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Table of Contents

QUESTIONS POSED BY THIS HONOURABLE COURT 2

PLAINTIFF’S CONTENTIONS 3

I. WHAT ARE THE OBJECTS OF S 377A OF THE PENAL CODE (CAP 224, 2008 REV ED SING) (“PENAL CODE”)? 3

A. Summary of this section 3

B. The purposive approach embodied by s 9A of the Interpretation Act (Cap 1, 2002 Rev Ed Sing) (“Interpretation Act”) allows this Court to take into account both the 2007 Parliamentary debates and other prior extrinsic materials which shed light on the Legislature’s intent on enacting, or retaining, s 377A. 4

1. 2007 Parliamentary Debates 4

2. Material relating to 1938 Singapore enactment of s 377A 6

3. Materials relating to the intent of the Labouchere Amendment, s 377 and the Buggery Act 1533 6

C. The evolution of s 377A from the 16th to the 21st centuries shows that s 377A remains on the statute books for the sole object of promoting a vision of society’s “morality”. 9

1. Buggery Act 1533 9 2. S 377 of the Indian Penal Code 10 3. Labouchere Amendment 13 4. 1938 enactment of s 377A in the Straits Settlements Penal Code 13 5. 2007 retention of s 377A of the Singapore Penal Code 14 6. Taking into account extrinsic materials from the 16th to the 21st centuries, the legislative purpose behind s 377A is the object of acceding to “society’s” or, more accurately, a particular group’s vision of morality. 15

D. The purposive approach prohibits this Court from taking into account hypothetical “objects” such as reducing HIV, or the incidence of underage and non-consensual sexual intercourse. 16

II. DOES S 377A SATISFY THE “INTELLIGIBLE DIFFERENTIA” STANDARD DEMANDED BY ARTICLE 12(1) OF THE CONSTITUTION (1985 REV ED SING, 1999 REPRINT) (“CONSTITUTION”)? 19

A. Summary of this section 19

B. S 377A fails the “intelligible differentia” standard because the vagueness in the language of the statute makes it virtually impossible, in many cases, to determine whether an individual falls within the differentiated class or outside it. 20

1. The “intelligible differentia” requirement is not met if the differentia the statute provides for is patently vague and uncertain. 20

2. Judicial interpretation does not cure the ambiguity of the term “gross indecency”. 23

3. A fundamental constitutional principle of the common law holds that individuals can be deprived of liberty only by clear and unambiguous laws. 29

B. S 377A fails the “intelligible differentia” requirement because there is absolutely no rational justification, in accordance with the putative object of s 377A, for differentiating between males who commit acts of gross indecency with other males, from females who commit acts of gross indecency with other females. 31

1. The “intelligible differentia” requirement is not satisfied merely by the existence of some difference between those in a differentiated class and those outside it. 31 2. Although males who engage in grossly indecent acts with other males are distinct from females who do so with other females by gender, this is an insufficient distinction, in the light of the putative objects of s 377A, to satisfy the “intelligible differentia”. 37

III. DOES S 377A, BY CRIMINALISING MALES WITHOUT CRIMINALISING FEMALES, SATISFY THE “RATIONAL RELATION” STANDARD DEMANDED BY ARTICLE 12(1)? 40

CONCLUSION 41

QUESTIONS POSED BY THIS HONOURABLE COURT

1. What are the possible intelligible differentia that we can rely on that indicate that s 377A infringes Article 12? 2. Should the Singapore Court only look to the original s 377A or the recent amendment? 3. Where did s 377A come from? Do I have to regard the object in India, UK and Singapore? 4. If I want to look at the original drafters, which foreign jurisdiction is relevant - UK, India or Singapore? 5. If anyone wants to rely upon intelligible differentia, attach relevant articles. 6. Why are male homosexual acts and not female homosexual acts criminalized? Is it because of genitalia or is it because of the spread of disease? Has this been established medically [the increased chance of spread of disease for male-to-male intimacy]? 7. In relation to the the criminalization of male homosexual acts and not female homosexual acts: What is the intelligible differentia here? Why male and not female? 8. How is such evidence relevant [referring to evidence presented in response to question #7]? 9. The Plaintiff answers Questions 2 to 4 in Part I, and Questions1, 5 to 8 in Part II.

PLAINTIFF’S CONTENTIONS

I. WHAT ARE THE OBJECTS OF S 377A OF THE PENAL CODE (CAP 224, 2008 REV ED SING) (“PENAL CODE”)?

A. Summary of this section

10. This Court posed the following questions:- 11. Question 2: should the Singapore court only look to the original s 377A or the recent amendment? 12. Question 3: where did s 377A come from? Do I have to give regard to the objects in India, UK and Singapore? 13. Question 4: if I want to look at the original drafters, which foreign jurisdiction is relevant – UK, India or Singapore? 14. The essential question therefore is whether it would be permissible for this Court, in determining the objects of s 377A for the purposes of Article 12(1) analysis, to take into account all or any of the following materials:- 15. the Parliamentary debates on the retention of s 377A in 22 and 23 October 2007; 16. any material evincing the legislative intent in enacting s 377A in Singapore in 1938; 17. any material evincing the legislative intent in enacting the Labouchere amendment in England in 1885; 18. any material evincing the legislative intent in enacting s 377 in India in 1860; and 19. any material evincing the legislative intent in enacting the Buggery Act 1533 in England in 1533. 20. The Plaintiff’s answer to the above question is Yes. This Court is permitted, by virtue of s 9A(2) of the Interpretation Act (Cap 1, 2002 Rev Ed Sing) (“Interpretation Act”), to take into account all of the materials listed above. 21. A related question would be: is this Court permitted, for the purposes of Article 12(1) analysis, to take into account “hypothetical” objects of s 377A, such as the object of reducing the incidence of HIV, where such objects were simply not borne out in any of the extrinsic materials evincing legislative intent? 22. The Plaintiff’s answer to this second question is No. This Court is expressly precluded from taking into account such hypothetical “objects” by s 9A(1) of the Interpretation Act. 23. The Plaintiff proceeds to elaborate on the above propositions. B. The purposive approach embodied by s 9A of the Interpretation Act (Cap 1, 2002 Rev Ed Sing) (“Interpretation Act”) allows this Court to take into account both the 2007 Parliamentary debates and other prior extrinsic materials which shed light on the Legislature’s intent on enacting, or retaining, s 377A.

1. 2007 Parliamentary Debates

24. S 9A(1) of the Interpretation Act provides :- In the interpretation of a provision of a written law, an interpretation that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to an interpretation that would not promote that purpose or object.

