipso facto supply the constitutionality of a statute pursuant to the Court of Appeal’s ruling in Tan Eng Hong (Standing).

35. A man who suffers, and is in danger of suffering more, sexual assaults, therefore lays himself open to a s 377A prosecution if he reports his situation to the police. A man who suffers sexual assault may fear reporting the assault to the police, even if no prosecutor in his right mind would prosecute such a victim. A woman would not be so disadvantaged given that this is no female equivalent of s 377A. S 377A egregiously silences male victims of sexual assault by another male.

36. The Plaintiff’s second submission is as follows. Men who suffer domestic abuse in the hands of their male partners have absolutely no recourse in the law. The fear of prosecution deters such men from reporting their predicament to the authorities. S 377A creates criminals of a class of victims most in need of the law’s protection.

37. The Defendant may argue that it is fanciful to suppose that a male victim of sexual assault or domestic abuse would be prosecuted under s 377A. The Plaintiff reminds this Court that there is nothing fanciful about the scenarios painted above, as our Court of Appeal correctly observed in Tan Eng Hong (Standing). The Plaintiff also reminds this Court that it must take s 377A as it finds it, and to test the constitutionality of s 377A in relation to its full amplitude, because an executive “promise” not to “proactively enforce” s 377 does not amount to a legally binding promise: Tan Eng Hong (Standing).

38. The Plaintiff reminds this Court that these submissions that s 377A impedes access to justice has been preliminarily endorsed by the Court of Appeal in Tan Eng Hong (Standing) :- One unwanted effect of s 377A is that it may also make criminals out of victims. We will list three illustrations to highlight this point. First, a man who suffers domestic abuse at the hands of his male partner may be reluctant to report it to the police as police investigations may reveal that he (ie, the victim of domestic abuse) is guilty of an offence under s 377A. Second, if a man who has been sexually assaulted by another man reports this to the police, he may lay himself open to a s 377A charge as s 377A is silent on consent. While a charge in such a scenario may be unlikely, the fear of being charged may be sufficient to deter some victims from coming forward. Third, lest it is thought that these scenarios are fanciful, we refer to a reported incident where a man who was robbed after having sex with another man reported the theft to the police and received a warning under s 377A (see “This teacher was caught having sex in public, police tells school”, The New Paper (21 February 2005)). [emphasis added]

39. This reasoning has similarly been endorsed by the English Home Department and the Scottish Home Office in theReport of the Committee on Homosexual Offences and Prostitution (“Wolfenden Report”) :- [110] We know that blackmail takes place in connection with homosexual acts. There is no doubt that a good many instances occur where from fear of exposure men lay themselves open to repeated small demands for money or other benefit, which the previous conduct makes it difficult for them to resist… Most victims of the blackmailer are naturally hesitant about reporting their misfortunes to the police…

[111] … At the least… the present law does afford to the blackmailer opportunities which the law might be expected to diminish…

[112] … Blackmail is a pernicious social evil, and we regret that any unnecessary obstacle should be put in the way of bringing it to light.

40. Therefore, s 377A, by making criminals of victims most in need of the law’s protection, is patently arbitrary, over-inclusive and irrational.

C. S 377A, by being patently vague, undermines legal certainty and is contrary to the fundamental rules of natural justice.

41. S 377A uses extremely vague language that has the potential to be infinitely broad, such that itis inherently unintelligible. As such, it does not meet the “intelligible differentia” requirement. It is impossible on the plain wording of the provision to know what is meant by 'gross indecency', what precisely its reach is, and under what range of circumstances men will become classified under it.

42. The vagueness of s 377A is not saved by judicial interpretation. Our High Court in Ng Huat held that an act would be grossly indecent as long as “it would be considered grossly indecent by any right-thinking member of the public”. With respect, this provides no further clarity as to under what precise circumstances an individual would be guilty of an offence under s 377A, given that “right-thinking members” may have very different conceptions of what “grossly indecent” includes. Would it include kissing, holding of hands, or even merely hugging? There is no way to know, until an individual under each of these situations is charged and possibly convicted under s 377A.

43. This vagueness in the law, in violating the “intelligible differentia” requirement, violates the fundamental principles of natural justice and the rule of law which demand, among others, certainty and predictability. The Venice Report states that legal certainty is a key component to the rule of law : The principle of legal certainty is essential to the confidence in the judicial system and the rule of law.

44. Lord Diplock stated: "The acceptance of the rule of law as a constitutional principle requires that a citizen, before committing himself to any course of action, should be able to know in advance what are the legal principles which flow from it.": Black-Clawson International Ltd v PapierwerkeWaldhof-Aschaffenburg AG, [1975] AC 591 (UKHL).

45. The United States Supreme Court (“US Supreme Court”) similarly confirmed in Grayned v City of Rockford 408 US 104 (1972) (SCOTUS) that :- it is “a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vagueness offends several important values … A vague law impermissibly delegates basic policy matters to policemen, judges and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. [emphasis added]

46. None of these requirements of predictability, clarity and intelligibility are present in s. 377A and as such the provision fails the first test of the Article 12(1) scrutiny, which requires statutes to be founded on an “intelligible differentia”.

D. S 377A, by criminalising a natural and immutable attribute, is entirely arbitrary, contrary to the fundamental rules of natural justice.

1. Laws that punish individuals only on the basis of their natural and immutable attributes are absurd and arbitrary.

47. Their Lordships in Ong Ah Chuan would certainly not have considered a law making it an offence for anyone to be left-handed, to have blue eyes, or to be more than 1.67 metres tall, to be consistent with the Ong Ah Chuan rules. An act that arises purely out of an individual’s natural and immutable characteristic, that causes no tangible harm to anyone or to the public order, could not have been contemplated by the Constitution’s framers as an “offence” meriting prosecution and conviction. Laws that criminalise such “offences” are therefore entirely “absurd” and “arbitrary”, contrary to the Ong Ah Chuan rules and the rule of law.

48. “Acts of gross indecency” under s 377A is precisely such an “offence”. This is because such acts arise out of a homosexual’s sexual orientation – a natural, immutable attribute that the homosexual does not have conscious choice over. The Plaintiff will adduce evidence to prove this proposition.

49. Prior to that, however, the Plaintiff makes a preliminary observation on the relevant burden of proof to be applied.

2. Given that fundamental liberties are at stake, the Plaintiff’s onus of proof ought to be lower than “balance of probabilities”.

50. It is clear that the Plaintiff bears the burden of proof: s 103(1) Evidence Act (Cap 97, 1997 Rev Ed Sing) (“Evidence Act”). It is equally clear that the Plaintiff needs not prove that it is absolutely certain that homosexuality is an attribute – the Plaintiff needs to prove, at the very most, that this proposition is true on a balance of probabilities.

51. Further, the Plaintiff submits that where constitutionally enshrined fundamental liberties are at stake, a lower burden of proof than “balance of probabilities” is applicable. Where the Plaintiff has succeeded in bringing a prima facie case, the burden then shifts to the Defendant to rebut the Plaintiff’s case, on balance of probabilities. This approach is consistent with RamalingamRavinthran v Attorney-General, [2012] 2 SLR 49 (SGCA) (“RamalingamRavinthran”). In that case, our Court of Appeal held that where an Plaintiff alleges that the exercise of prosecutorial discretion has infringed the Plaintiff’s constitutional rights, the onus is on the Public Prosecutor to justify his discretion once the plaintiff has brought a prima facie case, notwithstanding that prosecutorial discretion is constitutionally vested on the Attorney-General under Article 35(8) of the Constitution. It is apposite to note that the Court of Appeal emphasised that this burden of proof was mandated where there are “constitutional challenges to the prosecutorial discretion based on an alleged breach of one or more of the fundamental liberties enshrined in the Constitution [emphasis added] ”.

52. An approach that shifts the burden of proof to the Defendant once the Plaintiff has proven a prima facie case would also be consonant with the Privy Council’s exhortation in Ong Ah Chuan that Part IV of the Constitution should be accorded “a generous interpretation avoiding what has been called 'the austerity of tabulated legalism,' suitable to give to individuals the full measure of the [fundamental liberties] referred to".

53. Having dealt with the question of the applicable burden of proof, the Plaintiff proceeds to examine the evidence.

3. Comparative constitutional jurisprudencehas endorsed the proposition that homosexuality is an immutable attribute.

54. A fundamental premise of the argument that homosexuality is a mere choice rather than an attribute is that through prayer and determination, one can “change” from homosexuality to heterosexuality. This view is borne out in Prof Thio Li-ann’s (“Prof Thio”) parliamentary speech supporting the retention of s 377A (Singapore Parliamentary Debates: Official Report, 22 October 2007 Col 2313-2317 (“22 October 2007 Debates”)) :-

Homosexuality is a gender identity disorder; there are numerous examples of former homosexuals successfully dealing with this. They claim a right of sexual reorientation. Just this year, two high profile US activists left the homosexual lifestyle, the publisher of Venus, a lesbian magazine, and an editor of Young Gay America. Their stories are available online. An article by an exgay in the New Statesmen this July identified the roots of his emotional hurts, like a distant father, overbearing mother and sexual abuse by a family friend; after working through his pain, his unwanted same-sex attractions left. While difficult, change is possible and a compassionate society would help those wanting to fulfill their heterosexual potential. There is hope.

55. For convenience, the Plaintiff refers to the group of people who hold this view as the “Homosexual Re-orientation Believers”. The view taken by Homosexual Re-orientation Believers have been shown to be utterly false, through official statements by professional medical bodies, and testimonies by “ex-gays” – previously the strongest campaigners for the notion that homosexuality can be altered.

56. The proposition that homosexuality is an attribute rather than a choice has been accepted in comparative constitutional jurisprudence. This occurred, for instance, in the unanimous United Kingdom Supreme Court (“UK Supreme Court”) decision of (“HJ (Iran)”). Lord Hope DPSC was unequivocal in holding that homosexuality is an immutable characteristic even if this truth was less evident than the immutability of a person’s race :-

The group is defined by the immutable characteristic of its members' sexual orientation or sexuality. This is a characteristic that may be revealed, to a greater or lesser degree, by the way the members of this group behave. In that sense, because it manifests itself in behaviour, it is less immediately visible than a person's race. But, unlike a person's religion or political opinion, it is incapable of being changed. [emphasis added]

57. Similarly, Lord Rodger JSC, in an opinion concurred by Lord WalkerJSC , Lord Collins JSC and Dyson JSC endorsed the following holding by the New Zealand Refugee Status Appeals Committee in In Re GJ, [1998] INLR 387 :-

sexual orientation is either an innate or unchangeable characteristic or a characteristic so fundamental to identity or human dignity that it ought not be required to be changed…

58. In the Supreme Court of Canada case of Vriend v Alberta, [1998] 1 SCR 493 (SCC) (“Vriend”), six of the eight Justices deciding the case endorsed the following holding by La Forest J in Egan v Canada, [1995] 2 SCR 513 (SCC) (“Egan”) :-

While I ordinarily have reservations about concessions of constitutional issues, I have no difficulty accepting the appellants' contention that whether or not sexual orientation is based on biological or physiological factors, which may be a matter of some controversy, it is a deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs… [emphasis added]

59. The proposition that homosexuality is an immutable and natural attribute has been endorsed in Asian jurisprudence. In the Hong Kong Court of Appeal case of Leung TC William Roy v Secretary for Justice, [2006] 4 HKLRD 211 (HKCA) (“William Leung”), Ma CJHC (as he then was), the present Chief Justice of the Hong Kong Court of Final Appeal, endorsed the following holding :-

Denying persons of a minority class the right to sexual expression in the only way available to them, even if that way is denied to all, remains discriminatory when persons of a majority class are permitted the right to sexual expression in a way natural to them. [emphasis added]

60. The Supreme Court of Nepal in Sunil Babu Pant and Others v Nepal Government, Office of the Prime Minister and Council of Ministers and Others, [2008] NLJLJ 262 (Supreme Court of Nepal) (“Sunil Babu Pant”)is similarly authority for the proposition that homosexuality is a natural attribute which the individual has little voluntary control over :- … sexual orientation is a natural process in the course of physical development of a person including self-experience rather than due to the mental perversion, emotional and psychological disorder.

61. Similarly, the Constitutional Court of South Africa has in The National Coalition for Gay and Lesbian Equality v the South African Human Rights Commission, 1999 (1) SA 6 (“National Coalition”) held that a law criminalising homosexual conduct criminalises gay persons for a personal characteristic as opposed to a personal choice :- In the case of gays [the indignity and subordinate status] comes from compulsion to deny a closely held personal characteristic. To penalise people for being what they are is profoundly disrespectful of the human personality and violatory of equality. [emphasis added]

62. Ackerman J, in his judgment for National Coalition, held that the criminalisation of homosexual acts was to deny a group of persons the very experience of being human :- As a result of the criminal offence, gay men are at risk of arrest, prosecution and conviction of the offence of sodomy simply because they seek to engage in sexual conduct which is part of their experience of being human. Just as apartheid legislation rendered the lives of couples of different racial groups perpetually at risk, the sodomy offence builds insecurity and vulnerability into the daily lives of gay men. [emphasis added]

63. Similarly, the High Court of Delhi in Naz Foundation v Government of NCT of Delhi and Others, WP(C) No 7455/2001 (2 July 2009) (“Naz Foundation”) accepted that “homosexuality is not a disease or mental illness that needs to be, or can be, “cured” or “altered,”” 64. The United States District Court for the Northern District of California in Perry v Schwarzenegger, 704 F.Supp.2d 921, after meticulously voluminous expert testimony on the nature of homosexuality, similarly held :- [i]ndividuals do not generally choose their sexual orientation. No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.

4. Professional scientific bodies and prominent “ex-gays” have announced that “gay-reparation” programmes have failed, and caused immense harm.

Professional Medical Organisations

65. Professional medical organisations have issued official statements which unequivocally deny the efficacy of Sexual Orientation Change Efforts (“SOCE”) in changing the sexual orientation of homosexuals, and strongly warn that such programmes in fact pose significant psychological and physical harms to homosexuals desperate to “escape” the homosexual lifestyle.

66. This historical treatment of homosexuality as a mental disorder has been successively eroded during the last 40 years. In 1973 the American Psychiatric Association (“APA”) issued a position statement stating that ‘homosexuality per se implies no impairment in judgment, stability, reliability, or general social or vocational capabilities’ and voted to remove the classification of homosexuality from the Diagnostic and Statistical Manual of Mental Disorders.. The World Health organisation followed suit in 1992 when it removed it from the International Classification of Diseases.

