User:Sgconlaw/Tan Eng Hong v. Attorney-General

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Tan Eng Hong v. Attorney-General is a 2013 decision of the High Court of Singapore by Justice Quentin Loh ("Loh J"). The plaintiff, Tan Eng Hong, challenged the constitutionality of section 377A of the Penal Code, which criminalises acts of gross indecency between males. One of the grounds of challenge was that section 377A was void for inconsistency with Article 12(1) of the Constitution of Singapore, which guarantees a citizen’s right to equality and equal protection of the law. This was ultimately rejected by Loh J. In his judgment, Loh J referred to the relevant portions of his decision in the case of Lim Meng Suang v. Attorney-General ("Lim Meng Suang"),  which concerned a similar challenge to section 377A.

In Lim Meng Suang, the learned judge noted that Article 12(1) does not require that all persons are to be treated equally, but that all persons in like situations are to be treated alike. A law that differentiates between individuals will not be in breach of Article 12(1) if it satisfies the "reasonable classification" test. In the present case, Loh J clarified that this test was to be applied for all constitutional challenges involving Article 12(1). The "reasonable classification" test comprises two stages. The first stage requires that there be an intelligible differentia underlying the classification adopted in the legislation, and the second stage requires that this differentia bears a rational relation to the object sought to be achieved by the legislation.

Having determined that the object of section 377A was to criminalise acts of gross indecency between males, Loh J found a complete coincidence between the differentia adopted, which covered only acts of gross indecency between males, and the object of section 377A. Thus the “reasonable classification” test was satisfied and section 377A was not in breach of Article 12(1).

However, Loh J noted that even if the "reasonable classification" test was satisfied, a piece of legislation could still be struck down if its object was illegitimate. Reiterating part of his reasoning in Lim Meng Suang, Loh J stated that the object of section 377A was not illegitimate, since it essentially addressed a social and public morality concern.

Lastly, Loh J held that the word "law" in Article 12(1) did not include fundamental rules of natural justice. Therefore, section 377A could not be said to be unconstitutional because it did not observe the fundamental rules of natural justice.

Facts and procedural history
On 9 March 2010, Tan and another male person were arrested for engaging in oral sex in a public toilet cubicle. Initially, Tan was charged under section 377A of the Penal Code, which criminalises acts of “gross indecency” between males. Tan challenged the constitutionality of section 377A on the ground that it was inconsistent with, among others, Article 12(1) of the Constitution. He also sought that the charge brought against him be declared void.

The section 377A charge was later substituted with a charge under section 294(a) of the Penal Code, which criminalises obscene acts in public. Although Tan pleaded guilty to this amended charge, he desired to challenge the constitutionality of section 377A nonetheless. In the Court of Appeal case of Tan Eng Hong v. Attorney-General ("Tan Eng Hong (standing)"), it was found that Tan had the necessary standing, or locus standi, to bring such a challenge.

Article 12
Article 12 of the Constitution of the Republic of Singapore guarantees to all persons equality before the law and equal protection of the law. It is entitled "Equal protection" and reads as follows:
 * 12.— (1) All persons are equal before the law and entitled to the equal protection of the law.


 * (2) Except as expressly authorised by this Constitution, there shall be no discrimination against citizens of Singapore on the ground only of religion, race, descent or place of birth in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.


 * (3) This Article does not invalidate or prohibit —
 * (a) any provision regulating personal law; or
 * (b) any provision or practice restricting office or employment connected with the affairs of any religion, or of an institution managed by a group professing any religion, to persons professing that religion.

The "reasonable classification" test
The test to determine whether any legislation is in violation of Article 12(1) of the Constitution is the "reasonable classification" test. In the Court of Appeal decision of Tan Eng Hong (standing),  V. K. Rajah JA clarified the two stages of the test to be as follows: In other words, the law in question will be in breach of Article 12(1) if the classification in the legislation is not founded on an intelligible differentia, or if the differentia does not bear a rational relation to the object of the legislation.
 * 1) Whether the classification prescribed by the legislation is founded on an intelligible differentia.
 * 2) Whether the differentia bears a rational relation to the object sought to be achieved by the legislation.

However, even if the two stages of the test are satisfied, it is still possible for a court to strike down the legislation if the object of the legislation is illegitimate (for instance, if it is capricious, absurd or unreasonable in the Wednesbury  sense).

