Remy Choo*
Remy Choo Chambers, Singapore
remy.choo@rcchambers.com.sg

Singapore has become the latest country to decriminalise same-sex sexual conduct between consenting men. After decades of legal challenges in parliament and the courts, the Prime Minister of Singapore Lee Hsien Loong announced, at the end of August 2022, that section 377A (S377A) of the Singapore Penal Code will be repealed.

However, while marking a significant advancement for the LGBTI community in Singapore, the news of repeal was qualified by the Singapore government’s countervailing statement that it would concurrently introduce legislation to prevent the definition of marriage between a man and a woman from being judicially challenged.

Repeal at last

S377A originally found its way into pre-independence Singapore statutes in 1938, when Singapore was still part of the Straits Settlements and governed as a colony of the United Kingdom.

The repeal of S377A is the culmination of a decades-long push by activists and lawyers. Over the last 15 years, S377A has been challenged in the Singapore Parliament and courts as being unconstitutional, and a breach of Article 12 of the Singapore Constitution that guarantees the equal protection of the law.

Two legal challenges were brought in the High Court of Singapore between 2010–2013, but dismissed by Singapore’s apex court, the Court of Appeal, in 2014. Three legal challenges were brought to S377A in 2018, but dismissed by the Court of Appeal in February 2022.

The latest set of legal challenges brought to S377A were commenced in the High Court of Singapore in September 2018, weeks after the Indian Supreme Court judgment in Navtej Singh Johar v Union of India, which declared section 377 of the Indian Penal Code unconstitutional ‘in so far as it criminalises consensual sexual conduct between adults of the same sex’.

The Court of Appeal dismissed the constitutional challenges cases in a judgment in February 2022 on technical grounds. The Court of Appeal held that the Attorney-General of Singapore had given public assurances that S377A would not be enforced in 2020, and therefore the Attorney-General’s pronouncement created a substantive legitimate expectation of non-enforcement. Because of this policy of non-enforcement, the plaintiffs had no legal standing to maintain the constitutional action as there was no controversy for the courts to decide.

Notwithstanding the Court of Appeal’s narrow dismissal of the constitutional challenges against S377A in 2022, the 2022 judgment suggested that if the Court were to rule on the substantive question of whether or not S377A was constitutional, it might well arrive at the conclusion that it was not constitutional.

Shortly after the 2022 judgment, the Singapore government announced a review of S377A. When announcing the repeal of S377A, Prime Minister Lee cited the repeated legal challenges to S377A and the risk that the Courts would one day strike down S377A as unconstitutional as the impetus for repeal.

The 'but'

While announcing the repeal of S377A, the Singapore government concurrently indicated that it intends to make amendments to the Singapore Constitution to limit legal challenges in the Courts to the definition of marriage as being between a man and a woman.

The precise nature of these amendments are as yet unclear, but the Singapore government has indicated that it intends to limit the ability of the LGBTI community to use public interest litigation to obtain outcomes similar to that in the recent Indian Supreme Court case of Deepika Singh v Central Administrative Tribunal and Ors, where the Indian Supreme Court ruled in August 2022 that familial relationships may take the form of domestic, unmarried partnerships or queer relationships, and that such ‘atypical manifestations’ of the family unit are equally deserving of social welfare benefits.

In commenting on the decision in Deepika, Singapore’s Law and Home Affairs Minister stated:

‘Currently, “marriage” is defined (in law) as one between a man and a woman. This definition is likely, in due course, to be challenged in the courts, as being in breach of the Constitution (together with future court challenges on s377A)

‘To prevent such legal challenges, the Government said last week that we will amend the Constitution – to make sure that what a “marriage” should be, is decided in Parliament, and not through a challenge in the courts.’

The net result of this qualified repeal of S377A for the LGBTI community is a feeling of relief, tinged with uncertainty and concern for the future. While current progress has been hard-fought, the gains obtained are not unqualified, and the road ahead is far from clear of obstacles.

*The author was one of the lawyers involved in the constitutional challenges to S377A in 2013 and 2018.