Introduction

While Asian countries in general, and the South East Asian region in particular continue to grapple with the fast-evolving contours of LGBTQ+ rights, Singapore ostensibly made "progress" in November 2022 when the parliament, by an overwhelming majority, repealed Section 377A of the Penal Code which criminalized private and consensual same-sex conduct between men.

The repeal of this colonial law was long overdue, but it came at a price. The parliament simultaneously passed a Constitutional amendment to "protect" the definition of marriage as a union between a man and a woman from further legal challenge.

In the words of Prime Minister Lee Hsien Loong, these were "balanced, wise steps forward" to allow the government to placate the interests of gay rights activists and conservatives alike. Those in favor of repeal demanded equality before the law for all gay people.

While those against were afraid of the repeal's repercussions on Singapore’s traditional family structure, given the slow but steady acceptance of marriage equality in developed nations.

So while Prime Minister Lee described the twin moves of repeal and amendment as a “major achievement”, it is actually a colossal compromise that will make it harder for gay couples in Singapore to attain marriage equality anytime soon.

Singaporean Courts: Apathetic to Gay Rights

Sociologist George Baylon Radics points out that four unsuccessful judicial challenges to Section 377A cemented the legal fate of Section 377A for years to come. Of significant importance was the first legal challenge: Lim Meng Suang and another vs. Attorney-General (2014).

In this case, the Singapore Court of Appeal combined appeals from two cases to determine the constitutionality of Section 377A, specifically whether it violated the fundamental rights provided under Article 9 (right to life or personal liberty and Article 12 (right to equality) of the Singaporean Constitution [specifically, articles 9(1), 12(1) and 12(2)]

The appellant in the first case was Tan Eng Hong, who in March 2010, was arrested for engaging in oral sex in a public washroom with another man. The appellants in the second case were Lim Meng Suang and Kenneth Chee Mun-Leon - a same-sex couple who had been together for 15 years.

Insofar as Article 9(1) was concerned, the Court held that the right to personal life or liberty did not include the right to privacy and personal autonomy because Article 9(1) strictly applied to the personal liberty of people unlawfully incarcerated or detained only – the Court refused to extend its ambit suddenly to include men engaging in same-sex conduct.

The Court went on to state that even though Article 9 was derived from Article 21 of the Indian Constitution, this would not compel Singaporean Courts from expanding the ambit of Article 9 just because Indian Courts have done the same, time and time again, with the scope of Article 21.

"This approach must be understood in the context of India’s social and economic conditions," the Court said.

Insofar as Articles 12(1) and 12(2) were concerned, the Court applied the “reasonable classification test” and held that there were no legal standards that prevented Section 377A from achieving its “legitimate objective”- which was penalizing same-sex conduct between men.

The additional arguments presented by the appellant’s lawyers were deemed "extra-legal" in nature and hence, dismissed.

"It is impermissible for the courts to arrogate to themselves legislative powers – to become, in other words, 'mini-legislatures',” the Court said.

Finally, on Article 12(2), the Court looked strictly at the text of the clause and ascertained that only religion, race, descent, and place of birth were listed as protected categories.

Since there was no mention of "sex", "sexual orientation" or "gender" in the text of Article 12(2), the Court refused to impute such a meaning into the Constitution. Once again, the Court held that the legislature was best fit to amend the Constitution if it wanted to include more protected classes.

In sum, the Court unanimously ruled that Section 377A did not violate the Constitution and specifically highlighted that most of the arguments made by the appellant's lawyers "involved extra-legal considerations and matters of social policy which were outside the remit of the court, and should, instead, have been canvassed in the legislative sphere".

Legally speaking, Section 377A would stand.

Years later, after the Indian Supreme Court chipped away at Section 377 in its landmark 2018 ruling in Navtej Singh Johar v. Union of India, interest in challenging Section 377A in Singapore resurfaced. However, lawyers were confronted with two major hurdles.

First, India’s ruling in Navtej relied heavily on international case law. Moreover, the Supreme Court of India adopted a "transformative constitutional" approach which allowed it to hold that the statute violated not only Articles 14, 21, and 19(1)(a) of the Indian Constitution, but also acknowledge that the very same Court had erred in a previous judgment that upheld the constitutionality of Section 377 (Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors., 2013).

With the passage of Navtej, Koushal was effectively overturned. This transformative reading of the Constitution was very different from the Singapore Court of Appeal’s approach.

The second issue at hand was the fact that public opinion in Singapore still favored maintaining the existing heteronormative, anti-gay norm.

