Tan Seng Kee v Attorney-General and other appeals

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 28 February 2022
• Neutral Citation: [2022] SGCA 16
• Citation: [2022] SGCA 16
• Court: Court of Appeal (Singapore)
• Published date: 03 March 2022
• Docket Number: Civil Appeals Nos 54, 55 and 71 of 2020
• Plaintiff Counsel: Ravi s/o Madasamy (Carson Law Chambers),Eugene Singarajah Thuraisingam, Suang Wijaya, Johannes Hadi and Joel Wong En Jie (Eugene Thuraisingam LLP),Harpreet Singh Nehal SC, Jordan Tan, Victor Leong (Audent Chambers LLC) (instructed), Choo Zheng Xi, Priscilla Chia Wen Qi and Wong Thai Yong (Peter Low & Choo LLC)
• Defendant Counsel: Kristy Tan Ruyan SC, Hui Choon Kuen, Wong Huiwen Denise, Jeremy Yeo and Pang Ru Xue Jamie (Attorney-General's Chambers)
• Subject Matter: Constitutional Law,Constitution,Interpretation,Equal protection of the law,Equality before the law,Fundamental liberties,Freedom of expression,Freedom of speech,Right to life and personal liberty,Statutory Interpretation,Constitutional provisions,Construction of statute,Extrinsic aids,Noscitur a sociis,Purposive approach
• Hearing Date: 25 January 2021

Sundaresh Menon CJ (delivering the judgment of the court): Introduction

These appeals concern the constitutionality of s 377A of the Penal Code (Cap 224, 2008 Rev Ed) (referred to hereafter as “s 377A” and “the PC” respectively), an issue which is before this court not for the first time. The appellants contend that s 377A is unconstitutional by reason of its inconsistency with Arts 9, 12 and/or 14 of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”). Although s 377A is a law that, on its face, purports to do no more than prohibit particular sexual acts, its penalty and purpose carry more profound consequences, touching upon “the most private human conduct” and often in the context of the most private relationships (see Lawrence et al v Texas 539 US 558 (2003) at 567). Yet, for a law that has come to be intensely personal to many for what it means both practically and symbolically, it has also assumed an exceedingly public dimension. What rights the appellants claim to be fundamental, others view as controversial; what is to the appellants deeply personal and even definitive of their identity, others regard as offensive. On both sides of this divide, the continued existence of s 377A in our statute books has taken on particular importance because of what it is thought to signify. (For completeness, we note that the current s 377A of the Penal Code 1871 (2020 Rev Ed) (“the Revised PC”) is in pari materia with s 377A of the PC, which was the version of the provision that was in force at the time of the appellants’ respective applications and the subject of the present constitutional challenges. Likewise, the present Arts 9, 12 and 14 of the Constitution of the Republic of Singapore 1965 (2020 Rev Ed) (“the Revised Constitution”) are in pari materia with the corresponding Articles of the Constitution that were in force at the material time. Our judgment is thus equally applicable to the current s 377A of the Revised PC and Arts 9, 12 and 14 of the Revised Constitution.)

Before delving into the questions that these appeals present, we first clarify the scope of these appeals, beginning with what they are not about. They are not about whether s 377A should be retained or repealed, that being a matter beyond our remit. Nor are they about the moral worth of homosexual individuals. In the words of our Prime Minister, Mr Lee Hsien Loong (“the Prime Minister”), homosexual individuals are “part of our society” and “our kith and kin” (see Singapore Parliamentary Debates, Official Report (23 October 2007) vol 83 (“the 23 October 2007 Debates”) at col 2398 (Lee Hsien Loong, Prime Minister and Minister for Finance)). They are also not about the fundamental nature of sexual orientation (whether immutable or not), which is an extra-legal question well beyond the purview of the courts.

What, then, are these appeals about? The deceptively easy answer – namely, whether s 377A is inconsistent with the Constitution – belies the underlying complexity of the issues that are before us. Section 377A has long been a lightning rod for polarisation, in large part because it raises a wider question, which admits of no ready answers, of how a State can best maintain harmony between different communities with deeply held, and sometimes conflicting, views on important issues of moral conscience. As the socio-political debate over s 377A continues, the balance between various interests in society grows more delicate, and the need to create space for peaceful co-existence too becomes more pressing.

