Section 377A constitutional challenge

The Section 377A constitutional challenge refers to the series of legal actions brought between 2010 and 2022 seeking to have Section 377A — the colonial-era provision criminalising "gross indecency" between men — declared inconsistent with the Constitution of Singapore. Four separate plaintiffs took the matter to court over more than a decade: Tan Eng Hong, gay couple Gary Lim and Kenneth Chee, disc jockey Johnson Ong, LGBT advocate Bryan Choong and retired doctor Roy Tan. None succeeded in having the provision struck down, but the final ruling, in Tan Seng Kee v AG (2022), declared it "unenforceable in its entirety" and set the stage for its legislative repeal that same year (see main article: Section 377A of the Penal Code (Singapore)).

Tan Eng Hong's challenge (2010–2014)

On 24 September 2010, human rights lawyer M Ravi filed the first constitutional challenge on behalf of his client Tan Eng Hong (who later came out publicly under his given name, Ivan Tan), who had originally been charged under Section 377A for oral sex with another consenting adult male in a locked public toilet cubicle. To avoid a precedent-setting constitutional hearing, the Attorney-General's Chambers (AGC) withdrew the 377A charge and substituted a lesser charge under Section 294(a) of the Penal Code ("obscene act in a public place"), to which Tan pleaded guilty.

The AGC then argued Tan no longer had standing (locus standi) to challenge a law he was not being prosecuted under. High Court judge Lai Siu Chiu agreed that Tan had standing in principle, but found "no real controversy" requiring the court's attention. On appeal, the Court of Appeal — Justices VK Rajah, Andrew Phang and Judith Prakash — reversed this on 21 August 2012 in a landmark ruling, finding an arguable case that Section 377A's continued existence affected "a not insignificant portion of our community in a very real and intimate way", and that a citizen need not wait to be prosecuted before asserting constitutional rights.

A separate couple, Gary Lim and Kenneth Chee, together fifteen years, filed their own challenge shortly after, both to broaden the case's public support and to present a more relatable face to the campaign; their case and Tan's were eventually heard together.

High Court and Court of Appeal rulings (2013–2014)

Justice Quentin Loh dismissed both the Lim/Chee and Tan Eng Hong challenges in the High Court in April and October 2013 respectively, holding that Section 377A's purpose — to express societal disapproval of male homosexual conduct — remained unchanged since 1938 and was not "so patently wrong" as to be an illegitimate basis for classification under the law.

On appeal, a five-judge Court of Appeal (Justices Andrew Phang, Belinda Ang and Woo Bih Li) upheld Section 377A's constitutionality on 28 October 2014, applying the "reasonable classification test" under Article 12 of the Constitution. The court found the law's classification — men who commit acts of gross indecency with other men — rested on an "intelligible differentia" bearing a rational relation to its objective of enforcing societal morality, and noted that Article 12 does not list "sex" or "sexual orientation" among its protected grounds. The judges acknowledged the "vexing difficulty" of the case but concluded any remedy "lies, if at all, in the legislative sphere."

Second wave: Ong, Choong and Roy Tan (2018–2020)

India's Supreme Court decriminalised gay sex on 6 September 2018, prompting Ambassador-at-Large Tommy Koh to publicly urge Singapore's gay community to "bring a class action" against Section 377A. Three fresh, separately represented challenges followed within weeks: DJ Johnson Ong (represented by Eugene Thuraisingam and Suang Wijaya), LGBT advocate Bryan Choong (represented by Harpreet Singh Nehal and the Peter Low & Choo firm), and retired GP Roy Tan (represented by M Ravi).

Each pursued a different legal theory. Choong's team relied on documents from the United Kingdom's National Archives, declassified in 2014–2016, showing Section 377A was enacted in 1938 in response to a wave of European colonial officials' involvement with male prostitution, arguing the law's effect — criminalising all male homosexual conduct — was now far broader than its original, narrow purpose, making it unconstitutionally "overly broad".