67. The transition of homosexuality from ‘mental disorder’ to a ‘normal aspect of human sexuality’ has led to increased scrutiny on appropriate therapeutic responses. The efficacy of “Sexual Orientation Change Efforts” (“SOCE”) (also known as ‘reparative’ or ‘conversion’ therapies) has come under particular scrutiny. The APA cast doubt on SOCE in its amicus brief to the US Supreme Court in John Geddes Lawrence and Tyron Garner v Texas, 539 US 558 (2003) (SCOTUS) (“Lawrence”) and has since conducted a two-year review of the peer-reviewed literature considering such therapies. The APA concluded that SOCE “are unlikely to be successful and involve some risk of harm, contrary to the claims of SOCE practitioners and advocates”.

68. Various other professional mental health bodies have also issued policy statements on the efficacy of SOCE.

69. The Pan American Health Organisation (regional office of the World Health Organisation) has said “[b]esides the lack of medical indication, there is no scientific evidence for the effectiveness of sexual re-orientation efforts”.

70. The Royal College of Psychiatrists in the UK stated that there is “no sound scientific evidence that sexual orientation can be changed”.

71. The Royal New Zealand and Australian College of Psychiatrists similarly indicated that it “does not support the use of sexual orientation change efforts of any kind” and warned that “[m]ental health workers should avoid misrepresenting the efficacy of sexual orientation change efforts when providing assistance to people distressed by their own or others’ sexual orientation.”

72. The Hong Kong Psychological Society confirmed that “[p]sychologists understand that efforts to change sexual orientation are not proven to be effective or harmless”.

73. The Psychological Society of South Africa published an open letter to President Museveni following the publication of Uganda’s Anti-homosexuality Bill in 2009. It concluded, among others, that ‘[w]hile “causes” for any of these sexual orientations remain unclear, they are highly resistant to change’, and that ‘[r]esearch and clinical experience further concludes that for most people sexual orientation is not “a choice” or “voluntary”.’

74. The Indian Journal of Psychiatry also concluded in an editorial that ‘[t]here is no evidence for the effectiveness of sexual conversion therapies. Such treatments also raise ethical questions. In fact, there is evidence that such attempts may cause more harm than good’.

75. Significant research affirming SOCE by psychiatrist Robert Spitzer was also undermined when he publicly retracted his confidence in the research.

76. In sum, there is significant international consensus within the mental health community that SOCE are ineffective and potentially harmful. One basis for this conclusion is that homosexuality is a deep and enduring personal characteristic.

Ex Gay Leaders

77. The Plaintiff now proceeds to invite this Court to take judicial notice of the next class of facts: public renunciations of the efficacy of SOCE by individuals who had once been the strongest advocates of such therapies.

78. Alan Chambers (“Chambers”) is President of Exodus International, a United States inter-denominational organisation founded in 1976 and has for three decades been dedicated to helping homosexuals repress homosexual desires. Chambers himself claims to be an “ex-gay”, a homosexual who has successfully exited gay lifestyle. In 2012, however, Chambers has made several significant public statements seeking to distance the organisation away from the view that homosexual orientation is something that can be voluntarily changed. In an interview to the Associated Press on 27 June 2012, Chambers stated :- I do not believe that cure is a word that is applicable to really any struggle, homosexuality included… For someone to put out a shingle and say, 'I can cure homosexuality' — that to me is as bizarre as someone saying they can cure any other common temptation or struggle that anyone faces on Planet Earth.

79. In an interview to the New York Times reported on 6 July 2012, Chambers was more unequivocal about his new support for the view that SOCE has never actually been successful in converting gay persons from homosexuality to heterosexuality :-

In a phone interview Thursday from Orlando, Fla., where Exodus has its headquarters, Mr. Chambers amplified on the views that have stirred so much controversy. He said that virtually every “ex-gay” he has ever met still harbors homosexual cravings, himself included. Mr. Chambers, who left the gay life to marry and have two children, said that gay Christians like himself faced a lifelong spiritual struggle to avoid sin and should not be afraid to admit it.

He said Exodus could no longer condone reparative therapy, which blames homosexuality on emotional scars in childhood and claims to reshape the psyche... [emphasis added]

80. Michael Busse (“Busse”) was a co-founder of Exodus International. In 1979, three years after the organisation was founded, he decided to leave the organisation and has since then become an outspoken critic against any attempts to “convert” homosexuals to heterosexuality. He has stated, for instance, that :- I need to say that some had a positive, life-changing experience attending our Bible studies and support groups. They experienced God’s love and the welcoming fellowship of others who knew the struggle. There were some real “changes”—but not one of the hundreds of people we counseled became straight.

Instead, many of our clients began to fall apart – sinking deeper into patterns of guilt, anxiety and self-loathing. Why weren’t they “changing”? The answers from church leaders made the pain even worse: “You might not be a real Christian.” “You don’t have enough faith.” “You aren’t praying and reading the Bible enough.” “Maybe you have a demon.” The message always seemed to be: “You’re not enough. You’re not trying hard enough. You don’t have enough faith.”

Some simply dropped out and were never heard from again. I think they were the lucky ones. Others became very self-destructive. One young man got drunk and deliberately drove his car into a tree. Another (a fellow leader of the ex-gay movement) told me that he had left EXODUS and was now going to straight bars – looking for someone to beat him up. He said the beatings made him feel less guilty – atoning for his sin. One of my most dedicated clients, Mark, took a razor blade to his genitals, slashed himself repeatedly, and then poured drain-cleaner on the wounds—because after months of celibacy he had a “fall.”

81. On 27 June 2007, Busse and two other Exodus leaders Darlene Bogle and Jeremy Marks issued a joint Statement of Apology for the work they have done in giving homosexuals the impression that homosexuality, instead of being an immutable attribute, was a mere lifestyle choice that one could exit with ease :- As former leaders of ex-gay ministries, we apologize to those individuals and families who believed our message that there is something inherently wrong with being gay, lesbian, bisexual, or transgender. Some who heard our message were compelled to try to change an integral part of themselves, bringing harm to themselves and their families. Although we acted in good faith, we have since witnessed the isolation, shame, fear, and loss of faith that this message creates. We apologize for our part in the message of broken truth we spoke on behalf of Exodus and other organizations. [emphasis added]

82. Anthony Venn-Brown (“Venn-Brown”) is a former Australian evangelist in the Assemblies of God who had also publicly apologised over his previous involvement in “ex-gay” efforts. Following the lead of the public apology made by Busse, Venn-Brown coordinated with 5 other former ex-gay leaders (John Meteyard , Veronica Canning , Kim Brett , Wendy Lawson and Paul Martin to issue a joint public apology and individual statements of apology by each former ex-gay leader. In the joint statement, Venn-Brown stated :-

I issue an appeal to ex-gay ministries in Australia. If you are professionally qualified to work in the areas of sexual addiction and sexual abuse, then continue that important work. But to have any integrity you should also let your clients know that 1,000’s of us have found peace, freedom and resolution by loving our gay and lesbian selves instead of rejecting, suppressing and denying who we are. The invitation is always open for an informed and respectful dialogue. Thank you also to the current ex-gay leaders who have honestly acknowledged that the gay thoughts and feelings have not gone away and never will. [emphasis added]

83. It is striking that these prominent ex-gay leaders – individuals most determined and dedicated to the sole task of changing their sexual orientation, and who have long worked to obtain international recognition for their efforts in the notion that homosexuality is something that can be chosen out of – have publicly acknowledged that homosexuality is an immutable attribute rather than a mere voluntary choice. Their admission weakens the propositions made by Believers of Homosexual Re-orientation. If even the most determined ex-gay leaders themselves find it impossible to alter their fundamental sexual orientation, it is doubtful whether ordinary gay individuals would find it any easier to do so. S 377A, in criminalising the attribute of homosexuality, compels the performance of the impossible.

Governments

84. The Plaintiff invites this Court to take judicial notice of the last class of facts under this heading: official Government actions on SOCE.

85. On 2 October 2012, the State of California in the United States passed a law banning the administration of therapies attempting to change the sexual orientation of patients under the age of 18.

86. Similarly on 13 November 2012, the United Kingdom Government has officially announced that gay reparative therapy is harmful. Addressing Parliament, the Health Minister Norman Lamb stated :-

The Department of Health does not condone the concept of therapists offering ‘cures’ for homosexuality. There is no evidence that this sort of treatment is beneficial and indeed it may well cause significant harm, to some patients. [emphasis added]

87. The Plaintiff’s lengthy survey of the facts points to an irresistible conclusion: homosexuality is an immutable attribute as opposed to a mere voluntary choice. While efforts may be made to alter one’s sexual behaviour (homosexuals could, for instance, still form sexual relationships with women or remain celibate), that is very much distinct from altering one’s sexual orientation. This proposition is supported not only by gay-rights groups, but also by respected medical professional bodies and former leaders of the ex-gay movement – homosexuals who have themselves been the most determined advocates for the proposition that homosexuality can be altered. The evidence in favour of the Plaintiff’s position is weighty.

5. Prime Minister Lee HsienLoong (“PM Lee”) and then-Minister Mentor Lee Kuan Yew (“MM Lee”) has accepted that homosexuality is an attribute.

88. This Court should further note that both PM Lee and MM Lee have acknowledged, and even cautiously endorsed, the growing scientific consensus that homosexuality is an attribute rather than a choice. In his book “Hard Truths to Keep Singapore Going”, MM Lee opined :- No, it's not a lifestyle. You can read the books all you want, all the articles. There's a genetic difference, so it's not a matter of choice. They are born that way and that's that… Vivian Balakrishnan says it's not decisively proven. Well, I believe it is. There's enough evidence that some people are that way and just leave them be. [emphasis added]

89. Similarly, PM Lee stated, in his Parliamentary speech urging support for the retention of s 377A (Singapore Parliamentary Debates: Official Report, Col 2465-2572 (“23 October Debates”)) :-

What makes a person gay or homosexual? … I think, the social environment has something to do with it. But there is growing scientific evidence that sexual orientation is something which is substantially inborn. I know that some will strongly disagree with this, but the evidence is accumulating. We can read the arguments and the debates on the Internet. Just to take one provocative fact, homosexual behaviour is not observed only amongst human beings but also amongst many species of mammals. [emphasis added]

90. Although the beliefs of neither PM Lee nor MM Lee are authoritative, the very fact that they hold such views show that there is at least a serious or arguable case that homosexuality is an attribute rather than a choice.

91. Taking all the circumstances into account, the Plaintiff submits that he has sufficiently discharged the burden of proving on balance of probabilities that homosexuality is an attribute rather than a mere choice.

6. S 377A is therefore akin to criminalising left-handedness or blue eyes and is thus inherently “absurd” and “arbitrary”, contrary to the rules of natural justice. If homosexuality is a natural attribute, criminalising homosexual conduct is akin to criminalising the attribute of homosexuality itself.

92. The counter-argument the Defendant may canvass goes as follows. Even if it were accepted that sexual orientation (as opposed to sexual behaviour) is an immutable attribute, s 377A is not analogous to punishing someone for being left-handed or having blue eyes because it does not punish a gay person merely for having a homosexual sexual orientation – it punishes the gay person for the sexual behaviour of engaging in physical intimacy with another man. According to this logic, even if the sexual orientation of a gay person were immutable, his act of engaging in homosexual conduct is a voluntary one – he can choose to remain celibate, or to engage in physical intimacy with a woman.

93. With respect, this counter-argument is an exercise in sophistry. To appreciate the fallacy of this argument, the Plaintiff reminds this Court that s 377A does not merely criminalise homosexual sodomy – it has the potential to render an offence all forms of physical intimacy between two men, including kissing and holding hands. The present constitutional challenge ought not be mischaracterised merely a claim for a “right to engage in homosexual sodomy”. S 377A, by criminalising any “act of gross indecency”, covers a far wider range of acts than anal or oral intercourse (in contrast with ss 376G, 377 and 377B, in which the language of “penetration” is used). S 377A can therefore conceivably cover relatively innocuous acts such as kissing or holding hands.

94. Bearing the above reminder in mind, the Plaintiff invites this Court to consider the following series of hypotheticals. First, would Parliament be constitutionally competent to pass a law providing that it would thenceforth be an offence for all persons to breathe? There is an unimpeachable argument there that such legislation would not prima facie be “law” at all – by legislating the impossible, such legislation would be entirely “absurd”, contrary even to the “thin” conception of the rule of law (Li-annThio, ‘Lex Rex or Rex Lex? Competing Conceptions of the Rule of Law in Singapore’ (2002-2003) 20 UCLA Pacific Basin LJ 1-76).

95. Next, would Parliament have the constitutional competence to pass legislation providing that all individuals would thenceforth be criminalised for writing with their left hands? Such legislation does not compel the impossible, and hence does not run afoul of the ‘thin’ conception of the rule of law. Yet, there is a strong argument that such legislation still fails the threshold Yong Vui Kong test of “absurdity”. This is because such legislation – although prohibiting only voluntary conduct – criminalises conduct so intimately and integrally connected to a natural attribute (viz the left-handed individual’s naturally and significantly greater dexterity with the left hand) that its operation can certainly be characterised as being so “oppressive” that it does not amount to “law”, the word “oppressive” being in the contemplation of their Lordships’ determination in Ong Ah Chuan.

96. Next, consider legislation purporting to prohibit all adults from engaging in any form of physical intimacy with another individual. In comparison with the previous hypothetical, such legislation prohibits conduct that is much more voluntary, and that can be refrained from with relatively greater ease (many religious figures, after all, swear oaths of celibacy). Yet, again, the Plaintiff submits that there is a strong argument that such legislation fails the Yong Vui Kong threshold test of “absurdity”. Leaving aside the argument that such legislation is bad for its disastrous external consequences on society, the Plaintiff argues that such legislation would also be inherently bad because, as with the previous hypothetical, it penalises conduct that is so integrally connected with a natural and immutable attribute (by virtue of one’s humanity (the natural and immutable attribute), one has natural inclination to express one’s humanity through the conduct of intimate relations with another human being (the voluntary conduct closely connected with the natural and immutable attribute of humanity)) that it is virtually akin to penalising the natural and immutable attribute of the individual’s humanity itself.

97. S 377A is precisely analogous to the last hypothetical. It is true that homosexual intimate conduct involves a voluntary choice, meaning that s 377A does not technically compel the impossible. Nonetheless, such intimate conduct bears such an integrally close connection with the immutable and natural attribute of same-gender sexual orientation that penalising all forms of homosexual physical intimacy is akin to penalising the person merely for being homosexual. There is thus no logical distinction to be made between penalising a person’s homosexuality and his homosexual conduct. Therefore, given that s 377A penalises a person for his natural and immutable attribute, its operation is inherently “oppressive”, “absurd”, and entirely contrary to the fundamental rules of natural justice.