One may well ask whether litigation is, in fact, the optimal way to resolve such differences. Politics seems the more obvious choice than litigation for debating and resolving highly contentious societal issues. At the heart of politics lies the project of democratic engagement, as politicians aim to persuade voters by appealing to hearts and minds. Litigation, on the other hand, is “not a consultative or participatory process” but “an appeal to law” (see Jonathan Sumption, Trials of the State: Law and the Decline of Politics (Profile Books Ltd, 2019) (“Trials of the State”) at p 65). The single biggest advantage of the political process – in fact, its raison d’être – is its ability to accommodate divergent interests and opinions (see likewise Trials of the State at p 65). However sub-optimally some may think politics performs that function, the courts can never discharge that function simply because it is not their constitutional role to mediate such differences in society. And this is so for good reason, because litigation is a zero-sum, adversarial process with win-lose outcomes. The political process, in contrast, seeks to mediate – it strives for compromises and consensus in which no one side has to lose all.

The forum in which we resolve sincere disagreements over issues of moral conscience matters for at least three reasons. First, the political process is by nature more suited for the resolution of such issues. The courts deal with the retrospective adjudication of rights and liabilities arising out of past events, whereas politics aims to forge consensus amongst individuals with different (and often conflicting) interests in order to create policies to govern future conduct (see Sundaresh Menon, “Executive Power: Rethinking the Modalities of Control”, Annual Herbert L Bernstein Lecture in Comparative Law delivered at Duke University School of Law on 1 November 2018, 29 Duke J Comp & Int’l L 277 (2019) (“the Bernstein Lecture”) at 300). As such, it is Parliament, and not the courts, that is best placed to devise a pluralistic vision that accommodates divergent interests.

Second, even those who place a higher premium on outcomes than processes have every reason to be invested in having social controversies resolved by robust public debate rather than by litigation. One need only consider the outsized consequences of the decision of the Supreme Court of the United States in Roe v Wade 410 US 113 (1973) (“Roe v Wade”) to comprehend this point. In the 1970s, state legislatures in the United States seemed to be leaning towards the gradual liberalisation of abortion statutes. However, that process was abruptly disrupted by the Supreme Court’s decision in Roe v Wade in 1973, in which the court held that the Due Process Clause in the Fourteenth Amendment to the United States Constitution provided a “right to privacy” that protected a pregnant woman’s right to choose whether to have an abortion. It has been suggested that by short-circuiting the process of democratic, organic change, Roe v Wade “stimulated the mobilization of a right-to-life movement and an attendant reaction in Congress and state legislatures”, thereby deferring stable settlement of what has now become an intractable issue (see Ruth Bader Ginsburg, “Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade” 63 N C L Rev 375 (1985) at 381). Nearly 50 years later, the ramifications of that decision continue to reverberate in the legal challenges that are still being brought against it, and in how prominently it continues to feature in the public examination of candidates for appointment to the Supreme Court.

Third, the courts risk a diminution in their legitimacy if they are perceived as having overstepped their boundaries. This risk may materialise if the courts wade into matters that call for resolution by discussion, consensus and debate, rather than by a judgment handed down by a court. It can only be injurious to public confidence in the courts if polycentric matters are not debated and resolved by the many but summarily adjudicated by the few. Accordingly, judicial restraint should be prioritised in the face of disagreements that stem from incommensurable conceptions of the good.

In the final analysis, certain issues call for continued discussion and open-ended resolutions, rather than win-lose outcomes recorded in a court judgment. Of course, some may disagree. The appellants point to the decision of the Supreme Court of India in Navtej Singh Johar & Ors v Union of India thr Secretary, Ministry of Law and Justice [2018] 10 SCC 1, which decriminalised same-sex intercourse, and contend that the time has come for us likewise to declare s 377A unconstitutional. However, one cannot look to developments abroad without first appreciating the exceptional situation in Singapore. The merits of retaining s 377A were subject to robust and lengthy debate in Parliament in 2007, culminating in a uniquely Singaporean resolution: a political compromise in which s 377A would be retained because it was thought to bear important symbolic weight for the conservative mainstream in Singapore. Exceptionally, this was on the basis that s 377A would not be proactively enforced, so as to accommodate our homosexual kith and kin. To our knowledge, no other country has struck a similar political compromise in respect of laws resembling s 377A.

The aforesaid political compromise was conceived with the express intention of accommodating divergent interests, avoiding polarisation and facilitating incremental change. Its purpose was to keep s 377A as a matter within the democratic space. There are consequences in removing issues of such profound public and moral significance from the realm of democratic decision. As Chief Justice John Roberts pithily put it in Obergefell v Hodges 576 US 644 (2015) at 710, “[c]losing debate tends to close minds”.

Importantly, the political compromise on s 377A that was forged in 2007 and that has been upheld since then has radically altered the complexion of this provision, in terms of both its constitutionality and its consequences for those whom it might affect. Any discussion on the constitutionality of s 377A therefore cannot ignore the terms, the purpose and the consequences of this political compromise.

The role of the court

As the appeals before us raise matters of...