25. S9A(3)(b) provides that regard may be made, in determining the objects of a statutory provision, to :- …any explanatory statement relating to the Bill containing the provision… 26. S 9A(3) (c) provides that regard may also be madeto :- …the speech made in Parliament by a Minister on the occasion of the moving by that Minister of a motion that the Bill containing the provision be read a second time in Parliament…

27. Thus, were s 377A of the Penal Code enacted for the first time in 2007, the speech by Senior Minister of State for Home Affairs Associate Professor HoPengKee(“Assoc Prof Ho”) moving that the Penal Code (Amendment) Bill be read a second time would have been directly relevant in the determination of the objects of s 377A pursuant to s 9A(3)(c) of the Interpretation Act. S 9A(3)(b) would similarly permit taking into account the Ministry of Home Affairs (“MHA”) official statement explaining the decision to retain s 377A . 28. Neither the MHA official statement nor Assoc Prof Ho’s speech, of course, falls within ss9A(3)(b) and 9A(3)(c) respectively. The Penal Code (Amendment) Bill does not include s 377A, for the simple reason that there was no amendment made to s 377A of the Penal Code. The Plaintiff submits that the Minister’s speech is nonetheless relevant, however. S 9A(3)(d) of the Interpretation Act gives that court considerable discretion to take into account :- …any relevant material in any official record of debates in Parliament…

29. There was deliberate Parliamentary intent in 2007 to retain s 377A. This intent occurred in the context of a wide-ranging Penal Code reform process that saw many provisions amended or even repealed. Although s 377A was not first enacted in 2007, the very many official statements and speeches arguing for the retention of s 377A bears the closest nexus to the underlying legislative reasons for the continued existence of s 377A in the statute books today, the Plaintiff submits that this Court is permitted to take into account not only the MHA official statement and the speech of Assoc Prof Ho, but also the speeches of all the Members of Parliament (“MPs”) arguing for the retention of s 377A on the second reading of the Penal Code (Amendment) Bill.

2. Material relating to 1938 Singapore enactment of s 377A


30. Any legislative speeches moving for the original enactment of s 377A, as well as any official explanatory statement thereto, is directly admissible under ss 9A(3)(c) and 9A(3)(d) of the Interpretation Act. This Court may therefore have regard to any material evincing the legislative intent in first enacting s 377A in 1938, to the extent that the intent evinced by such material does not contradict the intent evinced by the 2007 Parliamentary Debates, given that the 2007 Parliamentary Debates have a closer nexus with the legislative reasons why s 377A remains in force today.

3. Materials relating to the intent of the Labouchere Amendment, s 377 and the Buggery Act 1533

31. That is not the end of the matter, however. In determining the object of s 377A, this Court need not confine itself to taking into account only material relating to the immediate legislative intent of s 377A. S 9A(3) does not provide an exhaustive list of the extrinsic materials the court may take into account, and s 9A(2) provides generally that the court may take into account any and all materials that assist in ascertaining the meaning of s 377A, in accordance with the purposive approach mandated by s 9A(1).

32. In Lee Chez Kee v Public Prosecutor, [2008] 3 SLR(R) 447 (SGCA) (“Lee Chez Kee”), a question before the Court of Appeal was “whether it is permissible to refer to the pre-existing English criminal law at the time the Indian Penal Code was enacted to aid in the latter’s interpretation” . Rajah JA’s answer was an empathic Yes. Rajah JA, in a portion of his judgment concurred by Woo J and Choo J , held that such referral was permissible where it was aimed at clarifying the interpretation of the statute in question, not to add to or substitute the words of the statute with the words of the extrinsic material given regard to :- Hence, it is not permissible to refer to the previous law on the subjects dealt with by the Code, for the purpose of adding to the provisions of the Code. However, reference to previous case law, as the Privy Council implied in Barendra Kumar, is not precluded for the purpose of throwing light on the true interpretation of the words of the statute, where the meaning is ambiguous or doubtful. This is based, in part, on the assumption that the Indian Penal Code, as innovative as it is, was nonetheless based on some part of the existing body of English law at the time of its enactment. [emphasis original]

33. Although the ratio of Lee Chez Keewas departed from in the subsequent Court of Appeal decision of Daniel Vijay s/o Katherasan v Public Prosecutor, [2010] 4 SLR 1119 (SGCA) (“Daniel Vijay”) , the Court of Appeal also took into account the prevailing English criminal law at the time of the enactment of the Indian Penal Code, if only to determine that the relevant provision in the Indian Penal Code went even further than the English common law offence . The Court of Appeal further endorsed the following proposition by the Privy Council on the general permissibility of taking into account the prevailing English criminal in interpreting a provision of the Penal Code :-

At the same time, the Privy Council indicated (and this consideration likewise applies mutatis mutandis to the provisions of the Penal Code), English criminal law could not be wholly irrelevant where the provisions of the IPC were not clear on their face (see also IbraAkanda at 359 per Khundkar J).

34. S 9A of the Interpretation Act and the cases therefore speak with one voice: regard may be made, even to materials outside of those that evince the immediate legislative intent of a statute in question, where such regard is made to clarify the object, and therefore the interpretation, of the statute in question.

35. With these authorities in mind, it is clear that the Labouchereamendment,and materials evincing the legislative intent of the Labouchere amendment are admissible for the purposes of clarifying the legislative object of s 377A. Given that s 377A was a duplicate of the Labouchere amendment, if the extrinsic materials indicate that the legislative purpose behind both the Labouchere amendment and s 377A was materially the same, this Court may hold that the enactment and subsequent 2007 retention of s 377A is a legislative reinforcement of the object underlying the Labouchere amendment.

36. This Court can also take into account materials evincing the legislative intent behind s 377 of the Indian Penal Code (in parimateriawith the predecessor to the current s 377 of the Singapore Penal Code) and the Buggery Act 1533 in determining of the objects of s 377A. If, like s 34 of the Penal Code, s 377A was intended to go further than the contemporaneous offences under English criminal law or Penal Code , the legislative intent of these contemporaneous offences would certainly be relevant given that the further strengthening of the offences under s 377A can be seen as a legislative endorsement and reinforcement of the legislative intent behind s 377 of the Indian Penal Code and the Buggery Act 1533.

37. Having established what extrinsic materials this Court is permitted to take account of, the Plaintiff now proceeds to review each of the materials seriatim. C. The evolution of s 377A from the 16th to the 21st centuries shows that s 377A remains on the statute books for the sole object of promoting a vision of society’s “morality”.

38. The Court of Appeal in Tan Eng Hong v Attorney-General, [2012] 4 SLR 476 (“Tan Eng Hong (Standing)”) thoroughly examined the legislative history of s 377A . The Plaintiff will not rehash the thorough excursus in Tan Eng Hong (Standing). Instead, the Plaintiff proposes to highlight the salient indicators of legislative intent of each of the precursors to the present s 377A of the Penal Code. 1. Buggery Act 1533

39. The first Act of the English Parliament outlawing homosexuality was the Buggery Act 1533, passed during the reign of King Henry VIII. Although this was a secular law within the province of the common law courts, its overtly religious motivations cannot be ignored. The statute was passed one year after King Henry VIII unilaterally ended papal jurisdiction over the Church of England, proclaiming himself as supreme head of the Church of England. This statute cannot be understood apart from the King’s desire to assert his Christian authority in opposition to that of the Pope and the King’s consequent zeal to police the religious devotion of the Catholics who contested his religious authority. This point is well made in Douglas E Sanders, “377 and the Unnatural Afterlife of British Colonialism in Asia” (2009) Asian Journal of Comparative Law vol 4, issue 1, article 7 (“Sanders”) :- Together with a “visitation” campaign in 1535 that trumped up tales of sexual indiscretion in the religious houses, the sodomy law made the tendentious point that the Catholic Church in England had lapsed in its adherence to divine law. Henry stepped in to police religious morals, and righteously smote the monasteries where sins like buggery had been profligate; or so the pretext ran. …

The 1534 legislation was anti-Catholic. It cannot be understood apart from the break of the English church from Rome and the confiscation of monastic properties. [emphasis added]

2. S 377 of the Indian Penal Code

40. The Court of Appeal in Tan Eng Hong (Standing) made it clear that s 377 was modelled after the buggery laws of England, holding that they were linked by an “historical umbilical cord” . The actual legislative intent behind s 377 cannot easily be discerned – as Sanders noted :- The rationale for the buggery law was apparently not debated or reconsidered in the codification process that began in the 19th century. The goals of codification were not so much a rethinking of criminal law as the restating of existing laws in an orderly, consistent and accessible manner.