98. The UK Supreme Court case of HJ (Iran), albeit not a decision testing the constitutionality of a statute criminalising homosexual conduct, provides the best illustration of the Plaintiff’s submission that the criminalisation of homosexual acts, by penalising conduct that is fundamentally integral and connected to the natural and immutable attribute of homosexuality, is in substance indistinguishable from the criminalisation of the natural attribute of homosexuality itself.

99. In that case, the appellant-claimant sought asylum in the United Kingdom on the basis that he had a well-founded fear of persecution if he were returned Iran, which prescribed the death penalty for being homosexual. The Defendant-Home Secretary argued that the claimant failed to establish that he had a well-founded fear of persecution because he could always voluntarily choose to conceal his homosexual orientation, or even to refrain from homosexual acts altogether. The Supreme Court unanimously rejected this argument and held that the claimant successfully established a well-founded fear of persecution notwithstanding the fact that he could escape persecution by concealing his homosexuality if he chose to. Their Lordships’ main ground for this ruling was that although it was perfectly possible for the claimant to escape persecution by voluntarily concealing or refraining from homosexual conduct altogether, homosexual acts are so proximally integral to a gay person’s identity and dignity that it would be patently unreasonable to expect a gay person to conceal his identity in an attempt to escape persecution. In his judgment, Lord Rodgers endorsed the following opinion by the United States Court of Appeals for the Ninth Circuit (“US Ninth Circuit”) in Hernandez-Montiel v Immigration and Naturalization Service, (2000) 225 F 3d 1084 :-

This is not to give any false or undue prominence to the plaintiff’s sexuality or to say that an individual is deed by his sexuality. It is just to accept that sexual identity is inherent to one’s very identity as a person… [emphasis added]

100. Lord Rodgers JSC provides a powerful explanation of this holding in the following excerpt :-

At the most basic level, if a male plaintiff were to live discreetly, he would in practice have to avoid any open expression of action for another man which went beyond what would be acceptable behaviour on the part of a straight man. He would have to be cautious about the friendships he formed, the circle of friends in which he moved, the places where he socialised. He would have constantly to restrain himself in an area of life where powerful emotions and physical attraction are involved and a straight man could be spontaneous, impulsive even. Not only would he not be able to indulge openly in the mild flirtations which are an enjoyable part of heterosexual life, but he would have to think twice before revealing that he was attracted to another man. Similarly, the small tokens and gestures of action which are taken for granted between men and women could well be dangerous. In short, his potential for finding happiness in some sexual relationship would be profoundly affected. It is objectionable to assume that any gay man can be supposed to and even these restrictions on his life and happiness reasonably tolerable.

101. Along the same line, Lord Collins JSC endorsed the holding by the US Ninth Circuit in Karouni v Gonzales, (2005) 399 F 3d 1163 that a law that required a homosexual person to remain celibate in order to escape prosecution was a law that robbed the homosexual person of a fundamental aspect of his life, notwithstanding the fact that celibacy was perfectly and voluntarily possible :-

…by arguing that the homosexual plaintiff could avoid persecution by living a life of celibacy in Lebanon, the Attorney General was essentialy arguing that the law required him to change a fundamental aspect of his human identity. [emphasis added]

102. The Supreme Court of the United States (“US Supreme Court”) also understood the point that acts of homosexual intimacy, although entirely voluntarily, goes right to the heart of the homosexual person’s dignity to have a full human experience given the person’s immutable attribute of homosexual orientation. In Lawrence, the majority of the Court held :-

To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said that marriage is simply about the right to sexual intercourse.

103. The best enunciation of this point lies in the amici curae brief tendered by the APA, American Psychiatric Association, National Association of Social Workers, and the Texas Chapter of the National Association of Social Workers to the US Supreme Court in Lawrence. The Plaintiff takes liberty to repeat verbatim a passage from this brief :-

As this Court has recognized, sexual intimacy is “a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality.” The human impulse for sexual intimacy, as well as the importance of this impulse to the self and to the development of close relationships with others, have been observed and chronicled for centuries. The mental health professions have also long recognized the importance of the desire for sexual intimacy in the development of the self, in the establishment of close relationships, and in the maintenance of family units. And the most recent study of the sexual behavior of the American population has found that sexual satisfaction in intimate relationships is linked to satisfaction with those relationships and with general satisfaction with life. [emphasis added]

104. Therefore, s 377A, by criminalising acts that are integrally connected with the natural and immutable attribute of being homosexual, effectively criminalises the immutable attribute of homosexuality itself. This makes s 377A analogous to a “law” criminalising individuals merely for having blue eyes, being 1.67 m tall or being left-handed. By punishing individuals for an immutable attribute they have no voluntary control over, s 377A is patently “absurd”, contrary to the fundamental rules of natural justice, and hence not even prima facie “law” in accordance with Articles 9(1) and 12(1) of the Constitution.

II. IS S 377A CONSISTENT WITH ARTICLE 12(1) OF THE CONSTITUTION?

A. S 377A, by being patently vague, and by unjustifiably differentiating between male and female homosexual acts is not founded on an intelligible differentia.

105. The test for determining whether a statute is consistent with Article 12(1) is trite. First, the classification made by the statute must be founded on an intelligible differentia. Second, the differentia must bear a rational relation to the social object sought to be achieved by the statute in question: Yong Vui Kong.

106. In the Plaintiff’s Supplemental Submissions at [], the Plaintiff has explained in detail why the differentiation in s 377A is not founded on an intelligible differentia. The In sum, there are two reasons why this is so. First, the language of s 377A is so inherently uncertain that in very many cases an individual would not be able to determine if he falls within or outside the differentiated class. Second, s 377A, by imposing a criminal penalty on male homosexual acts and not female homosexual acts although the mischief of s 377A covers both acts, is entirely arbitrary and irrational, and does not pass the “intelligible differentia” test.

107. Even assuming, however, that s 377A is founded on an intelligible differentia, it is clear that the classification – men (not women) who engage in acts of “gross indecency” with other men – bears no rational relation to any social object.

B. Where a statute purports to classify an individual only on the basis of an immutable attribute, this Court ought to apply a test that is more stringent than the “rational relation” test.

108. Although this classification also catches a non-homosexual man engaging in acts of physical intimacy with another man, this classification has its primary effect on men with actual homosexual orientation (see Part I supra). In other words, this classification is founded on the differentia of an immutable and natural characteristic.

109. The “equality before the law” that the Plaintiff is entitled to pursuant to Article 12(1) of the Constitution does not refer to absolute equality of treatment between all classes of individuals. For the sake of good administration, the State has to make reasonable classifications and accord different treatment to classes of individuals with legally material differences – “intelligible differentia” in our legal terminology. Such differentia must, in addition, bear a “rational relation” to the social object of the statute: Yong Vui Kong.

110. The “rational relation” test is a standard of equality review substantially deferential to legislative judgment. There is a strong presumption of constitutionality (Public Prosecutor v. Taw Cheng Kong, [1998] 2 SLR(R) 489 (SGCA) (“Taw Cheng Kong (CA)”)) , and the burden of showing otherwise lies on the person alleging that the statute is unconstitutional: Taw Cheng Kong(CA). A statute is not invalid simply because there is no perfect fit between the object and the classification – as our Court of Appeal held in Taw Cheng Kong (CA) :- The enactment of a provision need not be seamless and perfect to cover every contingency. Such a demand would be legislatively impractical, if not impossible.

111. The “rational relation” test is therefore a practical concession to the complexities of public administration, and a judicial acknowledgement that policymaking is the competent province of the people’s elected representatives. A statute fails the “rational relation” test only if its classification, and the objects it purports to serve, are patently arbitrary and irrational – a high threshold for a challenger to meet.

112. It is well established, however, that some differentia are simply “forbidden”, no matter how “benign” or “rational” the social object of the classification purports to be. Article 12(2) of the Constitution provides that religion, race, descent or place of birth cannot form constitutionally valid grounds for classification unless expressly authorised by the Constitution itself. Our wary constitutional framers, having experienced the horrors of sectarian conflict in the 1960s, deliberately included these provisions because they understood that differential treatment on the basis of such classifications are particularly apt to stoke strong passions. This is because race, descent and place of birth are immutable characteristics – individuals accorded less favourable treatment only on such grounds are unable to “escape” the less favourable treatment by “changing” the class in which they are located. Although religion is not an immutable characteristic, its very centrality to human dignity and its fundamentality to the person’s conscious definition of the self-make religion analogous to an immutable characteristic, therefore making differential treatment only on the basis of religion normatively undesirable.

113. The Plaintiff submits that not all classifications outside the “forbidden” categories set out in Article 12(2) can appropriately be tested by the “rational relation” standard. Some differentia, such as gender, are analogous to the “forbidden” categories in that they are founded on immutable and natural attributes which the individual has no conscious control over. The Plaintiff submits that, where a classification is analogous to the “forbidden” classifications set out in Article 12(2), a stricter standard of scrutiny than the “rational relation” test is appropriate. The case for imposing a stricter standard of scrutiny for such differentia is convincingly stated by Jack Lee Tsen-Ta (“Lee”) in his article ‘Equal Protection and Sexual Orientation’, 16 Sing LR 228 :-

The primary aim of legislation is to influence people’s choices and activities. By making a certain activity a crime, the legislature hopes to deter persons from engaging in that activity. The immutability of a trait is relevant because it may be unfair to inflict legal burdens on persons with a particular trait if they are not responsible for or have no control over that trait. It also tends to show that legislators, being unable to become members of the group, are less able to properly identify with the group’s interests and thus are more likely to be biased by their own perspectives. If the legislature differentiates between persons on the basis of such immutable traits this may suggest that it acts in bad faith. Furthermore, the immutability of a trait heightens the group’s stigma since no one would choose to belong to the group if he or she could help it. [emphasis added]

114. Thus, courts in several jurisdictions, anxious to ensure that differential treatment on the basis of ‘suspect classes’ do not unconstitutionally burden individuals who have no conscious choice over the class they have been categorised, have applied a ‘strict scrutiny’ standard of review in such cases. Again, Lee provides a useful summary of how the “strict scrutiny” standard is applied in the United States :-

Unlike rational review, the burden of proof in strict scrutiny is reversed: it is the government that must prove that the impugned statute is constitutional. To survive strict scrutiny, a suspect classification in a statute must be “necessary to the accomplishment” of a “compelling state interest”. While absolute necessity is not required, the court will require a close relationship or “tight fit” between the classification and promotion of the compelling governmental objective of the statute. The government’s policy must be the least restrictive possible. [emphasis added]

115. A notable instance of the US Supreme Court applying, and the State surviving, the “strict scrutiny” standard was in the landmark case of Korematsu v United States, 323 US 214 (1944) (SCOTUS) (“Korematsu”). In that case, the United States government issued an exclusion order barring all persons of Japanese descent from a described West Coast military area. The Court had little difficulty in finding that the “strict scrutiny” test applied:-

It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can. [emphasis added]

116. This case was a rare instance of the State surviving the “strict scrutiny” test. The Court found the existence of an extremely compelling, rather than merely desirable, state interest that needed immediate protection :-

He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and, finally, because Congress, reposing its confidence in this time of war in our military leaders -- as inevitably it must -- determined that they should have the power to do just this.

117. The Court also took pains to emphasise that, while the interest to be protected was compelling, the differentiated treatment was no more than was, in the dire circumstances, necessary, and bore the closest possible connection with the compelling state interest to be safeguarded :-

… exclusion from a threatened area … has a definite and close relationship to the prevention of espionage and sabotage. The military authorities, charged with the primary responsibility of defending our shores, concluded that curfew provided inadequate protection and ordered exclusion….

… Like curfew, exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group, most of whom we have no doubt were loyal to this country. It was because we could not reject the finding of the military authorities that it was impossible to bring about an immediate segregation of the disloyal from the loyal that we sustained the validity of the curfew order as applying to the whole group. In the instant case, temporary exclusion of the entire group was rested by the military on the same ground. The judgment that exclusion of the whole group was, for the same reason, a military imperative answers the contention that the exclusion was in the nature of group punishment based on antagonism to those of Japanese origin.... [emphasis added]

118. The Plaintiff urges this Court to take into account the extremely stringent standard the US Supreme Court demands of suspect classifications – the existence not just of a desirable social object but of a compelling state interest, and the tight, not merely rational, nexus between the classification and the compelling state interest.

119. To reiterate, such an approach is appropriate where classifications are based on natural and immutable characteristics, because an individual within such a class, and faced with differentiated disadvantageous treatment as a consequence of being in the class, would not readily be able to exit the class.

120. Of course, were a law with the same effect as the exclusion order in Korematsu to reach the Singapore courts, it would never survive judicial review under Article 12(2) notwithstanding the existence any compelling state interest. Singapore’s constitutional order thus recognises the existence of suspect categorisations. However, the categorisations in Article 12(2) are not conclusive. While Article 12(2) enumerates a closed list of “forbidden” classifications which may not be employed in any law regardless of any social objective, Article 12(2) does not preclude the use of the “strict scrutiny” test – which permits a suspect classification only where it is necessary to advance a compelling state interest – in classifications not enumerated by, but are analogous to, the grounds of forbidden classification in Article 12(2). The Plaintiff submits that, where the differentia employed is analogous to the “forbidden” categories enumerated in Article 12(2), the “strict scrutiny” test should apply. The Plaintiff further submits that differentiation on the basis of sexual orientation – a natural and immutable characteristic – is one such analogous differentia attracting strict scrutiny.

121. The approach the Plaintiff advocates has been adopted by the High Court of Delhi in Naz Foundation. Similar to Article 12(1) of the Singapore Constitution, Article 15(1) of the Constitution of India six “prohibited” grounds of classification :- The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

122. Although sexual orientation is not one of the “prohibited” categories, the Court held that differentiation on the basis of sexual orientation was analogous to differentiation on the basis of gender, and that strict scrutiny must be employed to test the constitutionality of such differentiation.

123. The Supreme Court of Canada in Egan has similarly endorsed the Plaintiff’s reasoning. Again, similar to Article 12(2) of the Singapore Constitution, Article 15(1) of the Canadian Charter of Rights and Freedoms provides :-

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

124. Notably, although the Court was split in deciding whether the disentitlement of homosexual spouses from receiving old age pension benefits amounted to a breach of Article 15(1), the Court was unanimous in holding that sexual orientation was analogous to the “prohibited” classifications set out in Article 15(1). Thus, the majority of the Court, although holding that no breach occurred, readily affirmed that sexual orientation, being an immutable attribute, was certainly analogous to the enumerated grounds of forbidden classification in Article 15(1) :-

While I ordinarily have reservations about concessions of constitutional issues, I have no difficulty accepting the appellants' contention that whether or not sexual orientation is based on biological or physiological factors, which may be a matter of some controversy, it is a is a deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs, and so falls within the ambit of s. 15 protection as being analogous to the enumerated grounds.

