User:Sgconlaw/Lim Meng Suang and another v. Attorney-General

Lim Meng Suang v Attorney-General is a Singapore High Court case delivered in 2013. It involved a male couple seeking a declaration to void section 377A of the, for being inconsistent with Article 12(1) of the. Section 377A criminalises any act of gross indecency between men, while Article 12(1) enshrines the fundamental right to equality. In reaching the decision, Quentin Loh J applied the test for constitutionality under Article 12(1) i.e. the “reasonable classification" test, to determine if section 377A is inconsistent with Article 12. Under this test, legislation is consistent with Article 12(1) if the classification prescribed by the legislation was founded on (1) an intelligible differentia or distinguishing feature, and (2) that the differentia bears a rational relation to the object sought to be achieved by the legislation. On the facts of the case, the intelligible differentia was found to have a rational relation to the object sought to be achieved. The differentia underlying section 377A only covered acts of gross indecency between males, whilst its object was to strengthen the criminal law by empowering the prosecution of male homosexual conduct. Accordingly, the High Court observed that section 377A had a complete coincidence between the differentia underlying the classification and the object of the legislation. The purpose of section 377A was also found to be not illegitimate as it concerned the addressing of a discernable and not wholly unjustifiable social and public morality.

Subsequently, Tan Eng Hong v AG affirmed the decision in Lim Meng Suang v AG, and applied it accordingly to arrive at the same conclusion - that section 377A is not inconsistent with Article 12(1). Lim Meng Suang v AG, however, has attracted some controversy and criticism from Associate Professor Yap Po Jen from the Faculty of Law of the University of Hong Kong. He explains that the High Court should not have confined the purpose of section 377A to the original purpose given by the English Legislative Assembly. Rather, the High Court should have found a purpose which was more relevant to the modern Singapore context.

Facts
On 30 November 2012, Mr Lim Meng Suang (44 years old) and Mr Kenneth Chee Mun-Leon (37 years old) sought a declaration that section 377A of the should be void for being inconsistent with Article 12(1) of the. This is because Article 4 of the Constitution provides that "[the] 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 criminalises any act of gross indecency between men, even where the conduct is consensual, and is carried out in the privacy of one’s home. The relevant provision 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.

Mr Lim and Mr Chee were in a romantic and sexual relationship with each other for the past 16 years. Mr Chee works for Mr Lim’s company as a graphic designer, and both parties possess advanced degrees. The couple does have a life together but do not feel that they can be openly affectionate in public. This was because they had grown up with the knowledge that gay sex was illegal, and both felt the social stigma of being homosexual, even to this day. They were also apprehensive because section 377A prosecutes male homosexuals for “gross indecency”. Throughout their army and schooling days, both parties experienced discrimination against homosexuals, and this remains the case today. Both Mr Lim and Mr Chee felt that section 377A reinforces this discrimination, as this provision labels them as criminals. It is for this reason that the parties decided to commence the action.

Legal Issue
The main issue is whether section 377A of the Penal Code offends the fundamental liberties under Article 12(1) of the Constitution. If so, section 377A is unconstitutional and should be struck down.

The fundamental liberties enshrined in Article 12(1)
Quentin Loh J explained the principles encapsulated in Article 12(1) of the Constitution. The relevant provision reads as follows:


 * 'Equal protection '


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

The provision enshrines two principles. First, that all persons are equal before the law, and second, that all persons are entitled to the equal protection of the law. Equality before the law prohibits special privileges in favour of any individual, whilst the concept of equal protection of the law stems from the Fourteenth Amendment, and guarantees both procedural and substantive equality.

Quentin Loh J clarified that both principles are different aspects of the doctrine of equal justice. The Malaysian court in PP v Su Liang Yu, also held that equal justice is the dominant idea behind the two principles. The first principle requires all classes of persons to be treated equally under the law, and the second enforces the first principle by striking down unequal laws and discriminatory administrative or executive action as unconstitutional and void.

However, equal protection of the law does not mean that all laws passed by Parliament apply to all persons, and that the laws cannot create differences as to whom they apply. In dealing with specific problems and groups of people, the laws enacted will inevitably rely on some classification of persons, which produces inequality of varying degrees. Nonetheless, the legislature can create differentiating measures if they are constitutional. All in all, equality before the law and equal protection of the law under Article 12(1) does not mean that all persons must be treated equally, but that all persons in like situations must be treated alike.

Reasonable Classification Test


Quentin Loh J applied the reasonable classification test set out in the case of Tan Eng Hong v AG to determine if a law violates Article 12 of the Constitution. The test is as follows:

Where the law uses a differentiating measure, legislation is only consistent with Article 12(1) if:
 * 1) The classification used is founded on an intelligible differentia (distinguishing feature).
 * 2) The differentia bears a rational relation to the object sought to be achieved by that legislation. To answer this question, the following inquiry has to be undertaken:
 * What is the object of the statute?
 * Does the basis of the discrimination bear a rational relation to the object?