41. What seems clear, however, is the fact that the Indian Penal Code made little attempt to reflect the mores of Indian society. The British drafters of the Indian Penal Code, including Thomas Macaulay were openly contemptuous of Indian morality, and the Indian Penal Code can be seen as a way for the British to project the “superiority” of English criminal law on the deficiencies of Indian morality :- Macaulay, and others in the period, had negative views of India. James Mill’s book, History of British India, published in 1817, was highly critical of Indian religion and culture. …as an employee of the East India Company Mill exercised a strong influence on the attitudes of the new class of colonial administrators, and his frequently republished History, with its utilitarian philosophical assumptions, helped to win British opinion away from the idealizing tendencies of the early orientalists such as William Jones, and paved the way for the racist attitudes towards India which became pervasive in the second half of the [19th] century. Mill’s views were echoed by a numberof writers in the period including the historian Thomas Macaulay whose remark that Indians were ‘lesser breeds without the law’ summed up the opinion of many. In 1885 he wrote of the ‘monstrous superstitions’ of Indians, and summarily condemned ancient Sanskrit texts as ‘less valuable than what may be found in the most paltry abridgements used at preparatory schools in England’. [emphasis added]

42. The High Court of Delhi in Naz Foundation v Government of NCT of Delhi, WP(C) No 7455/2001 (“Naz Foundation”) noted with approval the following statement indicating that the marginalisation of persons who engaged in sexually deviate acts were never the norm in Indian society prior to the arrival of the British :- Around the early 19th Century, you probably know that in England they frowned on homosexuality, and therefore there are historical reports that various people came to India to take advantage of its more liberal atmosphere with regard to different kinds of sexual conduct. ... As a result, in 1860 when we got the Indian Penal Code, which was drafted by Lord Macaulay, they inserted s.377 in the Indian Penal Code, which brought in the concept of “sexual offences against the order of nature”. Now in India we didn't have this concept of something being “against the order of nature”. It was essentially a Western concept which has remained over the years. Now homosexuality as such is not defined in the Indian Penal Code, and it will be a matter of great argument whether it's “against the order of nature. [emphasis added]

43. Justice Michael Kirby, Justice of the High Court of Australia, also lends support to the proposition that the mores undergirding the Indian Penal Code and other criminal codes in British colonies around the world were imposed on local populations without regard for the prevailing local customary practices (Michael Kirby AC, “The Sodomy Offence: England’s Least Lovely Criminal Law Export?” [2011] JCCL 22 (“Kirby”)) :- Same-sex activity was morally unacceptable to the British rulers and their society. According to the several codified provisions on offer, laws to criminalise and punish such activity were a uniform feature of British imperial rule. The local populations were not consulted in respect of the imposition of such laws... But in many of territories in Asia, Africa and elsewhere where the laws were imposed and enforced, there was no (or no clear) pre-existing culture or tradition that required the punishment of such offences. They were simply imposed to stamp out the “vice” and “viciousness” amongst native peoples which the British rulers found, or assumed, to be intolerable in a properly governed society. [emphasis added]

44. A similar example of the British using the tool of the criminal code to project “superior” British mores on a “deficient” Indian morality can be seen in s 209 of the Penal Code, which received authoritative interpretation by the Court of Appeal in Bachoo Mohan Singh v Public Prosecutor and another matter, [2010] 4 SLR 137 (SGCA) (“Bachoo Mohan Singh”). The British drafters’ patronising views on Indian society, which motivated their draft of the Indian Penal Code, is apparent in the following excerpt by Rajah JA :- Here, I would also reiterate that s 209 was introduced in India by the British colonialists for reasons which could today be considered anachronistic and, I dare say, entirely unacceptable because of the patronising assumptions made about Asian morality. This has been mentioned in my judgment in BMS (No 3) ([3] supra) at [78] and I can do no better than to repeat my earlier observations here… [emphasis added]

45. Thus, seen in its proper context, the legislative intent behind s 377 was to project a particular vision of Victorian morality onto an Indian society that did not contain such a vision at the material time. Furthermore, given the fidelity of the text of s 377 to the contemporaneous buggery laws of England, it is also apparent that this vision of Victorian morality is particularly motivated by 19th century Biblical notions of propriety.

3. LabouchereAmendment

46. The legislative purpose behind the Labouchere Amendment, which was never debated on in the UK Parliament, was not entirely clear. The Labouchere amendment therefore provides little assistance in this Court’s determination of the objects of s 377A.

4. 1938 enactment of s 377A in the Straits Settlements Penal Code

47. The Court of Appeal in Tan Eng Hong (Standing) provides a cogent summary of the legislative object behind the original enactment of s 377A, which is in parimateriawith the Labouchere Amendment :- Prior to the enactment of s 377A of the 1936 Penal Code, the law making “gross indecency” between male homosexuals an offence only targeted public conduct, and Mr Howell’s comment on how small the chances of detection were was probably stated in this context. As private acts were largely out of the law’s reach, Mr Howell stated that the Legislature desired to “strengthen the law” (see Proceedings of the Legislative Council of the Straits Settlements (13 June 1938) at p B49) by extending it to reach the private domain. Section 377A of the 1936 Penal Code thus expressly provided that acts of “gross indecency”, whether committed “in public or private”, were equally to be treated as offences. It appears from this that the enactment of s 377A of the 1936 Penal Code was a calculated move to criminalise private sexual conduct between males. [emphasis original]

5. 2007 retention of s 377A of the Singapore Penal Code

48. We turn finally to the 2007 retention of s 377A of the Singapore Penal Code. The official statement by the MHA on its reasons for the recommended retention of the statute goes as follows :- 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. [emphasis added]

49. The themes of “conservative society”, “majority will” and “society’s morality” were parroted by all 12 of the MPs who gave Parliamentary speeches in support of the retention of s 377A .

50. There are two further points worth noting.

51. First, none save one (Professor Thio Li-ann, a Nominated MP (“NMP”) ) of the MPs suggested any rationale other than acceding to the wishes of Singapore’s “conservative majority” for the continued retention of s 377A. There was certainly no suggestion among any of the elected MPs that s 377A was needed to mitigate and reduce the spread of HIV, or to reduce the incidences of non-consensual, underage or public same-sexual conduct. Indeed, Prime Minister (“PM”) Lee’s “promise” that s 377A would not be “proactively” enforced goes entirely against any suggestion that the Legislature seriously thought that s 377A was required to advance any legitimate social object such as reducing the spread of HIV.

52. Second, PM Lee noted that it was not the case that a majority of Singaporeans wanted s 377A to be retained, but simply that a majority of Singaporeans were indifferent, or were merely supportive of any status quo :- For the majority of Singaporeans - this is something that they are aware of but it is not the top of their consciousness - including, I would say, amongst them a significant number of gays themselves. But, also, I would say, amongst the Chinese-speaking community in Singapore. Their attitude is: live and let live. So, even in this debate in these two days, Members would have noticed that there have been very few speeches made in Parliament in Mandarin on this subject. I know Mr Baey Yam Keng made one this afternoon, but Mr Low ThiaKhiang did not. It reflects the focus of the Chinese-speaking ground and their mindsets. So, for the majority of Singaporeans, their attitude is a pragmatic one. We live and let live. [emphasis added]

6. Taking into account extrinsic materials from the 16th to the 21st centuries, the legislative purpose behind s 377A is the object of acceding to “society’s” or, more accurately, a particular group’s vision of morality.

