Lim Meng Suang and another v Attorney-General and another appeal and another matter

• Court: Court of Appeal (Singapore)
• Judge: Andrew Phang Boon Leong JA
• Judgment Date: 28 October 2014
• Neutral Citation: [2014] SGCA 53
• Citation: [2014] SGCA 53
• Defendant Counsel: Aedit Abdullah SC, Seow Zhixiang, Neo Xiulin Sherlyn, Teo Siqi and Jurena Chan Pei Shan (Attorney-General's Chambers)
• Published date: 10 November 2014
• Plaintiff Counsel: Deborah Barker SC, Ushan Premaratne and Ng Junyi (KhattarWong LLP),M Ravi (L F Violet Netto)
• Hearing Date: 15 July 2014,06 August 2014,14 July 2014
• Date: 28 October 2014
• Docket Number: Civil Appeals Nos 54 and 125 of 2013 and Summons No 3664 of 2013
• Subject Matter: Interpretation,Constitutional Law,Constitution,Equality before the law,Right to life and personal liberty,Fundamental liberties,Equal protection of the law

Andrew Phang Boon Leong JA (delivering the judgment of the court): Introduction Overview

There are very few legal provisions in the Singapore legal landscape which, although simply stated (and intuitively attractive), are very difficult to apply in practice. Article 12 of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Singapore Constitution”) is one of these rare exceptions. In particular, Article 12(1) of the Singapore Constitution (“Art 12(1)”), which is one of the provisions in issue in the present appeals (viz, Civil Appeal No 54 of 2013 (“CA 54/2013”) and Civil Appeal No 125 of 2013 (“CA 125/2013”)), is deceptively simple in its economy of language:

Equal protection 12.—(1) All persons are equal before the law and entitled to the equal protection of the law.

…

The issue before this court in the present appeals can be stated very simply: is s 377A of the Penal Code (Cap 224, 2008 Rev Ed) (“the current Penal Code”) inconsistent with Art 9 and/or Art 12 of the Singapore Constitution (referred to hereafter as “Art 9” and “Art 12”, respectively), and hence, unconstitutional to the extent of such inconsistency? In this regard, Art 9(1) of the Singapore Constitution (“Art 9(1)”), which is the specific provision in Art 9 that the appellants in CA 54/2013 and the appellant in CA 125/2013 (collectively, “the Appellants”) are relying on, provides as follows:

Liberty of the person 9.—(1) No person shall be deprived of his life or personal liberty save in accordance with law.

…

Art 4 of the Singapore Constitution (“Art 4”), which is set out below, should also be noted: Supremacy of Constitution 4. This Constitution is the supreme law of the Republic of Singapore and any law enacted by the Legislature after the commencement of this Constitution which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.

Section 377A of the current Penal Code, the provision which is the subject of the Appellants’ constitutional challenge, reads as follows: Outrages on decency 377A. Any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to 2 years. In this judgment, we shall be referring to s 377A of not only the current Penal Code, but also earlier editions of that statute. As there are no substantial differences between the various versions of s 377A, we shall use the generic term “s 377A” to denote the version of s 377A in force at the particular point in time being discussed.

We also note that there is a presumption of constitutionality inasmuch as a court will not lightly find a statute or any provision(s) thereof (referred to hereafter as a “statute” for short) unconstitutional (see, for example, the decision of this court in Public Prosecutor v Taw Cheng Kong [1998] 2 SLR(R) 489 (“Taw Cheng Kong (CA)”) at [60]). This is only logical as well as commonsensical as our legislature is presumed not to enact legislation which is inconsistent with the Singapore Constitution. However, an issue arises in these appeals as to whether or not this presumption applies to colonial legislation as well, given that s 377A was first introduced into our Penal Code in 1938, when Singapore was still a British colony.

Whilst the central issue in the present appeals (as set out above at [2]) can be stated simply, it is intensely controversial, and has elicited diametrically opposed (as well as, on occasion at least, intense and even emotional) responses in the extra-legal sphere, especially where Art 12 is concerned. A great many arguments have been mounted by proponents on each side of the divide. It is no exaggeration to say that this court found itself in the midst of a cacophony of voices. Be that as it may, only one voice – and one voice alone – is relevant in so far as the present appeals are concerned: it is the voice of the law, which represents the voice of objectivity. All other voices are irrelevant; indeed, they generate unnecessary heat (and distraction) rather than needful (and illuminating) light.