In the present case, Loh J clarified that the “reasonable classification” test applies to all constitutional challenges based on Article 12(1) in Singapore.

Plaintiff's arguments
Counsel for the plaintiff made four arguments in support of his contention that section 377A was unconstitutional.


 * 1. The prevention and mitigation of HIV was not an object of section 377A.


 * 2. The classification adopted in section 377A:


 * (a) only went “some distance” towards securing the object of section 377A;  and


 * (b) was over-inclusive as it made criminals of family and friends of male homosexuals when they supported the latter.


 * 3. The court should apply a more stringent test than the "reasonable classification" test where the classification in a statute was based on a natural and immutable attribute.
 * 4. The object of section 377A was illegitimate.

Stage 1: Intelligible differentia
The first stage of the “reasonable classification” test requires that the classification adopted in the impugned legislation be based on an intelligible differentia. “[D]ifferentia” refers to a distinguishing feature, and “intelligible” means that this feature or “differentia” must be capable of being understood. Taken together, there must be a consistent, discernible basis of identifying the individuals who fall within the classification.

Referring to his decision in Lim Meng Suang, the learned judge held that the classification in section 377A clearly satisfied this stage. This was because its underlying differentia covered only acts of gross indecency between males, but not acts of gross indecency between males and females, or acts of gross indecency between females.

Stage 2: Rational relation
The second stage of the “reasonable classification” test requires that the differentia underlying the classification in a piece of legislation be “rationally related” to the object of the statute. This means that the classification cannot be too over- or under-inclusive, in that it either catches significantly more or significantly fewer people than is sufficient to fulfil the object of the law. In other words, the classification has to at least be "broadly proportionate" to the object of the statute.

Object of section 377A
With regard to the object of section 377A, Loh J reiterated the relevant parts of his reasoning that were previously set out in Lim Meng Suang. In Lim Meng Suang, it was stated that the object of section 377A was to respond to a prevalence of grossly indecent acts between males, whether in public or in private. This conclusion was arrived at by referring to the original objective of section 377A, as articulated by Attorney-General, Mr C. G. Howell ("AG Howell"), in the Legislative Council in 1938. AG Howell's explanatory statements in the introductory Bill were deemed to be a primary guidepost according to section 9A of the Interpretation Act.

Although the court in Lim Meng Suang noted that there was no need to refer to the October 2007 Parliamentary Debates where section 377A was discussed, it nevertheless went on to consider the debates. The court concluded that since section 377A was retained and no unusual facts or circumstances had arisen, Parliament had affirmed the original object of section 377A during the debates. Therefore, the original object behind section 377A remained valid.

Loh J’s approach to ascertaining the object of section 377A in Lim Meng Suang has been criticized by a commentator, who suggested that the inquiry into the object of section 377A should not be limited only to the original legislative purpose. Rather, the judge should also have examined the possible present day justifications for section 377A.

HIV prevention and mitigation is not an object of section 377A
In addition, counsel for the plaintiff argued that HIV prevention and mitigation should not be accepted as an object of section 377A. Therefore, the “reasonable classification” test should not be satisfied on the basis that classification in section 377A fulfilled that purpose.

Loh J accepted the argument that the object of section 377A did not include HIV prevention and mitigation. Nevertheless, he stated that this would not lead to a failure of the “reasonable classification” test. This was because the decision in Lim Meng Suang that section 377A satisfied the “reasonable classification” test was not premised on one of its purposes being the prevention of HIV. In fact, the court in Lim Meng Suang did not even make a finding as to whether the prevention of HIV was one of the purposes of section 377A.

Hence, this argument does not establish the unconstitutionality of section 377A for being inconsistent with Article 12(1).

"Some distance" towards meeting the object of section 377A
Counsel for the plaintiff argued that because the classification adopted in section 377A criminalised acts of gross indecency only between males, it did not satisfy the “rational relation” stage as it merely went “some distance” towards meeting the object of section 377A, which was to reduce under-age, non-consensual or public sex.

In support of this argument, counsel drew an analogy to an observation by the Court of Appeal in Yong Vui Kong v. Public Prosecutor  that a legislative provision which imposed the mandatory death penalty on “short-haired” drug traffickers would contravene Article 12(1). This was because the differentia employed – hair length – only went ‘”some distance” towards meeting the object of the Misuse of Drugs Act, which was to eradicate illicit drug trade.