Ong's team argued the law was "absurd and arbitrary" because it criminalised an immutable trait, presenting expert evidence from six medical professionals (three called by each side) who broadly agreed sexual orientation could not be wilfully changed, though disagreed on how much culture and choice contributed to it. Roy Tan's team argued the Government's policy of non-enforcement made the law's interaction with other statutes — such as the mandatory duty to report offences under Section 424 of the Criminal Procedure Code — arbitrary and therefore inconsistent with Article 9 of the Constitution.

The AGC's response, delivered in November 2019, rested on the position that repeal or retention was "a deeply divisive socio-political issue" for Parliament, not the courts, to resolve; that the 2014 Court of Appeal ruling remained binding; and that Section 377A was not "absurd" in the constitutional sense, since "many reasonable people" still saw it as morally justified.

High Court dismissal (2020)

On 30 March 2020, Justice See Kee Oon dismissed all three challenges, holding the 2014 Court of Appeal ruling remained binding and that none of the fresh evidence or arguments displaced it. He found no scientific consensus that sexual orientation was immutable, said the courts were not the forum to resolve that debate, held that Section 377A was intended for general application rather than narrowly targeting male prostitution, and characterised complaints about the law's enforcement (as opposed to its constitutionality) as a matter for administrative, not constitutional, review. All three plaintiffs appealed.

Court of Appeal ruling: Tan Seng Kee v AG (2022)

The three appeals — by Tan Seng Kee (Civil Appeal No 54 of 2020), Ong Ming Johnson (No 55 of 2020) and Choong Chee Hong (No 71 of 2020) — were consolidated and heard on 25 January 2021 before a five-judge panel: Chief Justice Sundaresh Menon and Justices Andrew Phang, Judith Prakash, Tay Yong Kwang and Steven Chong. Judgment, reported as Tan Seng Kee v Attorney-General and other appeals [2022] SGCA 16, was delivered on 28 February 2022.

What the court said it was, and was not, deciding

The judgment opens by narrowing the scope of the appeals. At [2]–[4], the court stated plainly that the case was "not about whether s 377A should be retained or repealed, that being a matter beyond our remit", nor about "the moral worth of homosexual individuals" — quoting the Prime Minister's 2007 description of them as "part of our society" and "our kith and kin" — nor about "the fundamental nature of sexual orientation (whether immutable or not), which is an extra-legal question well beyond the purview of the courts".

The court further observed that litigation is, by nature, "a zero-sum, adversarial process with win-lose outcomes", whereas "the political process... seeks to mediate", making Parliament rather than the courts the more natural forum for resolving "highly contentious societal issues" [3]–[4].

The "Anterior Question" and substantive legitimate expectation

Before reaching the constitutional arguments under Articles 9, 12 and 14, the court held it first had to resolve what it called the "Anterior Question": what legal effect, if any, attached to public representations made by successive Attorneys-General — most explicitly by then-Attorney-General Lucien Wong in 2018 — that Section 377A would not be enforced against consenting adult men acting in private [116].

The court found that AG Wong's statements engendered a substantive legitimate expectation (a doctrine it recognised only in this limited context, citing English authority in Ex parte MFK Underwriting Agents Ltd [119]) that the Public Prosecutor would not prosecute such conduct [146]–[147].

Rather than confine that protection narrowly to the facts of the 2018 statements, the court went further, holding at [149] that:

"...we answer the Anterior Question by holding that s 377A is unenforceable in its entirety, unless and until the AG of the day provides clear notice that he, in his capacity as the PP: (a) intends to reassert his right to enforce s 377A proactively by way of prosecution; and (b) will no longer abide by the representations made by AG Wong in 2018..."

The court clarified at [150] that this also meant related offences — such as the duty to report under Section 424 of the Criminal Procedure Code or Section 119/176 of the Penal Code — could not be prosecuted where the underlying conduct was a Section 377A offence, though it expressly preserved the police's right to investigate such conduct and the Public Prosecutor's right to prosecute conduct falling outside this protected class, such as acts committed in public [150].

Because the appellants therefore no longer faced "any real and credible threat of prosecution", the court held at [153] that they lacked standing (locus standi) to bring their constitutional challenges, so its remaining discussion of Articles 9, 12 and 14 was, by its own description, "purely obiter" [153].