Intelligible differentia
There must be an intelligible differentia underlying the classification used; that is, the distinguishing character of the law must be clear.

Application of the test

Section 377A passes the intelligible differentia test as the classification is clear; the provision obviously targets male homosexuals or bisexual males who perform acts of “gross indecency” on another male. Section 377A does not target gross acts of indecency between male-female couples, and female-female couples.

Differentia bears a rational relation to the object sought to be achieved by that legislation
Having shown an intelligible differentia under section 377A, the Court then evaluated the second element of the reasonable classification test. This requires determining the object of section 377A, and considering whether there was a rational relation between the object, and the differentia underlying the classification prescribed by section 377A.

Meaning of rational relation
The court defined rational to mean that which is supported by reason, and in conformance with what is fairly expected. In other words, a rational relation is one that is reasonable and just. To determine if the rational relation is reasonable, the court referred to the “ordinary and reasonable man” test in Taw Cheng Kong v PP. This test is satisfied if the ordinary and reasonable man agrees there is an adequately close connection between the objective of the act and the classification used.

Additionally, two principles are helpful in enabling the courts to determine whether the differentia underlying the classification prescribed by a piece of legislation bears a reasonable and just relation to the purpose of that legislation.

The differentia must be broadly proportionate to the objective of the provision
The “rational relation” requirement is satisfied if the differentia underlying the classification prescribed by a law is broadly proportionate to the purpose of that law. This ensures that the differentia bears a connection to the object of the law. This was applied in Yong Vui Kong v. Public Prosecutor, where the rational relation between the 15g differentia and object of the was made out since the quantity of addictive drugs trafficked was broadly proportionate to the harm posed to society.

However, this does not mean that the differentia must be the most effective means of achieving the statutory objective. Provided the differentia is broadly effective in achieving the statutory objective, the courts cannot interfere with Parliament’s decision by prescribing another classification. The court cannot evaluate whether Parliament could have or ought to have devised a more efficacious differentia.

Under and over inclusiveness
Under the “rational relation” requirement, the prescribed classification must broadly fit the object of the law prescribing that classification regarding the scope of its application. If the differentia underlying the classification results in the classification being applied too broadly or too narrowly, the “reasonableness of the classification is insufficient”. A classification is more reasonable the closer it is to the legislative objective, but there is no need for a complete coincidence between the classification and objective. In other words, an over-inclusive or under-inclusive classification might still satisfy the “rational relation” test.

Objective of section 377A
The High Court evaluated various sources and held that the object of section 377A was to criminalise acts of males engaging in acts of gross indecency with other males.

The court traced the origins of section 377A to the Labouchere Amendment that was introduced into section 11 of England’s Criminal Law Amendment Act to protect females, and to suppress brothels. This amendment was to protect persons above 13 from ‘an assault of the kind here dealt with’. There was no intention to target male homosexual conduct, though the provision was eventually worded otherwise.

The Penal Code (Amendment) Ordinance 1938 (No. 12 of 1938) was introduced to Singapore, and it clarified that male homosexual acts were to be criminalised as the local laws were inadequate to deal with the grossly indecent homosexual acts committed. The amendment would strengthen the criminal law, as it would prosecute males engaging in such acts even if in private.

The court also held that the October 2007 Parliamentary Debates were not useful in determining the objective of section 377A. Rather, the debates served as a proof that the objective of section 377A had not changed over the years. Singapore remains a conservative society where the majority does not accept homosexuality, hence the need for section 377A.

Object of section 377A bears a rational relation to the differentia underlying the classification prescribed
As established, the objective of section 377A was to criminalise male homosexual conduct, and the differentia used was male homosexual conduct. Applying the reasonable classification test, the High Court held that there was a complete coincidence between the differentia underlying the classification prescribed by the legislation, and the class defined by the object of that legislation. The differentia was also broadly proportionate to its legislative purpose, without being over-inclusive or under-inclusive.

Accordingly, the court held that section 377A of the Penal Code did not contravene Article 12 of the Constitution, and so was not unconstitutional.

The presumption of constitutionality
In applying the “reasonable classification” test, Quentin Loh J cautioned the court to remain mindful of the presumption of constitutionality. In examining whether the legislation in question was unconstitutional, the Court of Appeal in Public Prosecutor v. Taw Cheng Kong, that providing examples of arbitrariness did not rebut the presumption of constitutionality. This would undermine the whole basis of the principle. Instead, to rebut the presumption, the party challenging the law must show that the impugned law was enacted or had operated arbitrarily. However, the presumption of constitutionality does not mean that there will always be undisclosed reasons for subjecting individuals to discriminatory laws.