This argument was rejected by Loh J. Contrary to the plaintiff’s argument that the object of section 377A was to reduce under-age, non-consensual or public sex, Loh J reiterated his finding in Lim Meng Suang and held that the object of section 377A was to enable the prosecution of acts of gross indecency between male homosexuals because such acts were not desirables in Singapore society. Thus, there was a complete coincidence between the differentia adopted in section 377A and the object of the provision. Accordingly, the plaintiff’s argument that the differentia in section 377A only went “some distance” toward fulfilling the object of section 377A failed.

Over-inclusiveness
With regard to the classification adopted in section 377A, the High Court in Lim Meng Suang held that it was not under- or over- inclusive, and was at the very least, “broadly proportionate” to the purpose of section 377A. This was affirmed by the court in the present case.

Nevertheless, counsel for the plaintiff raised an additional argument that section 377A was over-inclusive because family and friends of male homosexuals would be made criminals when they “supported, comforted, and encouraged” the latter. This was because under section 107(a) of the Penal Code, the offence of abetment is made out where there is “active support, stimulation or encouragement” of an offence.

Loh J disagreed with this argument. The learned judge noted that the offence of abetment applied to every abetted offence. It could not be that every law which criminalised an act was over-inclusive and hence unconstitutional simply because the law opened up the possibility that there could be others guilty of abetting the act.

Loh J postulated that the implied suggestion behind counsel’s argument was that abettors of male homosexual acts were less blameworthy than abettors of other offences. However, this was also rejected by Loh J because it pre-supposed what it sought to prove, ie, that acts of gross indecency between male homosexuals should not be an offence in the first place.

More stringent requirement than the "reasonable classification" test
Counsel for the plaintiff argued that because homosexuality is a “natural and immutable” attribute, a more stringent requirement than the “reasonable classification” test should be applied. Relying on an article by Assistant Professor Jack Lee, counsel argued that it would be "unfair to inflict legal burdens" on individuals who engaged in activities which were a consequence of immutable traits that they had no control over. Accordingly, a stricter requirement should be applied for laws prescribing classifications based on such traits so that the threshold for establishing the unconstitutionality of such laws would be lowered. This would ensure that individuals would not be penalized by such “unfair” laws unnecessarily.

In support of his proposition that a stricter test should be applied, counsel referred to foreign jurisdictions that have applied a more stringent requirement in certain circumstances. Specifically, the courts in the United States of America adopt a three-tiered scrutiny system where a more stringent requirement than a “rational relation” is applied when a classification is based on traits such as race, national origin or gender.

Moreover, counsel argued that in the absence of any Court of Appeal decision which concerned legislation differentiating between individuals based on immutable traits, the court was free to decide on a more stringent test.

These arguments were rejected by the court. Loh J noted that the argument failed simply because it could not be concluded that homosexuality is a natural and immutable attribute. He arrived at this conclusion by examining past and contemporaneous medical and scientific literature.

Even if sexual orientation were a natural and immutable attribute, the learned judge was of the opinion that a more stringent requirement should not be adopted. This was due to three reasons.

First, Loh J observed that the courts are not in a position to decide on the purported “unfairness” of legislation. This was because the Constitution provides a specific degree of latitude to Parliament to enact laws for certain conduct and to cater for the fact that there are inherent differences among individuals. This latitude is delineated by Article 12(1) of the Constitution, and the “reasonable classification” test is the test used to determine if any legislation contravenes Article 12(1). This test inherently embodies a balance between the protection of the right to equality and the autonomy afforded to Parliament to legislate within the bounds of the Constitution.

Second, Loh J was also of the opinion that the more “zealous” approach adopted by foreign jurisdictions ought not to be followed as their decisions to adopt this approach was based on legal and extra-legal social, economic, cultural and political considerations which were unique to those jurisdictions. Moreover, the “strict scrutiny” test as applied by US courts in cases such as Korematsu v. United States had also been rejected by the High Court in Lim Meng Suang.