125. Although not relating to sexual orientation as a ground for classification, the Constitutional Court of South Africa case of Harksen v Lane, 1998 (1) SA 300 (CC) (“Harksen”) is instructive in its exposition of the types of categories that are analogous to “forbidden” enumerated classifications. Again, like Article 12(2) of the Singapore Constitution, the South Africa Constitution contains 14 enumerated grounds of classification by which differential treatment is automatically prohibited. The Court opined that a differentia was analogous to the “prohibited” classifications and hence subject to the same standard of constitutional review where it related to “immutable biological attributes ”. The Plaintiff notes that Constitutional Court took pains to caution that differential treatment based on such attributes “have the potential, when manipulated, to demean persons in their inherent humanity and dignity ”.

126. The Plaintiff’s excursus of the comparative jurisprudence above shows a judicial consensus that higher standards of equality review are mandated where classifications are purportedly made only on the basis of natural and immutable characteristics.

127. If this Court were to adopt a higher standard of Article 12(1) scrutiny than the “rational relation” test in testing classifications based on natural and immutable attributes, this Court would not violate stare decisis. The Plaintiff finds no Singapore precedent applying the “rational relation” test to differentia based purely upon natural and immutable attributes. Yong Vui Kong is distinguished from our case because the differentia in that case (viz the trafficking of more than 15g of diamorphine) is an entirely volitional act. Taw Cheng Kong (CA) is similarly distinguished from that case because the differentia in that case (viz the status of Singapore citizenship) is not a natural and immutable attribute. In any event, the precedential value of the most extreme proposition made by Taw Cheng Kong (CA) – that Article 12(1) is complied with as long as a classification went “some distance” or “some way” towards fulfilling a social object – has been eroded by Yong Vui Kong, which the Plaintiff shall explain shortly.

128. Furthermore, the notion that there can be a standard of Article 12(1) review more stringent than the “rational relation” test is not alien to Singapore jurisprudence. The Plaintiff directs this Court to the High Court case of Taw Cheng Kong (HC). In that case, Karthigesu JA (as he then was) endorsed an Article 12(1) standard of review more stringent than the “rational relation” test :-

I think, however, that in the light of the court’s duty to uphold the fundamental liberties, the test of arbitrariness suggested by the learned judge (“lack of any rationality”) appears to pitch the threshold too low. It cannot be the case that any discriminatory legislative provision which skirts the boundaries of rationality must be constitutionally valid. The obligation of the court to uphold the Constitution, and in particular, the fundamental liberties, is not satisfied by subjecting the impugned legislation to minimal scrutiny: this much is clear from Lord Diplock’s judgment in Ong Ah Chuan ([19] supra). I therefore think that what the learned judge meant in that case is that if the classification is such that an ordinary and reasonable citizen could not appreciate the necessity for the discrimination, or perceived that the classification was unjust, it cannot stand. [emphasis added]

129. On appeal, the Court of Appeal seemed to have overruled this ruling by holding that a statute would be consistent with Article 12(1) as long as it went “some way” in addressing the social object of the statute: Taw Cheng Kong (CA). However, the Plaintiff reminds this Court that the precedential value of this ruling of Taw Cheng Kong (CA) has been eroded by Yong Vui Kong :-

Mr Ravi contends that, in applying this test, the court cannot take the view that so long as the 15g differentia goes some distance towards advancing the social object of the MDA, a rational relation will be found. If that were the case, Mr Ravi submits, even purely arbitrary differentiating factors could survive the “rational relation” test. For instance, it would be permissible to use the length of the offender’s hair as the criterion for determining when the MDP is applicable because imposing the death penalty on all drug traffickers with short hair would go some distance towards eradicating the illicit drug trade. We agree with Mr Ravi on this point. The test is one of rational relation precisely to exclude the use of purely arbitrary differentiating factors. [emphasis added]

130. Therefore, the Plaintiff submits that it is entirely proper for this Court, having regard to the principles of stare decisis, to reconsider the apt observations by Karthigesu JA in Taw Cheng Kong (HC) and hold that a higher standard of review than the “rational relation” test applies in cases where differential treatment is grounded merely on natural and immutable attributes. Such an approach, which shifts the burden of proving the constitutionality the impugned statute to the Attorney-General, ought to apply in cases like the present, where the intelligible differentia is founded only on individuals’ natural and immutable attributes of being homosexual. The Defendant ought to prove that there is a compelling, not merely desirable, state interest worthy of protection. It ought also be insufficient for the Defendant merely to show that s 377A “skirts the boundaries of rationality” (Taw Cheng Kong (HC) ) – the Defendant must show that s 377A bears a “tight fit” with, and is no more than necessary to achieve the compelling state interest.

131. That said, even if this Court were not minded to adopt a more stringent test than the “rational relation” test, and even if this Court does not make a finding of fact that homosexuality is a natural and immutable attribute, the Plaintiff submits that s 377A still clearly fails the “rational relation” test. S 377A is patently arbitrary and irrational, as the following sections demonstrate.

C. Given that homosexuality is not an incontrovertible immorality, nor does it harm the public order, the advancement of “morality” is not a normatively sound social object.

1. The only “social object” that s 377A has a conceivable relation to is the object of upholding “society’s morality”.


132. The Plaintiff has shown in the Plaintiff’s Supplemental Submissions at [II] the fact that legislative the object of s 377A is only to advance a particular vision of society’s “morality”, excluding other “hypothetical” objects like reducing HIV, or reducing the incidences of underage, non-consensual or public sexual conduct. The Plaintiff now discusses whether s 377A, by criminalising male but not female homosexuals, bears a rational relation to the object of advancing such a “morality”.

2. Unlike acts such as killing or adultery, homosexuality is not incontrovertibly immoral.

133. While the Plaintiff accepts that many constitutionally valid differentia bear a rational relation to the object of advancing morality, it does not a fortiori follow that all differentia that purport to advance a moral object are constitutionally valid, or that all moral objects are of equal normative worth.

134. First, the Plaintiff observes that, beyond a stable “core” of incontrovertible moral concepts (no one would argue, for instance, against the proposition that theft is morally wrong), what other things constitutes “morality” can be fiercely contested – a situation made more complicated by differing belief systems prescribing mutually exclusive propositions as objective moral truths.

135. This means that, where a law makes classifications on the basis of advancing a “morality” that falls outside the stable “core” of incontrovertible moralities, that law in effect prioritises one person’s “morality” over another’s. A hypothetical makes this point clearer. Given that Buddhism teaches that the killing of all animals is cruel, would a law that prohibits all Singaporeans from eating meat be constitutionally valid on the basis that morality is being advanced (assuming that meat-eating is permissive rather than mandatory for other religions, and hence such a law would not be a violation of other persons’ Article 15(1) liberty)? This Court should conclude that, although such a law clearly advances morality without infringing fundamental liberties, nevertheless the advancement of such a “morality” is a less normatively sound social object than the advancement of an incontrovertible morality.

136. It would be inaccurate to describe s 377A as having the object of advancing morality. The truth is that many mainstream religious organisations and leaders have publicly opined that homosexuality is consistent with (even religious) morality.

137. The Plaintiff invites this Court to take judicial notice of the fact that the Youth Ministry of the Kong Meng San PhorKark See temple set up a booth at the Lesbian, Gay, Bisexual and Transgender (“LGBT”) Community Fair 2007, signifying its acceptance of openly gay youths into its fold. The Plaintiff also invites this Court to take judicial notice of the fact that there exist religious organisations such as the Free Community Church which teach that it is possible to be both homosexual and moral.

138. The Plaintiff further urges this Court to take judicial notice of the following public statements made by world religious leaders and organisations, openly pronouncing that homosexuality is consistent with religious morality.

139. The Holy See, the worldwide headquarters of the Roman Catholic Church which actively opposes homosexual marriage, has unequivocally stated that it is against the criminalisation of homosexual acts. The Holy See made this clear on 18 December 2008 in its Statement of the Holy See Delegation at the 63rd Session of the General Assembly of the United Nations on the Declaration on Human Rights, Sexual Orientation and Gender Identity :-

The Holy See continues to advocate that every sign of unjust discrimination towards homosexual persons should be avoided and urges States to do away with criminal penalties against them. [emphasis added]

140. On 4 January 2013, the House of Bishops of the Church of England has announced that gay clergy in civil partnerships with other men can become bishops so long as they remain celibate.

141. His Grace Archbishop Emeritus Desmond Tutu, a Nobel Peace Prize laureate and a retired Archbishop of Cape Town and Primate of the Church of the Province of South Africa, regularly speaks out against the criminalisation of homosexuality, a criminalisation that he views as incontrovertibly immoral :-

All over the world, lesbian, gay, bisexual and transgender people are persecuted. They face … criminal sanctions because of how they live and who they love. We make them doubt that they too are children of God – and this must be nearly the ultimate blasphemy. [emphasis added]

142. On 26 May 2010, the Bishops of the Anglican Church in Southern Africa jointly issued an official statement urging the government of South Africa to seek the release of two homosexual Malawian men who had been sentenced to jail for participating in a traditional engagement ceremony. The Bishops were unequivocal in their pronouncement that the criminalisation of homosexuality acts was inherently immoral and contrary to the teachings of the Scriptures:-

We see the sentence that has been handed down to these two individuals as a gross violation of human rights and we therefore strongly condemn such sentences and behaviour towards other human beings. We emphasize the teachings of the Scriptures that all human beings are created in the image of God and therefore must be treated with respect and accorded human dignity.. [emphasis added]

143. The Most Revered and Right Honourable Rowan Williams, the Archbishop of Canterbury and the leader of the Church of England, has been similarly equivocal in his view that Christian morality does not condone the criminalisation of homosexual activity :-

The existence of laws discriminating against sexual minorities as such can have no justification in societies that are serious about law itself. Such laws reflect a refusal to recognize that minorities belong, and they are indeed directly comparable to racial discrimination. Laws that criminalise certain kinds of sexual behaviour need the most careful scrutiny: legislation in this area is very definitely to do with the protection of the vulnerable from those with power to exploit and harm. Sexual violence against women and against children of both sexes is a tragic fact, especially in conflict-ridden societies and the law’s protection is urgently necessary. Go beyond this, and the territory is a lot more slippery. Many societies would now recognize that legal interference with some sorts of consensual sexual conduct can be both unworkable and open to appalling abuse (intimidation and blackmail). This concern for protection from violence and intimidation can be held without prejudging any moral question; religion and culture have their own arguments on these matters. But a culture that argues about such things is a culture that is able to find a language in common. Criminalise a minority and there is no chance of such a language in common or of any properly civil or civic discussion. [emphasis added]

144. The Most Revered and Right Honourable John Sentamu, Archbishop of York and second highest official of the Church of England, clearly denounced the criminalisation of homosexual activity even though he is against the notion of gay marriage :-

Second, I have pastorally supported people in same sex relationships even before Civil Partnerships came into being. And it is important to note one aspect of the remarks I made to the Telegraph. The interview took place in Jamaica, a country where homosexual relationships are still criminal acts. It was in this context that I said same sex relationships must not be diminished, condemned, criticised, or patronised in any sort of way. [emphasis added]

145. That there do exist mainstream religious leaders and bodies who do not opine that homosexual acts are immoral is at least prima facie evidence that the proposition “homosexual acts are immoral” is not incontrovertible, unlike a proposition like “adultery is immoral” or “murder is immoral”. Thus, the differentia employed by s 377A cannot be characterised as simply advancing morality – it is more properly characterised as advancing the “morality” of those opposed to homosexuality in precedence over the no less compelling “morality” of others who do not. The Plaintiff submits that such prioritisation of “moralities”, neither of which is more invalid than the other, is not a normatively strong social object worthy of being advanced.

146. The Plaintiff notes that many of the MPs supporting s 377A base their support on the fact that the majority of their constituents opine that homosexuality is immoral. The Plaintiff reminds this Court that, although the widespread nature of a moral belief may be evidence of moral incontrovertibility, the numerical superiority of those who hold a moral claim does not ipso facto result in moral incontrovertibility, and cannot be the touchstone for determining whether that moral claim is one normatively worth advancing. Such an approach is bad because it holds that the moral claims of a society’s majority will always amount to normatively valid social objects to be pursued by legislative classification, even if such classifications override other, no less invalid moral claims. Such an approach holds constitutional “laws” criminalising writing with the left-hand or authorising the persecution of “witches”, or prohibiting inter-racial marriage, merely by the ipse dixit of the majority will Parliament represents. Such an approach goes contrary to Article 4 of the Constitution, which elevates constitutional law beyond the reach of majoritarian politics. Such an approach renders “the purported entrenchment… of Articles 9(1) and 12(1)… little more than a mockery”: Ong Ah Chuan.

147. This Court needs not make a finding that homosexuality is moral. Rather, the Plaintiff urges this Court to make the finding only that homosexuality is not incontrovertibly immoral, and the Plaintiff has provided sufficient facts that would fortify such a finding. Once this Court recognises that homosexual conduct is not incontrovertibly immoral, it is then apparent that the only social object s 377A has a conceivable relation to – the object of advancing society’s “morality” – stands on extremely flimsy grounds.

148. It is true that this ground alone would not, under the “rational relation” standard, invalidate s 377A. However, the existence of various other factors stated above (viz that the differentia is founded on the immutable and natural attribute of homosexuality analogous to left-handedness; that s 377A actively undermines HIV prevention efforts; that s 377A is divorced from the social object of reducing non-consensual, underage sexual conduct; that s 377A is patently over-inclusive in criminalising family and friends of homosexuals) means that the normative weakness of s 377A’s only conceivable social object tips the balance in the direction of s 377A being inconsistent with Article 12(1).

3. A finding that s 377A is unconstitutional is consistent with Singapore’s communitarian, non-liberal public law framework.

149. In her speech supporting the retention of s 377A, Prof Thio warns that any jurisprudential approach that dismisses the constitutionality of s 377A rejects any role morality has to play in law-making, and rejects as unconstitutional all laws purporting to advance morality, resulting in a hyper-liberal society encouraging the individual’s “hedonism which breeds narcissism”. Similarly, Scalia J, in his dissenting opinion in Lawrence, warns that by striking down anti-homosexual laws as unconstitutional, the US Supreme Court has lamentably embarked on an irretrievable slippery slope towards invalidating “… laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity…”: Lawrence.