The High Court also held that this presumption is closely related to the separation of powers doctrine. The courts will not review matters where they lack expertise or special knowledge, or where they are ill-suited to address certain issues given that they lack legitimate power. To that end, the elected executive, which has legitimate power flowing from elections, should decide on issues of social morality. The courts should therefore prefer the executive’s policies, since they have the responsibility and the right to represent the people’s interests.

Difficulties with the "rational relation" test
Ascertaining the object of the statute

There were several difficulties in ascertaining the statutory objective. These difficulties concerned whether Parliament had defined this objective, and, if the purpose of the entire legislation was to be taken into account, or if only that section was to be considered. There was also a problem as to whether this objective should be framed narrowly or widely, and, whether the original purpose behind the adopted foreign legislation, or the Singapore purpose for introducing the statute should be used. Since societies change over time, the original purpose may cease to exist. If so, the difficulty lies in whether a new purpose substitutes the old.

Purpose of section 377A is not illegitimate
Quentin Loh J ruled that the purpose of section 377A was not illegitimate, because it addressed a social and public morality concern, which was affirmed in the October 2007 Parliamentary debates. He noted that the plaintiffs might have challenged the legitimacy of section 377A on the basis that it criminalised male homosexual conduct, but not female homosexual conduct. However, this argument failed in this case because the plaintiffs did not produce evidence to prove that criminalizing only male homosexual conduct was illegitimate.

There were two reasons for deciding that the underlying purpose of section 377A was not illegitimate.
 * 1) The weight of historical practices vis-à-vis male homosexual conduct suggests a basis for those practices
 * 2) Specific traditions with regard to procreation and lineage

The first reason was rooted in the idea that courts should not be quick to dismiss longstanding laws. Doing so required what the judge termed “justification of proportionate magnitude”. If there was insufficient justification, then the issue of repealing the law should be left to Parliament. Here, the court held that it was undeniable that only male homosexual conduct had been criminalised in the long history of the common law.

The court then examined the unsuccessful attempts to criminalise female homosexual conduct in English law, which has all along targeted male homosexual conduct, but not female homosexual conduct. The court reasoned that this was due to Judeo-Christian traditions proscribing male homosexual practices in clear terms in the Bible, whereas there was only a passing reference to female homosexual practices. After examining the definition of ‘sodomy and ‘bestiality’, the judge held that their definitions were not gender neutral, and that two women could not sodomise one another. Referring to prosecutions under s 377, Justice Loh noted that the Court of Appeal in 'PP v Kwan Kwong Weng' deliberately avoided saying that woman-to-woman cunnilingus fell within s 377. He concluded by observing that the common law has never criminalised female homosexual conduct.

The second reason was based on the judge’s notion that parts of Singapore society still hold deep seated feelings with regard to procreation. He referred to Mr Baey Yam Keng’s views in the October 2007 Parliamentary Debates, where the Member of Parliament explained that the Singapore Chinese society was still traditional and parents expected male children to marry and produce offspring to carry on the family name. The court noted that homosexual men would disappoint their parents because they could not have children. The High Court noted that this was inconclusive proof that Singapore’s society regards procreation and lineage as important values. Regardless, High Court held that laws should not be dismissed as illegitimate if there are existing justifications within the context of Singapore's societal mores and norms.

Cases decided after Lim Meng Suang
Shortly after the High Court handed down the decision in Lim Meng Suang, Justice Loh issued his decision on the case of Tan Eng Hong v Attorney-General. In that case, Mr Tan was arrested and charged under section 377A for engaging in oral sex in a toilet cubicle with another male person. Similar to Lim Meng Suang, Mr Tan contended that section 377A should be void for being inconsistent with Art 12(1) of the Constitution. Quentin Loh J held that section 377A was not inconsistent with Article 12(1), for the same reasons he expounded in Lim Meng Suang. However,the judge in Tan Eng Hong went on to address additional arguments put forth by the plaintiff, a few of which are important to mention. Firstly, he held that the “reasonable classification” test, as applied in Lim Meng Suang, applies to all constitutional challenges based on Article 12(1) in Singapore. He rejected the plaintiff’s argument that a higher standard of scrutiny should be used where a statute purports to classify an individual only on the basis of a natural and immutable attribute, which an individual has no conscious control over.

Secondly, the plaintiff argued that the promotion of morality as the objective of section 377A was illegitimate as homosexuality was not an immorality, and did not harm public order. This argument is supported by the proposition that Parliament cannot legislate on an issue where the morality of that issue is controversial. The Judge rejected this, and held that Parliament had the mandate under the Constitution to decide on surrounding controversial issues. The High Court clarified that the object of section 377A would be illegitimate only if it was clear, incontrovertible, and undisputable that male homosexuality was not considered immoral by Singapore society. Finally, the plaintiff argued that HIV prevention and mitigation was not an object of section 377A when it was first enacted in 1938. Neither did Parliament intend to retain section 377A to mitigate and prevent HIV. Although the High Court accepted this argument, its decision in Lim Meng Suang was still correct since it was not premised on such a purpose.