Third, while Loh J recognized that there had been no Court of Appeal decision on the constitutionality of legislation differentiating between individuals based on immutable traits, this did not mean that a separate and more stringent test could be applied in respect of such legislation. The court referred to the decisions in Nguyen Tuong Van v. Public Prosecutor and Yong Vui Kong v. Public Prosecutor which clearly indicated that the applicable test for constitutional challenges based on Article 12(1) was the “reasonable classification” test.

As such, Loh J rejected the Plaintiff's argument that a more stringent requirement should be applied when the classification in a piece of legislation is based on immutable traits.

Justifications provided in Lim Meng Suang
Even if the “reasonable classification” test is satisfied, the court can strike down a piece of legislation if its object is illegitimate. Loh J reiterated his stance in Lim Meng Suang that the object of section 377A cannot be said to be illegitimate. This was because there were some justifications behind criminalising only male homosexual conduct.

In Lim Meng Suang, two main justifications were provided. First, the fact that the common law has for a long time only proscribed male and not female homosexual conduct implies that there must be some basis for this practice. Thus, the courts should not be too quick to dismiss such a practice which has persisted and developed over time. This justification has been criticised on the basis that it fails to take into account the fact that such historical practices have been invalidated by many common law systems. There was no reason why the court focused only on the past practices of these common law systems and failed to engage with their present state of development.

The second justification was that some portions of Singapore society today still hold certain deep-seated feelings with regard to procreation and family lineage. This has been criticized as well because ‘the fact that many Singaporean parents would want their children to get married and continue the family line does not necessarily mean that they would want to jail those who do not'.

Argument raised in the present case: Homosexuality is not an incontrovertible immorality
In the present case, counsel for the plaintiff argued that the object of section 377A was unsound and illegitimate to the extent that it advanced the proposition that male homosexuality was immoral. This was because, according to him, homosexuality is not an incontrovertible immorality. Rather, the morality of homosexuality is fiercely contested, with some religious personalities have even supporting the decriminalisation of homosexual activity.

In rejecting this argument, Loh J reasoned that Parliament is not confined to legislating only where the morality of the issue is uncontroversial. Rather, it has the popular mandate to enact laws surrounding controversial issues, subject to constitutional safeguards. Thus, Parliament is entitled to prefer one view over the other where the morality of the issue is debatable, and legislate accordingly.

The learned judge noted that his decision might have been different if it was clear and undisputable that male homosexuality is not considered to be immoral by Singapore society. However, this was not the argument raised by counsel.

Fundamental rules of natural justice
Counsel for the plaintiff argued that the word “law” in Article 12(1) of the Constitution, like the world "law" in Article 9(1), includes the fundamental rules of natural justice. In support of his argument, counsel relied on Lord Diplock’s decision in Ong Ah Chuan v. Public Prosecutor, which stated that references to “law” within Articles 9(1) and 12(1) must include fundamental rules of natural justice. Therefore, an act of Parliament which deprives a person of his or her right to equal protection of the law under Article 12(1) must comply with the fundamental rules of natural justice.

However, Loh J cautioned that any reliance on Lord Diplock’s statement had to be treated with some care because of the difference in how "law" is used in Articles 9(1) and 12(1).

Article 9(1) guarantees the protection of life and personal liberty. At the same time, it expressly allows for the deprivation of a person’s life or personal liberty as long as this deprivation is sanctioned by an existing law. Hence, it is logical for “law” in Article 9(1) to include the fundamental rules of natural justice, such that any legislation which seeks to deprive a person of his life or personal liberty should comply with the rules of natural justice. Otherwise, the mere passing of a law by Parliament would suffice to deprive a person of his life or personal liberty.

In contrast, “law” in Article 12(1) refers to a substantive right to “equality before the law” and “equal protection of the law”. Whether or not a law is in breach of the standard of equality under Article 12(1) depends on whether it satisfies the “reasonable classification” test. If it satisfies the “reasonable classification” test, it cannot be unconstitutional for violating the fundamental rules of natural justice, whose content may have nothing to do with equality. If it fails the “reasonable classification” test, any incidental inconsistency with natural justice is immaterial. In other words, Article 12(1) only provides for the right to equality and should not be viewed as providing an additional recourse to the fundamental rules of natural justice. Thus, to impute such an additional layer of protection to Article 12 would be superfluous or untenable.

Therefore, it would be incorrect to conclude that "law" in Article 12(1) includes the fundamental rules of natural justice.