150. Both Prof Thio and Scalia J make the grave error of suggesting an all-or-nothing choice in the jurisprudential approach to moral legislation. They suggest that this Court’s jurisprudential approach can only either (1) validate all laws purporting to advance “morality”, without regard for the underlying normative soundness of the purported “morality”; or (2) invalidate all laws whose main object is the advancement of morality, including laws which advance incontrovertible moralities.

151. The Plaintiff’s approach, which argues that advancing controvertible “moralities” is of lower normative worth than advancing incontrovertible ones, rejects both Prof Thio and Scalia J’s simplistic analyses. That approach holds that it is possible for a constitutional order to both (1) embrace the important role morality and communitarian obligations have to play in constitutionally valid legislation, and (2) at the same time to impose constitutional limits on legislation purporting to advance “morality”. The Plaintiff’s approach is far from any philosophy that encourages “hedonism which breeds narcissism”.

152. Case law from apex courts around the world constantly recognises that judicial limits on the Legislature’s constitutional competence to pass moral legislation is in fact consistent with the recognition that good law needs to be informed by good morality.

153. The majority of the US Supreme Court in Lawrence has endorsed the Plaintiff’s argument that there is a material distinction between laws that advance incontrovertible as opposed to those that advance controvertible moralities. The latter are more often held to be unconstitutional. In Lawrence, majority of the Court held :-

The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.

154. Similarly, O’Connor J held :-

That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations—the asserted state interest in this case— other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group. [emphasis added]

155. As we can see from the above extracts, both the majority of the US Supreme Court and O’Connor J draw a distinction between constitutionally valid moral legislation (such as a law prohibiting coercive homosexual acts) and constitutionally invalid moral legislation (such as a law prohibiting homosexual acts per se). The former criminalises an incontrovertible immorality, while the latter criminalises a highly doubtful one.

156. The High Court of Delhi in Naz Foundation too drew a distinction between constitutionally valid and invalid laws that purport to be grounded on morality :- …popular morality or public disapproval of certain acts is not a valid justification for restriction of the fundamental rights under Article 21. Popular morality, as distinct from a constitutional morality derived from constitutional values, is based on shifting and subjecting notions of right and wrong. If there is any type of “morality” that can pass the test of compelling state interest, it must be “constitutional” morality and not public morality. [emphasis added]

157. Similarly, Sachs J in the Constitutional Court of South Africa case of National Coalition reiterated that a holding that there are constitutional limits on the extent to which the Legislature can enact “morality” laws is nevertheless consistent with a judicial philosophy recognising the important role morality has to play in lawmaking :-

A state that recognises difference does not mean a state without morality or one without a point of view. It does not banish concepts of right and wrong, nor envisage a world without good and evil. It is impartial in its dealings with people and groups, but is not neutral in its value system. The Constitution certainly does not debar the state from enforcing morality. Indeed, the Bill of Rights is nothing if not a document founded on deep political morality. What is central to the character of the state, however, is that the dictates of the morality which it enforces, and the limits to which it may go, are to be found in the text and spirit of the Constitution. [emphasis added]

158. Similarly, the High Court of Fiji in the case of McCoskar, while holding that a law criminalising homosexual conduct was unconstitutional, also held that the views of the population on the morality of homosexual conduct had been given due weight, as opposed to being merely disregarded :-

All parties to this appeal recognize there is a strong body of genuine and sincere conviction shared by a large number of responsible members of the Fijian community that any change in the law to decriminalize homosexual conduct would seriously damage the moral fabric of society. The existence of such strongly held views among such an important sector of society is certainly relevant for the purposes of interpretation of the constitution. [emphasis added]

159. In the Philippines, the Supreme Court found that the Commission of Elections had made an impermissible distinction on the basis of sexual orientation when it refused to register the organisation AngLadlad as a political party. The Supreme Court did not recognise homosexuals as a class requiring special protection. Instead it found that the classification imposed by the Commission on Elections was irrational, in violation of the equal protection clause of the Constitution. The electoral commission had argued that since ‘the majority of the Philippine population considers homosexual conduct as immoral and unacceptable,’ this was sufficient reason to disqualify the political party. The Court strongly rejected this idea :-

Indeed, even if we were to assume that public opinion is as the COMELEC describes it, the asserted state interest here – that is, moral disapproval of an unpopular minority – is not a legitimate state interest that is sufficient to satisfy rational basis review under the equal protection clause. The COMELEC’s differentiation … furthers no legitimate state interest other than disapproval of or dislike for a disfavoured group.

160. The Plaintiff’s reasoning has even been endorsed by the Holy See, the worldwide headquarters of the Roman Catholic faith. In the seminal Vatican Declaration, the Holy See was unequivocal in its proclamation that, under Catholic doctrine, the state does not have the competence to pass criminal laws purporting to regulate personal morality where such laws are not necessary to maintain the public order :-

Therefore the right to religious freedom has its foundation not in the subjective disposition of the person, but in his very nature. In consequence, the right to this immunity continues to exist even in those who do not live up to their obligation of seeking the truth and adhering to it and the exercise of this right is not to be impeded, provided that just public order be observed. [emphasis added]

161. It is therefore unsurprising that the Holy See has clearly announced that it is against all forms of discrimination against homosexuals, in particular the criminalisation of homosexuality.

162. The English Home Office and the Scottish Home Department in the seminal Wolfenden Report which recommended that laws criminalising buggery be repealed, also support the Plaintiff’s contention that a finding that laws such as s 377A is fundamentally repugnant need not be inconsistent with a public law approach that respects the value of communitarian morality :-

Unless a deliberate attempt is to be made by society, acting through the agency of the law, to equate the sphere of crime with that of sin, there must remain a sphere of private morality and immorality which is, in brief and crude terms, not the law’s business. To say this is not to condone or encourage private immorality. On the contrary, to emphasise the personal and private nature of moral and immoral conduct is to emphasise the personal and private responsibility of the individual for his own actions, and that is a responsibility which a mature agent can properly be expected to carry for himself without the threat of punishment from the law. [emphasis added]

163. The approach taken by the Vatican Declaration and the Wolfenden Report, as well as comparative constitutional jurisprudence from the United States, India and Hong Kong, is thus far more nuanced than the approach advocated by Prof Thio and Scalia J, or the approach Prof Thio and Scalia J claims is the only alternative to their approach. This approach rejects Prof Thio and Scalia J’s approach, which constitutionally validates all laws purporting to advance majoritarian “morality”, including the “morality” perhaps of persecuting “witches” or left handed people, as long as this is in keeping with the “moral” claims of a majority of the electorate. This approach also rejects the other extreme of “hedonism which breeds narcissism” because it recognises that incontrovertible moralities, especially public moralities needed to secure public order, can be advanced by legislation in accordance with the Constitution. This is a legally and normatively sophisticated approach which advocates that it is very much possible for notions of societal morality to co-exist with notions that laws purporting to advance societal morality must be subject to constitutional limits. This approach effectively pre-empts Scalia J’s fears that “laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity… are called into question by today’s decision”: Lawrence.

D. The fact that female homosexuals have ceased to be criminals with the repeal of s 377 of the Penal Code further shows that Singapore society’s “morality” does not demand the disapprobation of homosexuality.

164. The Plaintiff reminds this Court that, with the repeal of s 377 of the Penal Code in 2007, homosexual acts between female persons ceased to be illegal. The Plaintiff further reminds this Court that Parliament did not decriminalise all sexual acts that would previously have been within the ambit of the old s 377 – it enacted specific provisions criminalising necrophilia (the new s 377) and bestiality (s 377B). Parliament repealed s 377 with the main purpose of decriminalising non-vaginal sex between heterosexuals. But it must not be forgotten, that – with the enactment of the new s 377 and s 377B without an equivalent provision criminalising lesbian sex – Parliament unequivocally intends that the social object of advancing society’s “morality” does not extend to the prohibition of female homosexuality. This clear legislative intent is further evidence of the fact that either (1) homosexuality is not incontrovertibly immoral, or that (2) even if (which is denied) homosexuality is incontrovertibly immoral, the social object of advancing “morality” by prohibiting homosexuality is not a social object normatively worth advancing.

165. The Plaintiff also directs this Court’s attention to the Report of the Singapore Government to the CEDAW committee, titled “Committee on the Elimination of Discrimination against Women: Pre-session working group, Responses to the list of issues and questions with regard to the consideration of the fourth periodic report, 12 May 2011, Forty-ninth session, 11 – 29 July 2011. The Plaintiff takes liberty to quote verbatim an excerpt in the report :-

31. Please comment on reports with regard to prevalent and systematic discrimination against women based on sexual orientation and gender identity in the social, cultural, political and economic spheres in the State party. What measures are being undertaken to address these problems, especially with a view to destigmatizing and promoting tolerance to that end.

31.1 The principle of equality of all persons before the law is enshrined in the Constitution of the Republic of Singapore, regardless of gender, sexual orientation and gender identity. All persons in Singapore are entitled to the equal protection of the law, and have equal access to basic resources such as education, housing and healthcare. Like heterosexuals, homosexuals are free to lead their lives and pursue their social activities. Gay groups have held public discussions and published websites, and there are films and plays on gay themes and gay bars and clubs in Singapore. [emphasis added]

166. It is noteworthy that the Singapore Government has voluntarily recognised that the Singapore Constitution prohibits socio-economic discrimination only on the basis of a person’s sexual orientation, although sexual orientation is not a prohibited ground of legislative differentiation enumerated by Article 12(2) of the Constitution. In one fell swoop, the Singapore Government recognised that any law that purports to treat homosexuals differently in relation to housing, medical and employment benefits only on the basis of their homosexuality does not pass constitutional muster.

167. It would be an odd legal position to hold that a law fails the Article 12(1) standard if it denies particular housing benefits to a homosexual only on the basis of his sexual orientation, while also holding that a much more drastic law that criminalises a homosexual only on the basis of his sexual orientation (viz s 377A) does pass constitutional muster.

168. The Plaintiff acknowledges that this Court is not bound by the Government’s interpretation of the Constitution. Nevertheless, the Government’s statement, at the very least, is strong evidence supporting the proposition either (1) that homosexuality is not an incontrovertible immorality deserving official disapprobation, or (2) that even if homosexuality were incontrovertibly immoral, the advancement of “morality” by criminalising homosexuality is not a normatively worthy social object worthy of safeguarding.

169. The Plaintiff’s reasoning above has been endorsed by Sachs J in National Coalition, who held that the fact that lesbianism is not criminalised is ample evidence that laws criminalising sexual relations between men served no legitimate social purpose, instead serving only as a statement of dislike and prejudice :- Outside of regulatory control, conduct that deviates from some publicly established norm is usually only punishable when it is violent, dishonest, treacherous or in some other way disturbing of the public peace or provocative of injury. In the case of male homosexuality however, the perceived deviance is punished simply because it is deviant. It is repressed for its perceived symbolism rather than because of its proven harm. If proof were necessary, it is established by the fact that consensual anal penetration of a female is not criminalised. Thus, it is not the act of sodomy that is denounced by the law, but the so-called sodomite who performs it; not any proven social damage, but the threat that same-sex passion in itself is seen as representing to heterosexual hegemony. [emphasis added] E. Not only does s 377A bear no conceivable, let alone rational, relation to the object of alleviating the spread of Human Immunodeficiency Virus (“HIV”), a law like s 377A would in fact actively undermine efforts to prevent and mitigate HIV.

170. In this section, the Plaintiff submits that s 377A, in not going any way at all towards preventing and mitigating the spread of HIV, bears no conceivable, let alone rational, relation with this object. In making his submissions on this point, the Plaintiff obtains considerable assistance from the amicus curae brief of American Public Health Association, National Mental Health Association, American Orthopsychiatric Association, AIDS Action, National Alliance of State and Territorial AIDS Directors, Association of Nurses in AIDS Care, National Minority AIDS Council, and the Whitman-Walker Clinic (“APHA Brief”) tendered to the US Supreme Court in Lawrence.

1. Any argument that s 377A furthers HIV prevention introduces a post-hoc justification that this Court should not accept.


171. Preliminarily, the Plaintiff reminds this Court that it was never the Government’s position that the aims of retaining s 377A included the prevention and mitigation of HIV.(see Plaintiff’s Supplemental Submissions at Part IC-D) A press release by the Ministry of Home Affairs (“MHA”) gave the following reason for its proposal not to repeal s 377A (Ministry of Home Affairs Press Release, “Summary of Key Amendments to the Penal Code” (17 September 2007)) :- Public feedback on this issue has been emotional, divided and strongly expressed with the majority calling for its retention. MHA recognizes that we are generally conservative society and that we should let the situation evolve.

172. The issue of HIV prevention and mitigation virtually did not figure at all in Parliamentary debates on the retention of s 377A. Among the 12 Members of Parliament (“MPs”) who spoke in favour of retaining s 377A, only Nominated MP Prof Thio made the assertion, unsupported by any of her House peers, that s 377A advanced public health :-

Sir, public health and safety is a legitimate purpose served by the 377A ban on homosexual anal and oral sex. Both these practices are efficient methods of transmitting sexual diseases and AIDs/HIV which are public health problems. These are not victimless crimes as the whole community has to foot the costs of these diseases.

173. The proposition that s 377A serves the social object of aiding the HIV cause thus simply is not borne out by legislative intent. Given that even Parliament gave short shrift to the notion that s 377A helps in preventing and mitigating HIV, this Court should be slow to take seriously the proposition that Parliament intended s 377A to serve the social object of solving the HIV problem. Under the “rational relation” test, there is simply no Parliamentary intent of advancing public health that this Court is capable of deferring to. Under the “strict scrutiny” test, the fact the object of reducing HIV rates did not figure at all in both the legislator’s and the Government’s positions undermines any argument that s 377A serves the “compelling interest” of preventing and mitigating HIV.

2. S 377A, by being both patently over and under-inclusive in addressing HIV problem, is entirely divorced from the social object of preventing the spread of HIV.

174. Even if the Defendant were to belatedly deem the mitigation of HIV to be an object of s 377A that Parliament intended to advance, s 377A, by being both patently over and under-inclusive in addressing the HIV problem, is “so far removed from this purported public health objective that it would be impossible to credit preventing AIDS as its legitimate legislative purpose, even if the State so claimed”: APHA Brief. Although the Plaintiff accepts the proposition that not all classifications are perfect, that the complexity of public administration demands that Parliament be given a reasonable margin of appreciation (Taw Cheng Kong (CA) ), and that this Court is institutionally less competent than our nation’s elected representatives in assessing complex questions of policy, this proposition nonetheless does not provide Parliament with carte blanche authority to make laws that are so fundamentally removed from their purported social objects that they exceed the bounds of any reasonable margins of appreciation.