A detailed 2018 Ipsos report of 750 Singapore citizens and permanent residents, aged 15-65, found that 55% of respondents supported Section 377A while only 11% opposed it; on the issue of whether Singapore should accept same-sex relationships, 38% opposed, and only 28% extended support.

Despite growing pressure from the public to repeal Section 377A, it was not sufficient for the government to act. In a 2018 statement, K Shanmugam, Law and Home Affairs Minister said that while public opinion was relevant, the majority of Singaporeans still opposed the repeal. Hence, the statute would stand.

The Court of Appeal was also clear in its 2018 judgment that all “extra-legal” arguments should be presented to the parliament rather than the Courts, clearly a losing strategy for gay rights activists.

It was in this despondent political environment that three fresh legal challenges to Section 377A were mounted in the courts, all of which eventually failed. 

The Path Ahead for Marriage Equality

The legal definition of marriage in Singapore is found in the Women’s Charter (1961), supplemented by the Interpretation Act (1965). The Women's Charter was enacted to provide for the solemnization and registration of "monogamous marriages" and consolidate laws relating to divorce, the rights and duties of married people, the maintenance of wives, etc.

Meanwhile, the Interpretation Act defines a “monogamous marriage” as a “voluntary union of one man and one woman to the exclusion of all others during the continuance of the marriage”.

The Constitutional amendment that the government passed in November was the inclusion of Article 156 into the Constitution, which states that only parliament - and not the Courts - would have the legal authority to "define, regulate, protect, safeguard, support, foster and promote the institution of marriage".

More significantly, the amendment made it clear that Part 4 of the Constitution could not be used to invalidate the Amendment [Part 4 of the Constitution deals with Fundamental liberties, such as Article 9 (the right to personal life and liberty), Article 12 (equal protection) and Article 14 (free speech and expression)].

In other words, same-sex couples cannot use the strategy of what Law Minister, Shanmugam called “creative arguments” to challenge Article 156 citing violations of individual freedoms, liberties, and equal protection under the law.

In a succinct yet balanced criticism of the Marriage Amendment, Workers’ Party Chairwoman, Sylvia Lim highlighted that the Marriage Amendment was nothing more than a quid pro quo for the repeal of Section 377A to appease the conservative majority.

By disallowing potential gay plaintiffs from challenging the provisions of Article 156 in Court, the legislature had effectively curtailed the ability of the Courts from enacting their constitutional duty of keeping a check on Parliament’s powers and excesses. Furthermore, this "carve-out" on marriage could set precedent for future carve-outs, say, for example, prohibitions on legal challenges seeking to redefine the words "man" and "woman" to include trans-persons.

The principle of judicial review is key to the functioning of any healthy democracy. The Supreme Court of the United States held in Marbury v. Madison (1803) held that Congress did not have the power to pass laws that overrode the Constitution.

The Supreme Court of India held in Kesavananda Bharati v. State of Kerala (1973)) that even though Article 368 of the Indian Constitution gave the parliament the right to amend the Constitution, that right was limited as long as the "basic structure" of the Constitution was not altered. The” basic structure” consists of a variety of features, key among them being the separation of powers of the three arms of the government and the supremacy of the Constitution (which enshrines each citizen with fundamental, inalienable rights).

What the Singapore legislature has done through the Marriage Amendment is restrict the ability of the Courts to even consider whether same-sex couples’ marriage rights are a component of personal liberties. Instead, parliament has left this issue to the whims of the majority.

Now, the only way to now legalize same-sex marriage would be through the same way Section 377A was repealed- via a supermajority, or votes from two-thirds of the elected Members of Parliament and Non-Constituency MPs.

It should be noted that repealing Section 377A took close to a decade of failed court petitions, court appeals, and sustained activism and ultimately, it was the parliament, not the courts that repealed Section 377A.

With social attitudes in Singapore evolving, albeit slowly, some may say that it is only a matter of time before most Singaporeans come around to accepting same-sex marriage. But that is not certain.

As of 2022, thirty-three countries around the world have legalized same-sex marriages and same-sex unions, while some countries- like Russia and Georgia have enacted constitutional bans in response to this increasing acceptance. As of now, Taiwan is the only Asian jurisdiction to legally recognize same-sex marriage, and debates on this issue are playing out in India and Thailand as we speak.

However, it is unlikely that any of this will affect the temper of Singaporean jurists. If Singaporean activists, especially the organizers of movements like Pink Dot play their cards right, they could effectuate change in people’s hearts and minds the way they did for Section 377. While this is promising, it will definitely take a very long time.

Kanav Narayan Sahgal is Communications Manager at Nyaaya.

Vidhispeaks is a column on law and policy curated by Vidhi. The views expressed are of the fellow and do not reflect the views of Vidhi or Bar & Bench.