53. Having gone through an excursus of the extrinsic materials from the 16th to the 21st centuries, some broad themes emerge. First, the object of s 377A is to advance society’s vision of “morality”. Second and more precisely, it may be misleading to speak of the object as advancing “society’s” morality – as we can see from the s 377 enactment in the Indian Penal Code as well as PM Lee’s comment, s 377A’s object can more accurately be described as advancing a particular group’s vision of morality, which may not necessarily represent that of the majority of society. Third, there is simply no suggestion in any of the extrinsic materials that s 377A was needed to advance “legitimate” objects such as reducing the spread of HIV, or reducing non-consensual, underage or public sexual conduct. HIV was non-existent at the time of the Labouchere Amendment or the 1938 enactment of s 377A in the Straits Settlements Penal Code, and therefore could not possibly have been in the contemplation of the legislators when they first assented s 377A’s enactment. The fact that none of the elected MPs referred to the HIV problem during the 2007 Parliamentary debates, when HIV was rife, further reinforces the fact that s 377A promotes no other social object than that of advancing a particular vision of “morality”.

D. The purposive approach prohibits this Court from taking into account hypothetical “objects” such as reducing HIV, or the incidence of underage and non-consensual sexual intercourse.

54. The pertinent question under this heading is this: can this Court, notwithstanding the virtual lack of any legislative expression of the need to advance objects such as reducing HIV through retaining s 377A, nevertheless have regard to these hypothetical “objects” in undergoing Article 12(1) scrutiny?

55. S 9A(1) of the Interpretation Act clearly prohibits this Court from doing so. The provision states :- In the interpretation of a provision of a written law, an interpretation that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to an interpretation that would not promote that purpose or object. [emphasis added]

56. Given that it was never within the legislators’ contemplation that s 377A was needed to reduce the incidence of HIV, or to reduce the incidences of non-consensual, underage or public sexual conduct, if this Court were to give regard to such a hypothetical “object” in the process of Article 12(1) scrutiny, this Court would do precisely that which is disallowed by s 9A(1) of the Interpretation Act: preferring an interpretation of s 377A that does not promote the purpose or object of s 377A.

57. The Court of Appeal case of AAG v Estate of AAH, deceased, [2010] 1 SLR 769 (SGCA) (“AAG”) shows that a court must, in the process of statutory interpretation, look assiduously to the original legislative object of a statute, no matter that the object may, in light of later societal developments, seem to be archaic or outdated. In that case, the question was whether the terms “son” and “daughter” in s 3(1) of the Inheritance (Family Provision) Act, (Cap 138, 1985 Rev Ed Sing) included illegitimate children. In light of Parliamentary debates indicating clearly that the legislators did not contemplate “son” and “daughter” to include illegitimate children, the Court of Appeal held that it had to hold that the terms “son” and “daughter” did not include illegitimate children :- We are further fortified in this conclusion by what was stated by the Minister in Parliament at the Second Reading of the Bill (see [12] above), which eventually became the Act. We would reiterate that by the Minister stating that Singapore was adopting the IFP (UK) Act 1938 because it had worked well in England, he must necessarily mean the scheme of things under the Act as interpreted and applied by the courts there. That was Parliamentary intention, and under s 9A of the Interpretation Act, we are obliged to give effect to such intention.

58. This was despite the fact that “at the time the Act was enacted the equivalent to what is now s 68 of the Women’s Charter had already obliged a natural parent to maintain his or her child” , and that “Parliament has…through various amendments to the Women’s Charter, reduced the incidence of legitimacy” .

59. The principle that a court cannot adopt an interpretation of a written law that was not consonant with its legislative object was similarly brought out in Constitutional Reference No 1 of 1995, [1995] 1 SLR(R) 803 (SGCT) (“Constitutional Reference”). There, the Constitution of the Republic of Singapore Tribunal (“Constitutional Tribunal”) had to determine whether the then Article 22H(1) of the Constitution permitted the President to veto a bill seeking to amend a constitutional provision expressed in the then Article 5(2A) of the Constitution. The Constitutional Tribunal answered this question in the negative, significantly on the ground that it was never within Parliament’s intention at the enactment of Articles 5(2A) and 22H(1) that the President would be able to withhold assent to a bill amending a provision expressed in Article 5(2A) :- As such, there was no interregnum contemplated by Parliament that, if Art 5(2A) was suspended from operation, the President would under Art 22H(1) assume the role of the electorate under Art 5(2A).

60. Applying the principles in Constitutional Reference and AAG to our case, this Court is not permitted to take into account “hypothetical” objects and purposes. Any argument by the Defendant that s 377A bears a rational relation to a “hypothetical” object of reducing the incidence of HIV, or incidences of non-consensual, public and underage sexual conduct, must be strenuously rejected. II. DOES S 377A SATISFY THE “INTELLIGIBLE DIFFERENTIA” STANDARD DEMANDED BY ARTICLE 12(1) OF THE CONSTITUTION (1985 REV ED SING, 1999 REPRINT) (“CONSTITUTION”)?

A. Summary of this section

61. This Court posed the following questions:-

62. What are the possible intelligible differentia that we can rely on that indicate that s 377A infringes Article 12?

63. Question 5: If anyone wants to rely upon intelligible differentia, attach relevant articles.

64. Question 6: Why are male homosexual acts and not female homosexual acts criminalised? Is it because of genitalia or is it because of the spread of disease? Has this been established medically [the increased chance of spread of disease for male-to-male intimacy]?

65. Question 7: In relation to the criminalisation of male homosexual acts and not female homosexual acts: What is the intelligible differentia here? Why male and not female?

66. Question 8: How is such evidence relevant [referring to evidence presented in response to question #7]?

67. The essential question therefore is this: is the differential treatment in s 377A founded on an intelligible differentia? In particular, is there an intelligible differentia between male and female homosexual acts, such that it is constitutionally permissible for only the former but not the latter to be criminalised? The Plaintiff’s answer to both questions is No. There are two reasons why this is so. First, the patent vagueness in the language of s 377A makes it virtually impossible, in many cases, for an individual to be certain whether he is within our outside the class that s 377A seeks to differentiate. Second, although there is some difference between male homosexuals as a class, and female homosexuals as a class, such difference – being entirely unrelated to the objects of s 377A – is not sufficient to satisfy the “intelligible differentia” test required by Article 12(1) of the Constitution.

B. S 377A fails the “intelligible differentia” standard because the vagueness in the language of the statute makes it virtually impossible, in many cases, to determine whether an individual falls within the differentiated class or outside it.

1. The “intelligible differentia” requirement is not met if the differentia the statute provides for is patently vague and uncertain.