Obiter discussion of Articles 9, 12 and 14

Although not required to decide the constitutional questions, the court set out its provisional views at length:

• Article 9 (life and personal liberty): The court rejected the argument, made by counsel for Ong and Tan, that a person's sexual identity itself falls within the "life or personal liberty" protected by Article 9(1), holding this would require reading an unenumerated substantive right into the Constitution, which courts have no power to do [244]–[245].
• Article 12 (equal protection): On whether Section 377A's classification of male-male "gross indecency" survives the "reasonable classification" test, the court canvassed two competing approaches from its own prior case law — the narrower Lim Meng Suang (Court of Appeal, 2014) approach and the more searching Syed Suhail bin Syed Zin v AG (2021) approach — and noted that, depending on how broadly the legislative object of Section 377A is framed (narrowly, as targeting only male prostitution, or broadly, as expressing general disapproval of homosexual conduct), the provision could be found either constitutional or unconstitutional under Article 12 [318]–[324]. Having already disposed of the case via the Anterior Question, the court expressly declined to choose between the two approaches or to reach a concluded view [329].
• Article 14 (freedom of expression): The court likewise declined to find that Section 377A had an unconstitutional "chilling effect" on gay-rights advocacy, again on an obiter basis.

The judgment's conclusion, at [330]–[331], restates that the "political compromise" struck by the Government in 2007 and "echoed and elaborated on" by AG Wong in 2018 justified holding the entirety of Section 377A unenforceable, and made no order as to costs "given the unusual nature of these proceedings [and] the important questions of public interest that were raised".

Reaction and legal analysis

The ruling drew a mixed response. M Ravi, representing Roy Tan, called it a "partial but significant victory". The other appellants and most LGBT organisations, including Pink Dot SG, were disappointed that the court stopped short of a constitutional ruling. Legal academics — including Marcus Teo (NUS) and Benjamin Joshua Ong and Eugene Tan (SMU) — noted the ruling gave gay men clear practical protection from prosecution while leaving Section 377A's underlying constitutionality formally unresolved, meaning a future Attorney-General could, in theory, revive the threat of prosecution by giving notice of a change in policy.

Former Chief Justice Chan Sek Keong, who was not a party to the case, published a lengthy academic critique in September 2022 arguing the Court of Appeal's reasoning departed from orthodox legitimate-expectation doctrine in several respects — including that a representation limited to non-enforcement "in private" should not, on ordinary principles, extend to protect conduct beyond that scope — and that the court could and should have gone further to find Section 377A unconstitutional as under-inclusive class legislation.

Roy Tan separately sought a mandatory order compelling the Cabinet to table a repeal Bill in Parliament; he withdrew this application in March 2022 after the AGC advised it was "plainly and obviously unsustainable in law" under the doctrine of separation of powers, noting Parliament's own repeal process was by then already under way.

Effect on the eventual repeal

The Government cited the "unenforceable in its entirety" ruling directly as a reason for proceeding with repeal: Law Minister K Shanmugam and the Attorney-General advised Cabinet that a future legal challenge carried "a significant risk" of Section 377A being struck down outright on equal-protection grounds, and that it would be "unwise" for Parliament to leave that risk unaddressed.

Prime Minister Lee Hsien Loong announced the repeal on 21 August 2022; Parliament passed the repealing Bill, together with a constitutional amendment shielding the definition of marriage from similar litigation, on 29 November 2022. Home Affairs and Law Minister K Shanmugam explicitly cited the judgment's discussion of the Article 12 "reasonable classification" test during the parliamentary debate as evidence of a "real risk" of a future successful challenge (see main article: Parliamentary debate over Bills to repeal Section 377A and amend Constitution to protect definition of marriage from court challenges). Full coverage of the repeal itself is at the main article, Section 377A of the Penal Code (Singapore).

See also

• Section 377A of the Penal Code (Singapore)
• Parliamentary debate over Bills to repeal Section 377A and amend Constitution to protect definition of marriage from court challenges
• Controversy over scope of Section 377A before and after repeal of former Section 377

Acknowledgements

Based on original research by Roy Tan; condensed and restructured for the current article.