Academic opinions
The case of Lim Meng Suang v AG attracted criticism from Associate Professor Yap Po Jen from the Faculty of Law at the University of Hong Kong. His main criticism revolves around the High Court's decision to use the original purpose of section 377A given by the 1938 English Legislative Assembly.

The original purpose of section 377A, as enunciated by the original lawmakers, should not be deemed conclusive of the purpose of the same provision in recent times

Two reasons were offered in support of this proposition. First, the Singapore Court of Appeal does not have a habit of fixating on the statements of lawmakers when a certain provision is passed, must less treat those statements as conclusive vis-à-vis the purpose of the disputed law. Second, local courts should be more cautious and refrain from placing significant weight on the statements of colonial officers when determining the purpose of the same provision in Independent Singapore.

A more recent and relevant purpose should be found for section 377A 

In Lim Meng Suang, the court concluded that the purpose behind this provision must necessarily be that which necessitated its enactment in 1938. Professor Yap, however, pointed out that seven decades had passed since 1938. Therefore, it is unclear at first sight why the purpose of section 377A must be confined to its original one. To better bolster the reason given to retain section 377A, Professor Yap opined that new suggestions relating to the purpose of section 377A, which are relevant to modern Singapore, must be provided. For instance, section 377A could serve to prevent more HIV infections.

The approach of the court in Indian case of Naz Foundation v Government of NCT of Delhi can serve as an example 

The Indian equivalent to section 377A was attacked for its constitutionality in the New Delhi High Court, but the judge did not refer to the original purpose of section 377A, as enunciated by its colonial legislators. Instead, he justified the existence of this provision using reasons relevant to modern India.

Professor Yap used the above example to suggest that the High Court in Lim Meng Suang should have done the same. As mentioned above, HIV prevention could be one justification. If the courts decide to use this justification, it should convincingly explain why penalizing sexual behavior among homosexual males can contribute to lower HIV infections. He also opined that the courts must explain whether penalizing male homosexual activity can at least, broadly fit the goal of reducing HIV infections. In doing so, they would need to explain whether criminalizing homosexual behaviour "only" among the males would proportionately achieve the goal. This is because female homosexual behaviour is not included under section 377A. Therefore, section 377A could arguably be severely under-inclusive because it excludes a large segment of homosexuals in society: the female homosexuals.

Since section 377A was enacted prior to the commencement of the Singapore Constitution, it ought to have been closely scrutinized and be given more weight in the court’s analysis 

Yap argues that since section 377A was enacted before Singapore Constitution came into existence, its constitutionality should be more closely scrutinized. This is because Parliament might not have considered whether section 377A infringes Article 12 when the former was enacted in 1938. This fact would remind the courts to investigate at the outset of the next case whether section 377A is indeed in line with Article 12 of the Constitution. Yap reasons that such a conclusion is supported by Article 162 of the Constitution, which stipulates that laws existing before the commencement of the Constitution must be inter alia modified or qualified if they do not conform to the Constitution.

The presumption of constitutionality seems to be in conflict with the principle of generous interpretation

Professor Yap pointed out that the presumption of constitutionality can, at times, be at odds with the principle of generous interpretation. This is because the former guides the courts to presume that the legislation enacted by Parliament is constitutional, while the latter informs the court to accord as much freedom as possible to citizens to enjoy their constitutional rights. Thus, Professor Yap predicts that sooner or later, the courts will have to reconcile both techniques of interpretations in a sound way.

Cases

 * Lim Meng Suang v Attorney-General [2013] SGHC 73, [2013] 3 S.L.R. [Singapore Law Reports] 118, High Court (Singapore).
 * Tan Eng Hong v Attorney-General  [2013] SGHC 199, [2013] 4 S.L.R. [Singapore Law Reports] 1059, High Court (Singapore)''
 * Public Prosecutor v Taw Cheng Kong [1998] SGCA 37, [1998] 2 S.L.R.(R.) 489 (C.A.).
 * Public Prosecutor v Su Liang Yu [1976] 2 MLJ 128.
 * Yong Vui Kong v Public Prosecutor [2010] 3 S.L.R. 489 (C.A.).
 * Public Prosecutor v Kwan Kwong Weng [1997] 1 SLR(R) 316.
 * Tan Eng Hong v Attorney-General [2012] 4 SLR(R) 476 (C.A.).
 * Lee Keng Guan v Public Prosecutor [1977–1978] SLR(R) 78.
 * Middleton v Texas Power and Light Company 249 US 152 (1919)

Articles

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