175. First, s 377A, by criminalising a wide range of conduct which is scientifically incapable of transmitting HIV, is patently over-inclusive. S 377A potentially criminalises not just homosexual sodomy but also relatively more innocuous acts such as kissing or holding hands.

176. Second, s 377A is also patently over-inclusive by failing to distinguish between sexual practices posing high risks of transmitting HIV, and those that pose virtually negligible, if any, risks. Monogamous gay couples, neither of whom are HIV-positive, who enjoy nothing but protected sex between themselves pose scientifically negligible risks of transmitting HIV: APHA Brief. Yet s 377A makes them offenders all the same.

177. The Defendant may raise the counter-argument it would be “legislatively impractical, if not impossible” (Taw Cheng Kong (CA) ) to legislatively distinguish between safe and unsafe homosexual practices. The Defendant may argue that, given the difficulties of proving what occurs in private, a “broad-brush” approach that catches all homosexuals, whether engaging in safe sexual practices or not, is warranted. If this argument were to be taken seriously, then s 377A is patently under-inclusive. Given that unsafe heterosexual practices are similarly scientifically capable of transmitting HIV , would logic demand that a similar “broad-brush” approach be taken against all forms of heterosexual sexual activity, safe or unsafe, as well? The absurdity of this approach when viewed in its hypothetical application to heterosexual couples, is reflective of the absurdity in its application against only gay couples.

178. Fourth, utilising sexual orientation alone as the differentia for advancing the object of reducing HIV prevalence is patently irrational because HIV arises not from homosexuality per se, but from unsafe sexual practices – whether heterosexual or homosexual. This submission is a response to assertions by Prof Thio and Associate Prof Yvonne C Lee (“Assoc Prof Lee”) that homosexual activities present a distinct HIV problem, whether they are safe or not. They argue that: (1) because homosexuals have proportionally higher HIV-infection rates which arguably shows that homosexuals tend to engage more in unsafe sexual practices, this leads to (2) the conclusion that homosexual acts per se bear a causal relationship with higher incidences of HIV, presenting a problem distinct from heterosexual unsafe sex and hence meriting differential treatment against all adults engaging in homosexual acts, regardless of whether they practise safe sex or not. In the 22 October Debates, Prof Thio argues :-

Opposite-sex sodomy is harmful, but medical studies indicate that same-sex sodomy carries a higher price tag for society because of higher promiscuity and frequency levels. The New York Times reported that even informed homosexuals return to unsafe practices like bare-backing and bug-chasing after a health crisis wanes. A British Study showed that the legalisation of homosexual sodomy correlated with an upsurge of STDs among gays. Common sense tells us that with more acceptance, any form of consensual sexual behaviour increases. Sodomy laws have some deterrent effect.

It is rational for the state to target the most acute aspect of a problem. The legal issue is not whether the state should be concerned with heterosexual sodomy but it is reasonable to believe same-sex sodomy poses a distinct problem. Medical literature indicates that gays have disproportionately higher STD rates, which puts them in a different category from the general public, warranting different treatment. [emphasis added]

179. Similarly, Assoc Prof Lee states, in her article :-

It is noteworthy that in the latest report of the U.S. Centers for Disease Control and Prevention, persons infected through male-to-male sexual contact, high-risk heterosexual conduct, injection drug use, both male-to-male sexual contact and IDU, and other contact accounted for 48.1%, 27.6%, 18.5%, 5% and 0.8% of the total number of persons living with HIV in the U.S. in 2006, respectively. Singapore’s Ministry of Health has just confirmed that out of the 153 new HIV cases detected in the first six months of 2008, homosexual and bisexual transmissions accounted for 32% and 5% respectively.207 While not offering conclusive medical views, which is rendered difficult by the politicisation of science, the point here is to demonstrate the reasonableness of the proposition that homosexual or male-to-male sex is a more dangerous form of sexual activity, as inferred from publicly available statistics. [emphasis added]

180. It is startling how quickly both Prof Thio and Assoc Prof Lee jumps from the (albeit accurate) premise that homosexuals suffer higher rates of HIV infection, to the inaccurate conclusion that therefore homosexual acts per se, irrespective of whether they are safe practices or not, are inherently more dangerous than heterosexual acts.

181. With respect, both Prof Thio and Assoc Prof Lee confuse causation with correlation. That there is a higher incidence of HIV among homosexuals does not lead to the logical conclusion that homosexual acts per se are causative of HIV. This is akin to saying that, given that three-quarters of sickle-cell anaemia arises from Africa, being African per se causes sickle-cell anemia. The proper causal agent of HIV is unsafe sexual practices, whether homosexual or heterosexual, not homosexual acts per se. S 377A, in capturing the wrong mischief, is patently irrational if its object is to reduce the incidence of HIV.

3. In fact, a law such as s 377A actively undermines the object of preventing and mitigating the spread of HIV.

182. Not only does the use of sexual orientation (without distinguishing between safe or unsafe homosexual activities) as a basis for differential treatment bear no conceivable relation to the object of reducing and mitigating the spread of HIV, international public health opinion and comparative jurisprudence have substantially agreed that laws such as s 377A actively undermines the effectiveness of HIV prevention efforts. The APHA Brief cogently summarises the real impediments to effective HIV mitigation programmes posed by a statute criminalising homosexual activities :-

…sodomy laws have the perverse effect of impeding efforts to curb the transmission of HIV. … and criminalization in this context is particularly likely to interfere with public health protection for a number of reasons.

The Homosexual Conduct Law interferes with AIDS public education efforts by putting health educators in the untenable position of appearing to facilitate unlawful behavior…

Moreover, the Homosexual Conduct Law discourages Texas’s gay citizens from seeking accurate public health information concerning HIV transmission. Openly gay people who attend educational presentations on AIDS risk reduction may fear that they are admitting to engaging in criminal activity. The fear of prosecution also may deter lesbians and gay men from speaking candidly about their sexual behaviors and asking necessary questions…

In addition to the adverse impact of sodomy laws on public education efforts, such laws may deter gay people from being candid with their physicians concerning behavior that may expose them to HIV and in some cases may discourage them from getting tested or seeking treatment. [emphasis added]

183. The section “Interests of Amici Curae” clearly shows the special expertise these amici have in the work of HIV prevention, and hence their authority to hold opinions on the most efficacious means of preventing and mitigating the spread of HIV. Given that these are professional medical bodies , it would be improvident to simply dismiss their professional opinion as merely “poor politicised pseudo-‘science’”, as Prof Thio and Assoc Prof Lee do.

184. This Court should note that the views expressed by the experts in the APHA brief are similarly expressed by Assoc Prof Roy Chan (“Assoc Prof Chan”), President of Action for Aids in Singapore, in his article “Sections 377 and 377A of the Penal Code – Impact on AIDS Prevention and Control”.

185. This Court should also note that UNAIDS, the United Nations (“UN”) body dedicated to delivering universal access to HIV prevention, treatment, care and support also endorses the view that laws making it a crime for persons to engage in homosexual acts poses a significant impediment for efforts to reduce the spread of HIV. The UNAIDS, having conducted an assessment of HIV prevention and mitigation processes which included consultations among more than 100 countries and collaborations with seven regional bodies including the Association of Southeast Asian Nations (“ASEAN”), presented the report “United Nations Assessment by UNAIDS to the General Assembly on Scaling Up HIV Prevention, Treatment, Care and Support, March 24 2006” to the UN General Assembly. In this assessment, UNAIDS, using strong language, expressed that stigma, discrimination and criminalisation of men who have sex with men constitute a major impediment to efforts to stem the increase in HIV infections :-

Country and regional consultations consistently reported that legal, social and cultural barriers are undermining access to interventions for those most at risk of HIV infection and most affected by AIDS. Violence against women, drug users, sex workers and men who have sex with men and other HIV-related human rights abuses are still widespread. [emphasis added]

186. The Global Commission on HIV and the Law (“Global Commission”), an independent body convened by the United Nations Development Programme (UNDP) on behalf of UNAIDS, undertook 18 months of extensive research, consultation, analysis and deliberation. This Commission was supported by a Technical Advisory Group, which reviewed and analysed existing public health and legal evidence and also commissioned original analysis. Seven regional dialogues were convened to share and deliberate on evidence and experience. The result of this deliberation was reported in the Global Commission’s “Fact Sheet on HIV and the Law: Risks, Rights & Health”, which clearly pronounces :-

Laws and practices that criminalise and dehumanize populations at highest risk for HIV make them more vulnerable and drive them away from HIV, harm reduction and health services… 78 countries criminalise same sex sexual activity. In Carribean countries where homosexuality is criminalised, almost 1 in 4 MSM is HIV-positive, compared to 1 in 15 MSM in countries where it is not. [emphasis added]

187. The Global Commission and UNAIDS’ findings find robust support in two separate and independent papers published in The Lancet, a leading medical journal currently ranked second out of 153 journals in the General Medicine Category (2011 Journal Citation Reports, Thomson Reuters 2012). On 20 July 2012, The Lancet published “Common roots: a contextual review of HIV epidemics in black men who have sex with men across the African diaspora”, Vol 380, Issue 9839, Pages 411- 423, a paper by eminent professors from the National Center for HIV/AIDS, Viral Hepatitis, STD and TB Prevention, Centers for Disease Control and Prevention, the Department of Psychology of the Georgia State University, the Department of Medicine of Emory University, the Center for AIDS Prevention Studies of the University of California San Francisco, and the Department of Sociomedical Sciences of Columbia University. One of the objects of that paper was to use of “meta-analytic methods to assess differences in the prevalence of HIV infections between black MSM and general populations, including disparities between … countries with and without homosexuality criminalisation policies [emphasis added]”. The research pointed unequivocally to the conclusion that :-

Disparities in the prevalence of HIV infection are greater in African and Carribean countries that criminalise homosexual activity than in those that do not criminalise such behaviour.

188. This finding is supported by the other paper published in The Lancet on 20 July 2012, “A call to action on comprehensive HIV services for men who have sex with men”, Vol 380, Issue 9839, Pages 424-438. This was a paper by eminent professors of the Center of Public Health and Human Rights, John Hopkins Bloomberg School of Public Health; Rollins School of Public Health; Beath Israel Deaconess Medical Center of Harvard Medical School; the Asociacion Civil Impact Salud y Educacion (IMPACTU) in Lima, Peru; the Centre for the Development of People in Lilongwe, Malawi; the Foundation for AIDS Research in Washington DC; Makerere University in Kampala, Uganda; the International AIDS Society in Geneva, Switzerland; and University Rene Descartes in Paris, France, UNAIDS. The conclusion of their research was similarly unequivocal :-

Where surveillance has been done, it has shown that men (MSM) who have sex with men bear a disproportionate burden of HIV. Yet they continue to be excluded, sometimes systematically, from HIV services because of stigma, discrimination and criminalisation. This situation must change if global control of the HIV epidemic is to be achieved.

189. The paper made a clear assessment that there is a significant correlation between the criminalisation of same sex sexual activity and the higher incidence of HIV infection among men who have sex with men, thereby undermining any argument that laws criminalising homosexual activity result in improvements to the HIV situation.

190. This Court should further note that the petitioner in the public interest litigation case of Naz Foundation was itself a Non-Governmental Organisation (“NGO”) working in the field of HIV prevention and mitigation, and commenced suit in that case precisely because laws criminalising homosexual conduct was severely hampering its efforts to reduce the incidence of HIV among members of the homosexual community. As the High Court of Delhi noted :-

The petitioner NGO has been working in the field of HIV/AIDS Intervention and prevention. This necessarily involves interaction with such sections of society as are vulnerable to contracting HIV/AIDS and which include gay community or individuals described as “men who have sex with men” (MSM).

191. The incontrovertible evidence that laws criminalising homosexual conduct undermine efforts to stem the spread of HIV has been endorsed in constitutional jurisprudence. In Naz Foundation, the High Court of New Delhi endorsed the submission by the petitioner that s 377 of the Indian Penal Code (in parimateria with the repealed s 377 of the Singapore Penal Code) actively hampered efforts by AIDS organisations to prevent and mitigate the spread of AIDS :-

The second legislative purpose elucidated is that Section 377 IPC serves the cause of public health by criminalising the homosexual behaviour. As already held, this purported legislative purpose is in complete contrast to the averments in NACO's affidavit. NACO has specifically stated that enforcement of Section 377 IPC adversely contributes to pushing the infliction underground, make risky sexual practices go unnoticed and unaddressed. Section 377 IPC thus hampers HIV/AIDS prevention efforts. [emphasis added]

192. The proposition that laws such as s 377A not only bears no rational relation to, but actively hampers the social object of reducing HIV, was similarly endorsed by the UN Human Rights Committee hearing a human rights complaint under the International Covenant on Civil and Political Rights in Toonen v Australia, Communication No. 488/1992 :-

As far as the public health argument of the Tasmanian authorities is concerned, the Committee notes that the criminalization of homosexual practices cannot be considered a reasonable means or proportionate measure to achieve the aim of preventing the spread of AIDS/HIV. The Government of Australia observes that statutes criminalizing homosexual activity tend to impede public health programmes "by driving underground many of the people at the risk of infection". Criminalization of homosexual activity thus would appear to run counter to the implementation of effective education programmes in respect of the HIV/AIDS prevention. Secondly, the Committee notes that no link has been shown between the continued criminalization of homosexual activity and the effective control of the spread of the HIV/AIDS virus. [emphasis added]

193. In conclusion, not only does s 377A bear no conceivable, let alone rational, relation to the object of preventing and mitigating HIV, international opinion has agreed that laws such as s 377A effectively undermines efforts to prevent and mitigate HIV. The constitutionality of s 377A cannot be upheld on the ground that this object is being “advanced”.

F. S 377A, although going “some way” in reducing the incidence of non-consensual, underage or public homosexual acts, nevertheless bears no rational relation to this object.

1. Our Court of Appeal clarified that a statute does not survive the “rational relation” test by only going “some distance” towards achieving an object.

194. As it stands, the Government’s current stance seems to be that “it will not be proactive in enforcing the section against adult males engaging in consensual sex with each other in private”: 22 October 2007 Debates. The Defendant may argue that s 377A passes the “rational relation” test because it is only selectively enforced against individuals who commit homosexual acts in public, non-consensually or with underage boys, and hence goes “some distance” or “some way” in achieving the objects of reducing incidences of public, non-consensual or underage homosexual acts.