68. Article 12(1) of the Constitution guarantees to the individual the right to be treated no differently from another individual in the same circumstances. This principle is stated most eloquently by Lord Diplock in Ong Ah Chuan and another v Public Prosecutor, [1979-1980] SLR(R) 710 (SGPC) (“Ong Ah Chuan”) :- All criminal law involves the classification of individuals for the purposes of punishment, since it affects those individuals only in relation to whom there exists a defined set of circumstances – the conduct and, where relevant, the state of mind that constitute the ingredients of an offence. Equality before the law and equal protection of the law require that like should be compared with like. What Art 12(1) of the Constitution assures to the individual is the right to equal treatment with other individuals in similar circumstances. It prohibits laws which require that some individuals within a single class should be treated by way of punishment more harshly than others; it does not forbid discrimination in punitive treatment between one class of individuals and another class in relation to which there is some difference in the circumstances of the offence that has been committed. [emphasis added]


69. In determining whether a statute complies with Article 12(1) of the Constitution, Singapore courts have adopted a two-part test: first, is the differential treatment founded on an intelligible differentia? Second, does the differentia bear a rational relation with the social object sought to be achieved by the law in question? (Yong Vui Kong v Public Prosecutor and another matter, [2010] 3 SLR 489 (SGCA) (“Yong Vui Kong”) ). In this section, we are concerned with the first stage of the scrutiny.

70. At first blush, the “intelligible differentia” requirement seems deceptively simple, and astoundingly easy to satisfy. Our Court of Appeal in Public Prosecutor v Taw Cheng Kong, [1998] 2 SLR(R) 489 (SGCA) (“Taw Cheng Kong (CA)”) held that there exists an intelligible differentia as long as the differentia “distinguishes between persons that are grouped together from others left out of the group” . Our High Court in Taw Cheng Kong v Public Prosecutor, [1998] 1 SLR(R) (SGHC) (“Taw Cheng Kong (HC)”) gave more meat to this explanation, holding that exists an intelligible differentia if there is a “consistent means of identifying the persons discriminated against, for example, gender, age, race, religion, seniority of professional qualification or area of residence” .

71. On its face, therefore, it appears that the “intelligible differentia” requirement will be met as long as there is some difference in the circumstances of the two classes of individuals sought to be differentiated, and some similarity among the individuals within the class the law seeks to differentiate. The difference would supply the material distinction “between persons that are grouped together from others left out of the group. The similarity would supply the “consistent means of identifying the persons discriminated against”.

72. On this extremely permissive reading of the “intelligible differentia” requirement, a statute will fail this stage of the Article 12(1) scrutiny only if the differentia it purports to provide for is so patently vague that an individual will find it close to impossible to determine whether he is within, or beyond, the differentiated class.

73. Thus, in Namit Sharma v Union of India, Writ Petition (Civil) No 210 of 2012 (Supreme Court of India) (“Namit Sharma”), the Supreme Court of India had to decide whether ss12(6) and 15(6) of the Right to Information Act 2005 was consistent with the equality guarantee of Constitution of India. Ss 12(6) and 15(6) provided that Information Commissioners shall not “hold any other office of profit… or carrying on any business or pursuing any profession”. The Supreme Court of India held that the differentia the law purported to provide for were simply so patently vague that the “intelligible differentia” requirement was not met :- According to this provision, a person to be appointed to these posts ought not to have been carrying on any business or pursuing any profession. It is difficult to say what the person eligible under the provision should be doing and for what period. The section does not specify any such period. Normally, the persons would fall under one or the other unacceptable categories. To put it differently, by necessary implication, it excludes practically all classes while not specifying as to which class of persons is eligible to be appointed to that post. The exclusion is too vague, while inclusion is uncertain. It creates a situation of confusion which could not have been the intent of law... There is no intelligible differentia to support such classification. Which class is intended to be protected and is to be made exclusively eligible for appointment in terms of Sections 12(5) and (6) is something that is not understandable [emphasis added]

74. The Plaintiff submits that, even under this most permissive conceptualisation of the “intelligible differentia” test, s 377A does not pass muster. This is because the term “gross indecency” is patently vague and uncertain. 2. Judicial interpretation does not cure the ambiguity of the term “gross indecency”.

75. The judicial interpretation and application of gross indecency has varied significantly, across jurisdictions and over time. These divergences have been particularly pronounced in relation to whether two or more consenting parties are required to make out the offence, the need for a physical act, the application of the offence to women, and the appropriate standard of proof. The very different approaches taken to this question reflect the instability of “gross indecency” as a legal term, and the difficulties inherent to defining which acts should constitute the offence.

76. A number of inconsistencies have emerged in the way gross indecency is defined and applied in various jurisdictions around the world. The first of these concerns whether gross indecency can encompass acts performed “against” rather than “with” another person (i.e. whether two or more consenting parties are required). In the English case law, the route to answering this question has been tortuous. One line of authorities preferred the more expansive definition of gross indecency that could encompass acts “against” others.

77. For example, in R v Hall, [1964] 1 QB 273 (EWCCA) (“Hall”),Lord Parker CJ found that the meaning of “with another man” in the relevant gross indecency provision (section 13 of the Sexual Offences Act 1956)included “directed towards” or “against”. Thus, a person could be convicted of gross indecency in the absence of another consenting party. In R v Jones, [1896] 1 Q.B. 4 (EWCCA) (“Jones”)Lord Russell of Killowen CJ held that there was no requirement that “both offenders should be before the court before there can be a conviction for this offence.” The Court of Criminal Appeal followed these decisions in R v Pearce, [1951] 1 All E.R. 493 (EWCCA) (“Pearce”), findingthat there is no requirement that somebody accused of indecency has acted in concert with another .

78. This interpretation of gross indecency was unequivocally rejected by the English Court of Appeal in R v Preece, [1977] QB 370 (EWCCA) (“Preece”), a case involving the conviction for indecency of two men caught watching each other masturbate in a public toilet. The appeal centred on the trial judge’s direction to the jury that “it is sufficient to establish that the first man, the masturbator, committed an act of gross indecency with another man even though the other man, the spectator, did not consent to or approve of it”. Delivering the judgment of the court, Scarman LJ found that “the complete offence requires the participation, the cooperation, of two men”.

79. This was consistent with R v Hornby and People, (1946) 32 Cr. App. R. 1 (EWCCA) (“Hornby”)in which Lynskey J had overturned the conviction of the respondents on the basis that the jury had not been directed that “they had to find that the two men were acting in concert—that they were each committing an act, or being a party to an act, of gross indecency the one with the other”. A similar requirement appears to have been accepted by the same court in R v Hunt, [1950] 2 All ER 291 (EWCCA) (“Hunt”) and by Humphreys J in Pearce.

80. The High Court of Singapore adopted the former approach in Ng Huat v Public Prosecutor, [1995] 2 SLR(R) 66 (SGHC) (“Ng Huat”). In that case the court rejected the appellant’s argument that the trial judge had erred in law by ruling that consent was not an element of section 377A. Yong Pung How CJ reasoned that Preeceshould be distinguished because it was subsequent to the introduction of a statutory defence to gross indecency for private, consenting homosexual acts (Section 1 of the Sexual Offences Act 1956) which did not exist at the time section 377A was adopted in Singapore.

81. However, the High Court’s specific reasoning for not adopting the English Court of Appeal’s approach in Preecehas added to the confusion of how gross indecency should be defined.There is nothing to suggest that the new statutory defence referred to by Yong Pung How CJ had any bearing at all on the Court of Appeal’s decision: Scarman LJ made no reference to it; contrary to the Prosecution’s argument in NgHuatthere would have been no inconsistency between a finding that consent was not an element of gross indecency for public acts and the existence of the new defence for consensual private acts.