Important general points Only legal arguments are relevant

Before we set out the background facts and procedural history of the present appeals, it is necessary for us to first highlight a few important general points. The first is that many of the difficulties encountered in the context of Art 9 and Art 12 relate to the fact that the court is often involved in a delicate balancing process. More importantly, it often faces a paradox which it must nevertheless negotiate. On the one hand, it must disregard extra-legal considerations that are uniquely within the purview of the legislature (here, the Singapore Parliament). This was in fact a central motif in the justly famous theory of adjudication proffered by the late Prof Ronald Dworkin (in an entire series of works, commencing with his seminal book, Taking Rights Seriously (Harvard University Press, 1978) (especially at ch 4)). Yet, where the constitutionality of a statute is challenged under Art 9 and/or Art 12, the court must have regard to extra-legal considerations in so far as they impact the application of Art 9 and Art 12 themselves. The vexing difficulty – particularly in the context of the present appeals – is to discern where the line is to be drawn, bearing in mind that where the court does indeed have regard to extra-legal considerations, this must (in the nature of things) be by way of a very limited brief premised only on what is absolutely necessary to enable the court to apply the relevant legal principles relating to Art 9 and Art 12.

Drawing such a line in the legal sand is imperative. If this is not done, the court will necessarily be sucked into and thereby descend into the political arena, which would in turn undermine (or even destroy) the very role which constitutes the raison d’être for the court’s existence in the first place – namely, to furnish an independent, neutral and objective forum for deciding, on the basis of objective legal rules and principles, (inter alia) what rights parties have in a given situation. That the court’s role as a neutral arbiter is utterly vital is underscored in a situation where (as is the case here) the arguments on either side of what is in substance a legislative divide are intensely controversial and the relevant empirical evidence is ambiguous at best. All that the court can – and must – be concerned with in these circumstances is whether any fundamental rights under the Singapore Constitution (such as those pursuant to Art 9 and Art 12) have indeed been violated.

In determining the constitutionality of a statute which is alleged to be inconsistent with Art 12 (or, for that matter, any other Article of the Singapore Constitution), the court’s main concern is to be careful not to trespass into extra-legal territory which legitimately belongs only to the legislature. Looked at in this light, the many extra-legal arguments on the constitutionality of s 377A are irrelevant to the court’s application of Art 12. We hasten to add that this does not mean that these arguments are wholly irrelevant in all contexts. They are appropriate to a legislative debate, but that is wholly beyond the remit of the court. The proponents of these arguments fail to see this because they overlook the vital distinction referred to above (at [6]) between legal principles and extra-legal considerations. Hence, they proffer various extra-legal arguments as though those arguments are central to the court’s task, when they serve only to muddy an already difficult legal path which the court is attempting its level best to negotiate. This is unfortunate, to say the least. Indeed, the difficulties are exacerbated by the fact that some of the extra-legal arguments might also have an overlay of emotional and/or other overtones, and, on this ground alone, are more suited (if at all) to a legislative (or even philosophical) – but not a legal – debate.

What is legally relevant (and irrelevant) in the context of the present appeals

It follows, a fortiori, from the observations in the preceding paragraph that in deciding the present appeals, this court cannot – and must not – be drawn into the sphere of even broader (and, arguably, even more speculative) debate, in particular, on the possible legal as well as extra-legal consequences flowing from its decision on the constitutionality of s 377A. Indeed, counsel for the appellants in CA 54/2013, Ms Deborah Barker SC (“Ms Barker”), was at pains to point out right at the outset of her clients’ written case (as well as in her oral submissions before this court) that her clients’ appeal is not about other legal rights (such as the right to same-sex marriage). There is, in fact, no necessary connection between any court decision on the constitutionality of s 377A and any positive rights, the grant (or otherwise) of which is clearly a matter for the legislature – and the legislature alone. The line referred to above between what is legitimately within the purview of the court and what is legitimately within the purview of the legislature applies, as noted at the outset of the present paragraph, in an a fortiori manner in the present appeals.

It follows that in the present appeals, this court will take into account only those arguments which are legally relevant to the application of Art 9 and Art 12. All other arguments – interesting though they might be – ought to be canvassed in the appropriate fora (whether of a legislative, academic or some other public (but non-judicial) nature).

It is also important to emphasise that it follows that nothing in this judgment impacts the freedom of a person or group of persons to freely espouse as well as practise his/its...