195. The Plaintiff reminds this Court that selective enforcement of an unconstitutional law does not itself render the law constitutional: Tan Eng Hong (Standing) , and an executive “promise” not to proactively enforce s 377A does not amount to a binding obligation capable of negativing the real and credible threat of prosecution under s 377A against adults consensually having homosexual sex in private: Tan Eng Hong (Standing). This Court therefore must not abdicate its duty from measuring the rationality of s 377A by testing the full ambit of its statutory words – ie, whether the differentia of sexual orientation (without accompanying differentia such as whether the sex was consensual, between adults or done in private) bears a rational relation to the social objects of reducing incidences of underage, non-consensual or public sex.

196. Our Court of Appeal in Yong Vui Kong has rejected the proposition that, as long as a differentia goes “some distance” in achieving a social object, the statute will ipso facto survive the “rational relation” scrutiny. The Court held that a statute which imposes the mandatory death penalty on a “short-haired” drug trafficker goes contrary to Article 12(1) because “the length of the drug trafficker’s hair clearly does not bear any rational relation to the social object of the MDA”: Yong Vui Kong.

197. What is notable about the hypothetical posed in Yong Vui Kong is that a statute which utilised one rational differentia (the fact that the accused was a drug trafficker) and one irrational differentia (the fact that the accused had short hair) would not survive Article 12(1) scrutiny merely by the existence of the rational differentia. The fact that the hypothetical statute would penalise only drug traffickers – arguably a differentia with a rational relation to the object of reducing drug trafficking – would still be insufficient to save the statute from an Article 12(1) attack given the existence of the second, irrational differentia. It is obvious that a statute that provides that all short-haired persons, whether drug traffickers or not, would be subject to the mandatory death penalty in order to reduce drug trafficking, would bear absolutely no relation to the object of reducing drug trafficking and would hence be unconstitutional, even if the statute was selectively enforced only against short-haired drug traffickers. Such a statute would be patently over-inclusive as it would catch short-haired persons who do not traffic drugs.

2. S 377A is patently over-inclusive in reducing the incidence of non-consensual, underage or public homosexual acts.

198. The hypothetical statute posed in Yong Vui Kong is analogous to s 377A. In fact, s 377A is even more egregious than the Yong Vui Kong hypothetical because s 377A does not employ any differentia that is rationally related to the objects of reducing under-age, non-consensual or public sex. S 377A does not, for instance, provide that an offence is committed if sexual acts are committed between men (irrational diferentia) and one of them coerced the other into it (rational differentia). This Court should note that even this hypothetical statute, under the logic of Yong Vui Kong , would not survive an Article 12(1) challenge if there is no equivalent act criminalising coerced sexual conduct between a man and a woman – because the existence of a rational differentia does not save a statute plagued with another, irrational, differentia.

199. The over-breadth of s 377A is startling. It makes criminals out of adult, consensual and private homosexual conduct. The criminalisation of such individuals goes no way to achieving the social object of reducing non-consensual, public or underage sex. It cannot be sensibly argued that the usage of homosexual conduct per se as a differentia, without reference to whether such conduct was consensual, private or adult, bears a rational relation to the object of reducing rape, public sex and underage sex. S 377A cannot be held valid on this ground. 200. The Plaintiff’s reasoning has been endorsed by the WolfendenReport :- Our evidence, in short, indicates that the fear that the legalisation of homosexual acts between between adults will lead to similar acts with boys has not enough substance to justify the treatment of adult homosexual behaviour in private as a criminal offence…

G. S 377A is over-inclusive by making criminals of family and friends of gays.

201. The Plaintiff further submits that s 377A is patently irrational and arbitrary by making criminals of family and friends of gays who, instead of vilifying them for being gay, support, comfort and encourage them to be who they are rather than living lives of self-deception. In fact, case law on abetment by instigation has shown that even if family and friends who are fully aware of a person’s homosexuality do not expressly voice their encouragement of his homosexual lifestyle, their silent endorsement nevertheless amounts to abetment by instigation under s 107(a) of the Penal Code.

202. S 107(a) states:-

107. A person abets the doing of a thing who —

(a) instigates any person to do that thing…

203. The offence of abetment by instigation is made out where there was “active support, stimulation or encouragement” of the offence: Balakrishnan.

204. To understand how this rule works, the Plaintiff undergoes a brief survey of the precedents.

205. Abetment by instigation was successfully made out in Public Prosecutor v Lim Tee Hian, [1991] 2 SLR(R) 393 (SGHC) (“Lim Tee Hian”). In that case, the accused was sole beneficiary to a life insurance policy taken out by the deceased-insured, and had claimed insurance payouts shortly after the deceased’s suicide. The High Court made the following inferences of fact :-

a. the accused knew that the deceased trusted him so much so that she would sacrifice her life if doing so would get him out of trouble ;

b. the accused wilfully lied to the deceased that he was under massive debt owed to phantom creditors, making the deceased extremely anxious to get the accused out of his “predicament” ;

c. the accused challenged the accused that “if she was daring” she could commit suicide at his home and he would make arrangements to make it seem like an accident.

206. Thus the fact that the accused challenged the accused to commit suicide “if she was daring”, coupled with the accused’s wilful deception to the deceased in order to make her anxious about his financial circumstances and desperate to assist him were ipso facto sufficient to amount to “active encouragement” of the offence of suicide, even though the High Court did not make the finding that the accused actually directly encouraged the deceased to commit suicide.

207. In Public Prosecutor v Ng Ai Tiong, [2000] 1 SLR(R) 1 (SGHC) (“Ng Ai Tiong”), a more “indirect” abetment by instigation was made out. Here, the alleged primary offence was that of making a false statement. The accused did not directly instruct or encourage the potential offender to make a false statement – instead, the accused asked the potential offender questions, and repeated the question when the potential offender answered an unequivocal “no”, hoping to trap the potential offender into making a false statement. The High Court held that this was sufficient to make out abetment by instigation. Importantly, the High Court held that “it was not necessary for the abettor to expressly directly to the person to be abetted what exactly was to be done”: Ng Ai Tiong. It was therefore not fatal to the Prosecution’s case that the accused did not directly request the potential offender to make false statements – repeated questioning with the hope that the potential offender would “succumb” to making such statements sufficed.

208. The above authorities thus converge on two rules. First, abetment by instigation is made out only where there is active support, stimulation or encouragement such that the person abetted would be relatively more inclined to commit an offence than he would be without the encouragement. Second, however, such abetment needs not come in the form of direct encouragement to do the particular offence, as long as the acts committed by the abettor is sufficient to incline the potential offender towards committing an offence.

209. It is clear that family and friends of gay persons who know of, and support, the gay persons could be caught under s 107(a) of the Penal Code. Such family and friends could have directly encouraged the committing of s 377A – perhaps, by warning the gay persons to have safe sex. Family and friends may also instigate the committing of a s 377A offence in a more indirect manner – perhaps by expressing unconditional love notwithstanding the son’s homosexuality, or by expressing interest in matters of gay rights.

210. In fact, family and friends who do not expressly encourage, but quietly endorse gay person’s homosexual lifestyles (perhaps, by inviting a son’s boyfriend to dinner, or not saying anything when a son brings his boyfriend home for the night) are caught under s 107(a) as well. In the case of Balakrishnan, the accused’s mere presence at the location of the offence, without intervening to stop the offence, ipso facto raised an irresistible inference of active encouragement despite the fact that the accused said nothing to encourage the primary offenders to commit the offence. The Plaintiff takes liberty to repeat a passage of the judgment verbatim :-

As such, I was convinced that CaptPandiaraj’s very presence that afternoon, coupled with his indifference to the sadistic treatment meted out to the trainees, signified (a) his intention that his instructions be carried out; and (b) his support and encouragement of the instructors’ actions, which may well have stimulated them to greater heights. In my view, these factors were more than sufficient for a finding of abetment by instigation.

211. The Defendant may argue that without encouragement, gay persons would commit homosexual acts anyway. However, given that family and friends do provide strong sources of personal emotional support, an endorsement by them would indisputably encourage them to continue with their homosexual lifestyle, rather than feigning heterosexuality and getting into sham marriages.

212. Thus, it appears that family and friends of gay persons who know of such persons’ homosexuality can only escape liability under s 107(a) of the Penal Code by actively disapproving of the gay person’s homosexuality (this Court is reminded that quiet endorsement is insufficient to escape liability). S 377A, in tandem with s 107(a), forces friends and family to refuse to accept a fundamental and immutable attribute of a gay person’s homosexuality, rather than providing the gay person with much needed comfort and support. Even if this Court does not accept that homosexuality is a natural and immutable attribute, s 107(a) disallows families from making the autonomous choice to accept a son’s homosexuality in order to prevent family members from falling or drifting apart. While all of the legislators speaking in favour of retaining s 377A pay lip service to “family values” and the integrity of the family as social objects to be advanced by s 377A (22 October 2007 Debates ; 23 October 2007 Debates ), this statute in effect rends families apart. S 377A clearly bears no rational relation to the social object of preserving the family unit. S 377A, by making criminals of friends and family of gay persons who clearly display no morally blameworthy conduct, is patently irrational and over-inclusive.

213. Therefore, s 377A, by making criminals out of loving family members and friends is patently irrational, arbitrary and over-inclusive, in contravention of Article 12(1) of the Constitution.

H. Comparative and international jurisprudence in both liberal and non-liberal jurisdictions have held statutes criminalising homosexuality to be inconsistent with their respective constitutional equality provisions.

214. Regardless of which tests are applied and with what degree of scrutiny, international and comparative jurisprudence makes it abundantly clear that the criminalisation of private, adult, consensual same-sex sexual relationships is a prohibited difference in treatment on the basis of sexual orientation. This holds true regardless of whether the law criminalises a particular sexual act committed by anyone irrespective of their sex or sexual orientation, or all sexual activity with persons of the same sex.

215. The Hong Kong Court of Final Appeal in Secretary of Justice v Yau Yuk Lung Zigo and Another, [2007] 10 HKCFAR 335 (HKCFA) held that a statute criminalising homosexual buggery committed otherwise than in private was inconsistent with the constitutional right to equality enshrined by the Hong Kong Basic Law , although sexual orientation is not an enumerated ground of prohibited differentiation under the Basic Law.

216. In Salgueiro da Silva Mouta v Portugal, Application No. 33290/96, 21 December 1999, the European Court of Human Rights found that differences in treatment based on sexual orientation contravened Article 14 of the European Convention of Human Rights, an equality provision that similarly does not include sexual orientation as an enumerated ground of prohibited differentiation. 217. The Inter-American Commission on Human Rights in Karen Atala and daughters v Chile, case 12.502, 17 September 2010 confirmed that a distinction in treatment based on sexual orientation would be presumed incompatible with the American Convention and that only ‘weighty reasons’ would serve to justify it. 218. In 2004, the Constitutional Tribunal of Peru struck down an article of the Code of Military Justice that prohibited ‘dishonest acts against nature with persons of the same sex’. It concluded that this was a violation of the equal protection clause of the Peruvian Constitution. The Tribunal stated that it was a violation of the principle of equality for the Code to criminalise only sexual conduct between partners of the same sex.

219. In National Coalition, the South African Constitutional Court declared laws prohibiting consensual same-sex sexual acts between men unconstitutional. Justice Ackermann reasoned that s. 9(3) of the South African Constitution that provides for the right to non-discrimination ‘applies equally to the orientation of persons who are bi-sexual or transsexual and it also applies to the orientation of persons who might on a single occasion only be erotically attracted to a member of their own sex’. The Court unanimously found that the issue of gay relationships was not only a matter of protecting privacy rights, and a matter of dignity, but also a matter of affording equality before the law.

220. The UN Human Rights Committee found a law which criminalised various forms of sexual contact between men, including all forms of sexual contact between consenting adult homosexual men in private, to be contrary to the rights to equal protection before the law and freedom from discrimination in the International Covenant of Civil and Political Rights.

221. The High Court of Delhi in Naz Foundation similarly held that a law criminalising intimate conduct between homosexuals contravened the equality provisions of the Indian Constitution.

222. In Sunil Babu Pant, the Supreme Court of Nepal considered a writ petition by a Non-Governmental-Organisation (“NGO”) working with sexual minorities claiming violations of their equality rights. The petitioner sought full citizenship rights for members of the ‘third gender’ and the nullification of discriminatory laws against sexual minorities, including the repeal of criminal provisions dealing with ‘unnatural sex’. The Court declared this and other such provisions as being arbitrary, unreasonable and discriminatory.

223. Similarly in McCoskar v State, Criminal Appeal Case Nos HAA 85 & 86 OF 2005, 26 August 2005 (“McCoskar”), the High Court of Fiji held that a statute criminalising consensual homosexual intercourse in private violated the constitutional guarantee of equality.

224. In Lawrence, the majority of the US Supreme Court held that a Texan law criminalising sexual conduct between homosexuals was contrary to the 14th Amendment of the US Constitution, which guaranteed equality before the law.

225. The Plaintiff’s lengthy excursus of the comparative and international authorities above evinces a growing judicial consensus, in both liberal and non-liberal policies, that criminalising intimate conduct between members of the same sex constitutes a gross violation of the principle of equality before the law and equal protection of the law. While comparative and international jurisprudence is of course not binding on this Court’s interpretation of Article 12(1) of the Constitution, this Court should note that a finding in favour of the Defendant would go entirely against the tide of eminent international and comparative judicial opinion.

I. Eminent jurists and international organisations have pronounced that criminalising homosexual activity constitutes gross violation of international human rights norms.

226. Singapore is a signatory to the Convention of the Rights of the Child. This Court should therefore note that the Committee on the Rights of the Child has clearly pronounced that the right to non-discrimination children are entitled to includes the right to be protected against discrimination on the basis of sexual orientation, and the criminalisation of same-sex conducts amounts to such discrimination prohibited by the Convention. In the Committee on the Rights of the Child, General Comment 4: Adolescent Health and Development in the Context of the Convention on the Rights of the Child, the Committee on the Rights of the Child clearly pronounced :-

States parties have the obligation to ensure that all human beings below 18 enjoy all the rights set forth in the Convention without discrimination (art. 2), including with regard to “race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status”. These grounds also cover adolescents’ sexual orientation and health status (including HIV/AIDS)

227. Singapore is also a signatory to CEDAW. Similar to the Committee on the Rights of the Child, the Committee on the Elimination of Discrimination Against Women has clearly stated that State-parties have an obligation under CEDAW to decriminalise homosexual activities between women:-

The Committee notes with grave concern that homosexual behaviour is criminalised in Uganda… The Committee calls on the State Party to decriminalise homosexual behaviour and to provide effective protection from… discrimination against women based on their sexual orientation… [emphasis added]

228. Bodies of the United Nations have been unequivocal in pronouncing that criminalization of homosexual acts is not merely legislatively undesirable, but amounts to a gross violation of universal human rights.