82. These differences in interpretation are significant. As Scarman LJ noted in Preece, the question of which approach a court prefers has important implications for effective by-standers :-

To construe the section so that the complete offence could be committed even though the other man did not consent could lead to the embarrassment of, and injustice to, innocent men. For example, two men happen to be close to each other in a public lavatory: one, the defendant, masturbates in the presence of the other, intending that the other should watch him since it is this that gives him sexual satisfaction: the other, who is not charged, sees him and is disgusted. The act of indecency was 'directed towards' him: upon Lord Parker CJ's construction of the section, the first man will be properly charged with committing an act of gross indecency with the other, who will be named in the indictment, though not charged, and is innocent of any indecency.

83. The type of acts which can constitute “gross indecency” has also varied widely across jurisdictions. In R v. Captain Douglas Marr, [1946] 1 MLJ 77 (“Marr”), a Singaporean naval officer was convicted of gross indecency solely on the basis that an Indian man’s shirt had been found in his room. In contrast to these cases where acts merely suggestive of homosexuality appeared to suffice, the High Court of Singapore has insisted that a higher threshold of acts is required, which must be proven beyond reasonable doubt.

84. These divergences in the interpretation of gross indecency are a reflection of the inherent difficulties in defining the term. For example, in Ng Huatthe High Court of Singapore stated that the meaning of gross indecency in section 377A “must depend on whether in the circumstances, and the customs and morals of our times, it would be considered grossly indecent by any right-thinking member of the public”. Yong Pung How CJ made clear that the scope of indecency had to assessed by community standards, as the “court does not sit to impose its own moral standards or precepts, but to enforce the morals of the general public”.

85. This is a highly uncertain definition. An illustration of how ambiguous the rule proves to be in practice can be found in the same case: whereas the High Court held that there was “no doubt” that any right-thinking member of the public would consider the touching of a patient’s penis, chest, nipples and buttocks to be grossly indecent, the trial judge had previously ordered the removal from the charge of any references to the touching of the chest, nipples and buttocks on the basis that these acts were not grossly indecent.

86. The uncertain scope of gross indecency is indicated by the fact a number of legislatures have already attempted to clarify its meaning via legislative amendment. For example, the Tanzanian Penal Code had to be amended in 1998 to clarify that gross indecency encompassed any act which "falls short of actual intercourse and may include masturbation and indecent behaviour without any physical contact."

87. The ambiguity inherent to the term “gross indecency” is problematic for a number of reasons. First, it has led to the considerable difference in judicial interpretation noted above and the consequent uncertainty of its application. Second, its vague meaning is open to a particularly broad category of acts because the case law suggests that physical contact is not even required. In Hornby,the Court of Criminal Appeal held that an accused need not make physical contact with anyone to be convicted of gross indecency. In that case, the two accused had simply been found in a state of undress. This was later followed in Hunt and Preece.

88. Finally, the High Court of Singapore has already recognised the dangers of a poorly defined gross indecency offence to innocent bystanders and victims. According to Yong Pung How CJ, the offence must be “understood and enforced on a clear and unambiguous basis” to ensure that alleged “victims” of grossly indecent acts - those parties who never consented to the acts in question - are not also charged with the offence. As the Chief Justice conceded, this outcome would certainly be a “travest[y] of justice” which could be avoided only by using a clear standard for what constitutes gross indecency. But as Yong Pung How CJ concedes, there are still “varying degrees of gross indecency” in the community standards test adopted by the High Court; this ambiguity prevents any certainty of application and exposes all the parties caught up in the proceedings to serious risk of injustice.

89. The foreign case law on gross indecency provisions points to two conclusions: first, there are significant differences in the way this offence is understood across different jurisdictions and over time; secondly, these differences reflect the inherent ambiguity of this particular offence and the difficulty in proscribing acts by reference to mutable community standards and without any requirement for physical contact between two parties. The result is not just uncertainty in the courts as to what gross indecency means; the accused and those parties innocently caught up in proceedings are also exposed to the risk of injustice.

3. A fundamental constitutional principle of the common law holds that individuals can be deprived of liberty only by clear and unambiguous laws.

90. The common law presumption is that a person is free to do anything which is not expressly forbidden. The rights to use one's body as one wishes and to associate with others as one wishes save as proscribed by law are therefore fundamental freedoms.

91. Freedom from unwanted restraint save as specified by law has been part of the common law since Magna Carta in 1215, which provided that no person should be imprisoned or outlawed or deprived of standing in any other way except by the law of the land. It is the duty of courts to uphold this classic statement of the rule of law: per Lord Donaldson MR in R v SSHD ex p Muboyayi [1992] QB 244 (EWCA) (“Muboyayi”) .

92. In order for a penalty (e.g. imprisonment) or deprivation of standing to be imposed by the law of the land, the rule imposing such a detriment must have the qualities of law, in the sense of being sufficiently certain, knowable and predictable in its application to enable persons to moderate their conduct according to it. These too are long-established principles of the common law.

93. As to the issue of certainty, this is important to enable a would-be law abiding citizen to be clear enough as to what the law means. Moreover, for law to serve its function of enabling those subject to it to know the limits of permitted behaviour, it is not enough for the text of the law to be known in the sense of having been promulgated in a statute. It must be sufficiently certain that a citizen can foresee how the court will apply it, and arrange their behaviour and their affairs accordingly (Black-Clawson International Ltd v PapierwerkeWaldhof-Aschaffenberg AG [1975] AC 591 (UKHL) (“Black-Clawson”) :-

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 consequences that will flow from it...

94. In Fothergill v Monarch Airlines Ltd [1981] AC 251 (UKHL) (“Fothergill”) Lord Diplock observed that legal certainty :- demands that the rules by which the citizen is to be bound should be ascertainable by him (or, more realistically, by a competent lawyer advising him).

95. Drawing these threads together, criminal law must, in particular be expressed in a form which citizens can readily understand. There should be no ambiguity: people should not be subjected by law to any detriment or punishment unless this is imposed by clear.

96. The fundamental common law principles above have been endorsed by Chan J (as he then was) in Cheong SeokLeng v Public Prosecutor, [1988] 1 SLR(R) 530 (SGHC) (“Cheong SeokLeng”) :-

… under our legal system, a person is at liberty to do as he wishes except that which is prohibited by law or which encroaches upon the rights of others. It is therefore only reasonable that this liberty should not be indirectly curtailed by laws and regulations unknown or inaccessible to him.

97. In conclusion, s 377A fails even the most permissive version of the “intelligible differentia” requirement, because the inherent vagueness of the language of the statute makes it virtually impossible, in too many cases, to determine if a particular individual falls within or outside of the class of individuals the statute purports to differentiate.

B. S 377A fails the “intelligible differentia” requirement because there is absolutely no rational justification, in accordance with the putative object of s 377A, for differentiating between males who commit acts of gross indecency with other males, from females who commit acts of gross indecency with other females.

1. The “intelligible differentia” requirement is not satisfied merely by the existence of some difference between those in a differentiated class and those outside it.

98. The conceptualisation of the “intelligible differentia” test presented at [] above is an extremely permissive one. In this section, the Plaintiff submits that – in accordance with principle and Indian jurisprudence – the “intelligible differentia” poses a more exacting requirement.

99. It cannot be right on principle to hold that the “intelligible differentia” requirement is met as long as there exists some difference between the individuals in the differentiated class and those outside it, even if that difference had absolutely no bearing on the object the statute purports to achieve. Such a ruling would mean that a law that purely and arbitrarily discriminates against an individual A would pass the “intelligible differentia” test, simply because, by definition, all persons outside the differentiated class would, by virtue of being “not A”, pass the low “some difference” bar. Such a ruling would mean that the “intelligible differentia” requirement would be passed in virtually all discriminatory laws, rendering the requirement virtually otiose.

100. Furthermore, precedents from the Supreme Court of India endorses the Plaintiff’s proposition that the “intelligible differentia” requirement is not satisfied merely by the existence of some distinction between the classes the statute seeks to differentiate. It is appropriate here to refer to Indian jurisprudence, given that the definition of “intelligible differentia” endorsed in Taw Cheng Kong (CA) was itself culled from principles developed in the Indian courts (see Malaysian Bar and another v Government of Malaysia, [1987] 2 MLJ 165 (Supreme Court of Malaysia) (“Malaysian Bar”) , where the Mohammed Azmi SCJ expressed that the principles of reasonable classification, including the principle of intelligible differentia, was obtained from Indian jurisprudence)

101. A good illustrator of this principle is DS Reddy v Chancellor, Osmania University and others, 1967 SCR (2) 214 (Supreme Court of India) (“Reddy”). Under the existing law prior to the enactment of the challenged statute, the Vice Chancellor could only be removed from office by an order of the Chancellor passed on the ground of misbehaviour or incapacity after enquiry by a person who was or had been a Judge of the High Court or Supreme Court and after the Vice-Chancellor had been given an opportunity of making his representation against such removal. A statute was then passed, providing that the person then holding the office of Vice-Chancellor could only hold that office until a new Vice-Chancellor was appointed, and that such new appointment must be made within 90 days of the commencement of the statute whereupon the old Vice-Chancellor would cease to hold office. The Vice-Chancellor challenged the statute, arguing that it violated his right to equal protection under the Indian Constitution.

102. In a unanimous judgment, the Supreme Court of India allowed the Vice-Chancellor’s petition. One of the questions the Court asked was whether there was sufficient difference in the circumstances of the Vice-Chancellor, and those of all future Vice-Chancellors, such that the “intelligible differentia” requirement was met. The Court answered this in a negative. The Court unequivocally held that, although there of course existed some difference between the then Vice-Chancellor and all future Vice-Chancellors (by virtue of all future Vice-Chancellors by definition not being the then Vice-Chancellor), this difference was nevertheless insufficient to satisfy the “intelligible differentia” requirement :-

Even assuming that the classification of these two types of persons as coming under two different groups can be made nevertheless, it is essential that such a classification must be founded on an intelligible differentia which distinguishes the appellant from the Vice-Chancellor appointed under the Act. We are not able to find any such intelligible differentia on the basis of which the classification can be justified… these are not such vital or crucial factors which will justify treating the appellant as a class by himself, because the powers and duties of a Vice- Chancellor, either under 'the Act, prior to the amendment, or under the Act, after amendment, continue to be the same. [emphasis added]

103. In essence, the Court held that, even though there existed, on its face, a difference between the present Vice Chancellor and all future Vice Chancellors (by virtue of the latter by definition not being the former), this was not a sufficiently material difference to discharge the “intelligible differentia” requirement. Such a material difference may occur where, for instance, there is a distinction between the “powers and duties” of a Vice-Chancellor before and after the challenged statute. Hence, the statute was not founded on an intelligible differentia.

104. Another relevant case is SuneelJatleyetc v State of Haryhanaetc, 1985 SCR(1) 272 (Supreme Court of India) (“Jatley”). In that case, the petitioners challenged a decision by a University to reserve, for admission to its medical course, 25 seats for students who have received education from Class 1 to 8 from a Rural School (“Rural School Students”). There was identical syllabus and examination-evaluation for students in Class 1 to 8 in both Rural and Urban schools. Like students who spent Class 1 to 8 in Urban schools (“Urban School Students”), the Rural School Students would also have taken further education for 4 years prior to seeking admission to the medical faculty.

105. The Supreme Court of India held that there was no intelligible differentia between the Rural School Students and the Urban School Students, although the two classes are obviously distinct. The Court held that, for the purpose and object of the reservation (viz to ameliorate any educational disadvantage suffered by Rural School Students), both classes of students were so similarly situated that the “intelligible differentia” requirement could not be satisfied :-

The question then is: can the previous differentiation, if there by any, provided a rational basis for classification. The answer obviously is in the negative. The knowledge acquired in the years spent from Class 1 to Class VIII is of a general nature exposing the student to reading, writing, understanding simple arithmetics, general knowledge of History, Geography and introductory mathematics. The introductory knowledge of these subjects could hardly be said to equip a student for admission to medical college. The education imparted in Class IX and X is little more than introductory. In these classes, the student is being prepared for deeper study. The selection of specialised subjects has to be made in Classes XI and XII and in respect of education in Classes IX to XII, all students being educated in all schools are similarly situated similarly circumstance and similarly placed with no differentiation. The earlier handicap of education in Classes 1 to 8, if there be any, becomes wholly irrelevant and of no consequence and therefore, cannot provide an intelligible differentia which distinguishes persons say students seeking admission being grouped together as having been educated in common rural schools from those left out namely the rest. It would therefore, follow as a corollary that classification based on students coming from common rural schools meaning thereby educated up to 1 to 8th standard in common rural schools vis-a-vis students educated in urban schools from Ist to 8th standard would not provide intelligible differentia for founding a classification thereon The classification in such a situation will be wholly arbitrary and irrational and therefore the reservation based on such classification would be constitutionally invalid. [emphasis added]

106. The Plaintiff urges this Court to endorse the principle underlying these two precedents – that the “intelligible differentia” test requires not merely anydistinction between the two differentiated classes, but a material distinction that has a rational basis on the putative object of the statute. By the approach recommended by the Plaintiff, the hypotheticalusage of the length of a drug trafficker’s hair as a differentia in the imposition of the mandatory death penalty posed in Yong Vui Kong would fail not only the “rational relation” limb, but also the “intelligible differentia” limb of the Article 12(1) scrutiny. In relation to the social object of reducing the evils of drug trafficking, there is no material distinction in the circumstances of the long or short-haired drug trafficker, and therefore there exists no intelligible differentia between the two traffickers notwithstanding that there does existsome distinction between them.

107. The Plaintiff acknowledges that, given the relevance of the statute’s object in determining the existence of an intelligible differentia under the Plaintiff’s recommended touchstone, the “intelligible differentia” limb may overlap with the “rational relation” limb. Indeed, as both Reddy and Jatleydemonstrate, a failure of the “intelligible differentia” test often comes together with a failure of the “rational relation” test.

108. The two limbs would however nevertheless be separately significant due to their separate emphases. The “intelligible differentia” limb would more directly apply where a court seeks to analyse whether the differential treatment between two classes of individuals is justified, in accordance with the Ong Ah Chuanexhortation that “like should be compared with like” . The “rational relation” limb, in contrast, tests whether the treatment of a particular class in a particular manner is, at the very least, rationally associated with a purpose that the statute seeks to achieve. The “rational relation” test therefore is less concerned with comparison between classes of individuals, focusing more on the minimum level of rationality that legislative policy must achieve.