229. On 18 December 2008, 66 states issued the Joint Statement on Sexual Orientation and Gender Identity. This statement clearly states that criminalisation of homosexual activity amounts to a violation of human rights :-

[6] We condemn the human rights violations based on sexual orientation or gender identity… in particular arbitrary arrest or detention…

[11] We urge States to take all the necessary measures… to ensure that sexual orientation or gender identity may under no circumstances be the basis for criminal penalties, in particular… arrests or detention. [emphasis added]

230. This Court should note that the signatories to this statement included Asian countries such as Japan, Nepal and Timor-Leste.

231. On 22 March 2011, 85 states issued the Joint Statement on Ending Acts of Violence and Related Human Rights Violations Based on Sexual Orientation and Gender Identity , affirming the previous joint statement issued in 2008.

232. The UN High Commissioner for Human Rights released her report titled “Discriminatory Laws and Practices and Acts of Violence Against Individuals Based On Their Sexual Orientation and Gender Identity” on 17 November 2011. 233. In introducing this Report before the Human Rights Council’s Panel on Ending Violence and Discrimination Against Individuals On The Basis Of Their Sexual Orientation And Gender Identity, the UN High Commissioner for Human Rights Navi Pillay stated :-

In accordance with resolution 17/19, we also, in our study, address discriminatory laws. An immediate area of concern is laws that criminalize individuals on the basis of their sexual orientation or gender identity. At least 76 countries retain laws that either explicitly criminalize same-sex relations between consenting adults, or contain vague prohibitions that are applied in a discriminatory way to prosecute LGBT people.

These laws are an anachronism, in many cases a relic of colonial rule. As the Human Rights Committee has confirmed repeatedly, they breach international human rights law, violating rights to privacy and to freedom from discrimination. They also cause enormous, unnecessary suffering, reinforce stigma, fuel violence, and undermine efforts to fight the spread of HIV/AIDS. [emphasis added]

234. The UN Secretary General supported the High Commissioner’s observations, stating :-

We see a pattern of… discrimination directed at people just because they are gay, lesbian, bisexual or transgender… This is a monumental tragedy for those affected -- and a stain on our collective conscience… [emphasis added]

235. Also of note are the Yogyakarta Principles: Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity (“Yogyakarta Principles”). These Principles are the culmination of a monumental project by the International Commission of Jurists and the International Service for Human Rights to clarify the reasons why criminalisation of homosexual activity, as well as other violations against persons on the basis of their homosexuality, are not only poor social policy but also amounts to grave breaches of international human rights law. These Principles were ratified by 25 distinguished human rights experts, including experts from non-Western countries such as Turkey, Pakistan, Kenya, India, Botswana, Thailand, Indonesia and China192. In the context of interpreting Articles 9(1) and 12(1) of the Constitution, Principles 2 and 7 of the Yogyakarta Principles are noteworthy.

236. Principle 6 concerns the “Right to Freedom From Arbitrary Deprivation of Liberty”, relevant to our understanding of international standards in the interpretation of provisions such as Article 9(1) of the Constitution. The Yogyakarta Principles are unequivocal in holding that arresting and detaining homosexuals on the basis merely of their homosexual conduct, even pursuant to laws permitting such arrest and detention, amount to arbitrary deprivation of liberty :-

Arrest or detention on the basis of sexual orientation or gender identity, whether pursuant to a court order or otherwise, is arbitrary. [emphasis added]

237. Principle 2 concerns the “Rights to Equality and Non-Discrimination”. This Principle aids our understanding of international standards in interpreting provisions similar to Article 12(1) of the Constitution. This Principle states that :- Discrimination on the basis of sexual orientation or gender identity includes any distinction, exclusion, restriction or preference based on sexual orientation or gender identity which has the purpose or effect of nullifying or impairing equality before the law or the equal protection of the law…

238. The Plaintiff acknowledges that this Court is not bound by international standards of interpretation of provisions similar to Articles 9(1) and 12(1) of the Constitution, or emerging international consensus that criminalisation of homosexual acts constitute not just poor policy but also grave violations of universal human rights. These international materials, however, do serve as a reminder to this Court that any interpretation contrary to international consensus would bring Singapore constitutional jurisprudence vastly out of step with the constitutional jurisprudence of eminent national courts as well as the clear pronouncements of international organisations vested with the duty to uphold universal human rights. On this understanding, the normative strength of s 377A is further weakened, and the Defendant’s argument that s 377A furthers a legitimate state objective further loses substance.

J. Deference to Parliament in and of itself cannot be sufficient ground for upholding the constitutionality of s 377A.

239. The Plaintiff acknowledges that this Court, being unelected is not institutionally competent to assess broad issues of social policy. The Plaintiff recognises that the complexity of public administration means that Parliament must be afforded a margin of appreciation, and that differentia employed in legislation need not necessarily be perfect or even the most desirable. The Plaintiff concedes that constitutional law does not occur in a vaccumn, and that this Court’s exercise in interpreting the Constitution must invariably take into consideration the prevailing sentiments of morality and decency.

240. At the same time, it is clear that legislative ipse dixit cannot in and of itself provide sufficient ground for the constitutionality of laws. No Parliamentary intent can save the constitutionality of a “law” criminalising writing with the left hand, or being more than 1.67 m tall, even if the prevailing popular mood demands such criminalisation. Lest it be thought that these examples are fanciful, the Plaintiff reminds this Court that it was not too long ago that the dictates of popular morality demanded “separate but equal” laws discriminating against the African-American community in the United States.

241. The Plaintiff is therefore shocked at the following excerpt in MP Indranee Rajah’s speech supporting the retention and constitutionality of s 377A, in which she suggested that as long as the popular mood demands it, slavery, and discrimination on gender, racial and religious grounds are a fortiori constitutionally sound :-

Mr Siew also talked about public morality as being the wrong touchstone. I think he said that public morality has been cited as the basis for legislation to enforce slavery, discrimination against racial and religious minorities, discrimination against women, etc. But in a way, that exactly proves the point. At the time when they had slavery, there were laws in place which reflected the public morality of that time. If you had been in America at that time when they had slaves and you had said to somebody, "You should not have slaves because slavery is wrong", nobody there, at that time, would have agreed with you because the society was such that that was the correct thing at that time. And that is precisely the point because societies do evolve. Clearly, we have evolved to a stage where we now regard slavery as wrong. We certainly regard discrimination on racial and religious grounds as wrong. But in some places, that is still regarded as correct, which just brings us back to the point that in each case, it is a question of what society is prepared to accept. [emphasis added]

242. With respect, this Court cannot condone MP Indranee Rajah’s reasoning, which upholds the constitutionality of all measures taken in the name of the popular mood. Such an approach does grievous injustice to Article 4 of the Constitution, which brings the fundamental liberties out of the reach of majoritarian politics.

243. The Plaintiff urges this Court to recognise that it is not Judicial overstepping on the Legislative sphere to hold that s 377A is in breach of the Singapore Constitution. The present circumstances warrant such a conclusion because s 377A, by making unapprehended criminals out of homosexuals simply for their natural and immutable attributes that do not harm nor indeed even concern the public order, is in gross breach of human rights, notwithstanding the fact that the popular mood may support such a measure.

244. Ma CJ, the present Chief Justice of the Hong Kong Court of Final Appeal, endorses the Plaintiff’s analysis. The Plaintiff takes liberty to quote the following excerpt of William Leung :-

52. I cannot leave this aspect of the case without dealing with one of the main arguments put forward by the Defendant: this was the concept of the margin of appreciation that should be accorded by the courts to the legislature whenever legislation is being challenged as being unconstitutional. This term encapsulates the recognition by the court that the legislature is in a better position to assess the needs of society whenever it passes legislation. It is not for the courts to take over this role; indeed the role of the court is to defer to the legislature in matters of policy…

53. There are, however, limits to the margin of appreciation that can be accorded to the legislature. Where there is an apparent breach of rights based on race, sex or sexual orientation, the court will scrutinize with intensity “the reasons said to constitute justification” : - see Ghaidan v Godin-Mendoza [2004] 2 AC 557, at 568 (paragraph 19) per Lord Nicholls of Birkenhead. Where the court does not see any justification for the alleged infringement of fundamental rights, it would be its duty to strike down unconstitutional laws, for while there must be deference to the legislature as it represents the views of the majority in a society, the court must also be acutely aware of its role which is to protect minorities from the excesses of the majority. In short, the court’s duty is to apply the law; in constitutional matters, it must apply the letter and spirit of the Basic Law and the Bill of Rights. [emphasis added]

245. The Constitutional Court of South Africa in National Coalition similarly supports the view that it is possible for a Court to strike down as unconstitutional a law prohibiting homosexuality even though such a law enjoys majoritarian support, while at the same time taking care never to intrude upon matters of policy best left to the Legislature :-

… this Court engages in a structured discourse centred on respect for human rights and non-discrimination. It reduces the danger of over-intrusive judicial intervention in matters of broad social policy, while emphasising the Court’s special responsibility for protecting fundamental rights in an affirmative manner. It also diminishes the possibility of the Court being inundated by unmeritorious claims, and best enables the Court to focus on its special vocation, to use the techniques for which it has a special aptitude, and to defend the interests for which it has a particular responsibility. [emphasis added]

246. At the very core, the Plaintiff urges this Court to recognise the Defendant’s “popular morality” argument for what it actually is: a thinly veiled attempt to express society’s inherent dislike and prejudice against a group of persons merely on the basis of their natural and immutable attributes and who, because of their numerical inferiority, do not have the necessary political clout to reduce discrimination against them. S 377A does not represent of any attempt to advance “morality”, or any other social object for that matter.

247. This truth was recognised by O’Connor J in her concurring opinion in Lawrence :-

Because Texas so rarely enforces its sodomy law as applied to private, consensual acts, the law serves more as a statement of dislike and disapproval against homosexuals than as a tool to stop criminal behavior. [emphasis added]

248. This truth was similarly recognised by the High Court of Fiji in McCoskar :- … while members of the public who regard homosexuality as amoral may be shocked, offended or disturbed by private homosexual acts, hits cannot on its own validate unconstitutional law.

249. The High Court of Delhi in Naz Foundation similarly recognised that laws criminalising homosexual conduct were thinly veiled attempts to express society’s disgust at a minority :-

Public animus and disgust towards a particular social group or vulnerable minority is not a valid ground for classification under Article 14 [equality before the law and equal protection of the law]. Section 377 targets the homosexual community as a class and is motivated by an animus towards this vulnerable class of people. [emphasis added]

250. The Plaintiff urges this Court not to align itself with MP Indranee Rajah, who asserts that slavery and overt discrimination on the basis of gender, race and religion pass constitutional muster as long as the popular mood supports such practices. Such an approach condones not the rule of law, but the rule of the majoritarian mob.

K. Taking all the factors into account, s 377A fails both the rational relation and the strict scrutiny test, and is therefore contrary to Article 12(1) of the Constitution.

251. The Plaintiff therefore summarises his Article 12(1) argument as follows:-

a. S 377A, by being patently vague, is not founded on an intelligible differentia;

b. because s 377A purports to differentiate a class of individuals only on the basis of a natural, immutable attribute akin to race or gender a more stringent test of Article 12(1) constitutionality than the “rational relation” test ought to be used;

c. because homosexuality is not incontrovertibly immoral, s 377A does not actually advance society’s morality – it only advances one group’s conception of “morality” in precedence over other groups’ (shared by the Holy See, the Archbishop of Canterbury, and the Kong Meng San PhorKar See Temple Youth Ministry);

d. the fact that lesbianism has ceased to be criminalised with the repeal of s 377 of the Penal Code, and the fact that Singapore’s Government has voluntarily recognised that socio-economic differentiation only on the basis of an individual’s sexual orientation does not pass Article 12(1) muster, are further evidence of the fact that (1) homosexuality is not incontrovertibly immoral; or, in the alternative, that (2) even if homosexuality were incontrovertibly immoral, the advancement of morality by criminalizing homosexuality is not a normatively worthy social object worth safeguarding.

e. the differentia employed in s 377A bears no conceivable, let alone rational, relation to the object of increasing public health such as reducing and mitigating the spread of HIV. In fact, s 377A effectively undermines efforts to stem the spread of HIV;

f. although the differentia employed in s 377A goes “some distance” or “some way” in addressing the problems of under-age, non-consensual and public sex, it is patently over-inclusive by making criminals of adult male persons who engage in consensual, private physical acts of intimacy. It must be reiterated that the physical acts of intimacy criminalised encompass not just homosexual sodomy, but also includes relatively more innocuous acts such as kissing, hugging or holding hands.

g. s 377A is patently over-inclusive by deeming as criminals family and friends of homosexuals who, instead of actively castigating them for being homosexual, give them much needed support, comfort or even silently endorses them for being only who they are;

CONCLUSION

252. To reiterate, s 377A of the Penal Code is inconsistent with the Constitution and is therefore void pursuant to Article 4 of the Constitution. This is because this statute:-

a. breaches the fundamental rules of natural justice and is therefore not “law” consistent with Articles 9(1) and 12(1) of the Constitution; and / or, in the alternative;

b. bears absolutely no rational relation with any legitimate social object and is therefore inconsistent with Article 12(1) of the Constitution.

253. The Plaintiff ends by reminding this Court of our Court of Appeal’s observations in Tan Eng Hong (Standing) :-

…we want to acknowledge that in so far as s 377A in its current form extends to private consensual sexual conduct between adult males, this provision affects the lives of a not insignificant portion of our community in a very real and intimate way. Such persons might plausibly assert that the continued existence of s 377A in our statute books causes them to be unapprehended felons in the privacy of their homes. [emphasis added]

254. Moral philosophers recognise three fundamental aims of criminal law: to deter, to rehabilitate, or to exact retribution. S 377A, in striking at individuals’ core and immutable natural attributes, perhaps advances its “deterrence” aim too successfully – by forcing many homosexuals to deny their fundamental and immutable identities, driving many to depression and suicide in the process. S 377A, in forcing family and friends of homosexuals to castigate these homosexuals for only being who they are, rends families apart – hardly a grand model of “rehabilitation”. What retribution does society need to exact on homosexuals, whose only “crimes” are to love? The Plaintiff urges this Court to recognise s 377A for what it ultimately is: a thinly veiled expression of society’s dislike for a group of persons only on the basis of their fundamentally immutable attributes. This Court ought to have no difficulty at all in holding that s 377A does not pass even the most permissive interpretations of what the Constitution authorises.

255. In the circumstances, and for the reasons stated above, the Plaintiff humbly prays that this application be allowed.

Dated this 04 day of February 2013


_____________________

Counsel for the Plaintiff

Mr. M. Ravi

M/s L F Violet Netto

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