109. In summary, the Plaintiff submits that an intelligible differentia arises only where the circumstances between classes of individuals are sufficiently different such that the mischief of the statute covers one, but not the other, class. Where the mischief covers both classes, there is no intelligible differentia between the classes even in the presence of some difference between the classes. 2. Although males who engage in grossly indecent acts with other males are distinct from females who do so with other females by gender, this is an insufficient distinction, in the light of the putative objects of s 377A, to satisfy the “intelligible differentia”.

110. The Plaintiff now proceeds to analyse whether there is sufficient distinction between male and female homosexuals amounting to an intelligible differentia between the two individuals.

111. First, this Court needs to determine the mischief, or object, s 377A intends to cover. The Plaintiff has gone through this in detail, and will here summarise the main points:-

112. S 377A is intended to advance a particular vision of society’s morality. To be precise, the morality to be advanced is the notion that any intimate relationship besides that between members of the opposite gender is immoral and diffusely harmful to society;

113. The object of s 377A is not merely to outlaw acts of sexual intercourse that contravene the “morality” listed in (a) above. The broad and inherently uncertain wording of “gross indecency” shows legislative intent that the provisions covers acts that are far broader than sexual intercourse;

114. S 377A is not, and was never, intended to achieve any other object than that listed in (a) above. In particular, the object of s 377A is not to mitigate or reduce the incidence of HIV, or to reduce the incidences of underage, non-consensual or public sexual conduct. The lack of such objects is confirmed by the “promise” by PM Lee that s 377A would not be “proactively” enforced. With respect, if the Legislators really took seriously the notion that s 377A was needed to reduce HIV, not “proactively” enforcing s 377A would entirely undermine this “object”.

115. It is clear that there existssome difference between males who commit acts of gross indecency, and females who do so. The difference lies in the gender of the individuals within the two classes s 377A seeks to differentiate. The Plaintiff has, however, established that the existence of some difference between classes does not necessarily suffice to meet the “intelligible differentia” requirement. The essential question is whether the difference in gender is a relevant difference, in light of the objects that s 377A putatively seeks to achieve.

116. The fact that male homosexuals statistically suffer higher rates of HIV than female homosexuals cannot supply the relevance of the differentiation in gender. S 9A(1) of the Interpretation Act prohibits this Court from having regard to an “object” that does not exist. Thus, this Court cannot deem the difference in HIV rates as a relevant difference justifying differential treatment between male and female homosexuals, given that the reduction of HIV was never in the contemplation of the Legislature at the time of the enactment and retention of s 377A.

117. The difference in genitalia between males and females similarly cannot supply the relevance of the differentiation in gender. The fact that males are capable or penetration, unlike females, is wholly irrelevant in the light of the ambit of s 377A, which on its faces criminalises far more acts than the act of sexual intercourse. This fact is also wholly irrelevant in light of the object of s 377A, which is to impose a morality that proclaims that any intimate relationship between individuals who are not members of the opposite gender is immoral.

118. One possible way to justify differential treatment is if the Defendant can show that the act two men kissing poses a proportionally or even broadly greater harm to society than that of two women kissing. Our Court of Appeal in Yong Vui Kong upheld the constitutional validity of the mandatory death penalty for drug traffickers of more than 15g of diamorphine partly on the ground that persons who traffic more than 15g of drugs pose greater harm to society than persons who traffic less :-

We would also add that the quantity of addictive drugs trafficked is not only broadly proportionate to the quantity of addictive drugs brought onto the illicit market, but also broadly proportionate to the scale of operations of the drug dealer and, hence, broadly proportionate to the harm likely to be posed to society by the offender’s crime.

119. Another way in which differential treatment may be justified is if the Defendant can show that the two men who kiss are more morally blameworthy, and hence more deserving of legislative disapprobation, than the two women who kiss: RamalingamRavinthran v Attorney-General, [2012] 2 SLR 49 (SGCA) (“RamalingamRavinthran”) .

120. It is immediately clear that no rational person would a man kissing another man as, even broadly speaking, more morally blameworthy or harmful to Singapore, than a woman kissing another woman.

121. At the very highest, the Defendant may possibly show that society finds male homosexuality more disgusting, or more offensive, than female homosexuality. Yet it does not therefore follow male homosexuals are therefore different from female homosexuals in a materially significantmanner justifying differential treatment. The Plaintiff reminds this Court that mere majoritarian ipse dixit cannot in and of itself supply the constitutionality of a statute – such a touchstone would be no different from that advocated by MP Indranee Rajah cautioned against in ( See Plaintiff’s Main Submissions at [15-[16] ]

122. In sum, the differentiation between male and female homosexuals, although founded on some difference, is not founded upon sufficient difference that amounts to an intelligible differentia. For the purposes and objects of s 377A, male and female homosexuals are placed precisely in the same circumstances. The mischief within the contemplation of the Legislators in enacting and retaining s 377A covers both male homosexuals and female homosexuals. Criminalising male, and not female, homosexuals, is therefore a gross breach of the Article 12(1) guarantee that “like should be compared with like”

III. DOES S 377A, BY CRIMINALISING MALES WITHOUT CRIMINALISING FEMALES, SATISFY THE “RATIONAL RELATION” STANDARD DEMANDED BY ARTICLE 12(1)?


123. The second limb of the Article 12(1) scrutiny is discussed in detail in Part IIB-G of the Plaintiff’s Written Submissions. In this section, the Plaintiff seeks only to remind this Court of a few salient points (all of which are elaborated in full in the Plaintiff’s Written Submissions):-

124. The only relevant object this Court can take into account in the “rational relation” analysis is the object of advancing society’s “morality”. Taking into account any other “hypothetical” objects will result in this Court contravening the purposive approach mandated by s 9A(1) of the Interpretation Act.

125. The proposition that “homosexuality is immoral” is not incontrovertible, therefore the social object of “advancing society’s morality” is simply a normatively unsound one. This is substantiated by the fact that female homosexuals have ceased to be criminalised with the repeal of the old s 377 of the Penal Code.

126. This Court is not permitted, by virtue of s 9A(1) of the Interpretation Act, to determine whether s 377A furthers the object of reducing HIV. Even if this Court were minded to do so, however, the Plaintiff reminds this Court that s 377A not only bears no rational relation to this “object”, but that it also actively undermines any effort to reduce the incidence of HIV.

CONCLUSION

127. The following is a summary of the Plaintiff’s submissions above:-

128. the objects of s 377A is the promotion of a particular vision of “morality” that says that all intimate relationships aside from those between members of the opposite genders are immoral. This Court is not permitted to take into account hypothetical “objects” such as the reduction of HIV, or of incidences of non-consensual, public or underage sexual conduct.

129. s 377A, by being patently vague and unclear, fails the “intelligible differentia” standard demanded by Article 12(1) of the Constitution.

130. s 377A, by irrationally and arbitrarily imposing a criminal penalty on male homosexuals and not female homosexuals, is not founded on an intelligible differentia.

131. The Plaintiff’s application ought to succeed purely on these limited grounds. However, the Plaintiff urges this Court to strike down s 377A on more fundamental grounds – in particular, on the ground that s 377A, by imposing a criminal penalty on an immutable and natural attribute that homosexual men have no control over, is akin to a law criminalising writing with the left hand, or having blue eyes, and is thus against the fundamental rules of natural justice that “law” in Article 9(1) and Article 12(1) presupposes. This submission is elaborated in further detail in the Plaintiff’s Written Submissions.

Dated this 04 day of February 2013


_____________________

Counsel for the Plaintiff

Mr. M. Ravi

M/s L F Violet Netto

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