Report: Analyzing the Debate Surrounding the Repeal of Section 377A

This report critically examines the ongoing debate regarding the repeal of Section 377A of the Singapore Penal Code, which criminalizes sexual intercourse between men. It provides an overview of the legal history, tracing its origins to the UK and its implementation in Singapore. The report analyzes the arguments for and against repeal, including constitutional challenges based on Articles 9 and 12, as well as the right to privacy and dignity, drawing comparisons to relevant cases such as Lim Meng Suang and Another v Attorney General and Navtej Singh Johar & Others V Union Of India. It also explores the influence of religious groups and the role of judicial intervention in the matter. Furthermore, the report considers international perspectives and the evolving legal landscape, ultimately concluding that Section 377A should be repealed due to its violation of human rights and its potential to demean individuals. The report includes references to relevant legislation, cases, and websites to support its analysis.

Running head: Repeal of Section 377A 1
Repeal of Section 377A
Name of Student
Name of Institution
Name of Tutor

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Introduction
Section 377A of the Singapore Penal Code criminalises any act of sexual intercourse
between men irrespective of whether it is consensual or not. It is inconsequential whether the
act was done in private or public. This provision has its genesis in the United Kingdom
Criminal Law Amendment Act of 1885, section 11 (Privacy International, n.d) and came to
Singapore in 1938 through section 3 of the Penal Code (Amendment) Ordinance of 1938.
The issue for consideration in this report is whether section 377A o the Singapore
Penal Code should be repealed or not.
Lim Meng Suang and Another v Attorney General [2014] SGCA 53
It concerned the alleged that section 377A of the Penal Code was not consistent with
the Constitution. The issue was whether it was consistent with various provisions of the
Constitution including Article 9 and 12. On whether it was inconsistent with Article 9 the
Court found in the negative on the grounds that Article 9 dealt with life or personal liberty
and could not be interpreted beyond that. On whether the provision was inconsistent with
Article 12 of the Constitution again the Court held in the negative. The court applying the
reasonable classification test found the provision not to be inconsistent with Article 12. Also,
sex or sexual orientation was not among grounds upon which discrimination are prohibited
under Article 12.
Navtej Singh Johar & Others V Union Of India Secretary Ministry Of Law And Justice
W.P. (Crl) No. 76 Of 2016 (Indian Case)
The Petitioner questioned the consistency of section 377 of the Indian Penal Code
with the Indian Constitution, which like section 377A of the Singapore Penal Code,
criminalised sexual intercourse between male persons or persons of the same gender. Unlike

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in Singapore Court in Lim Meng Suang and Another v Attorney General the Supreme Court
of India held the provision to be unconstitutional for being inconsistent with the constitution.
It found the provision to breach right to privacy and dignity.
Right to Privacy
There is no specific provision in the Singapore Constitution explicitly providing for right to
privacy (Privacy International, 2015). The protection of privacy is rather under various
legislations such as Computer Misuse and Cybersecurity Act. Also, Singapore has not ratified
the International Covenant on Civil and Political Rights which has an Article on right to
privacy. That is Article 17. Internationally, right to privacy is further provided in the
Universal Declaration of Human Right 1948 at its Article 12. However, it is just a declaration
and not binding on parties including Singapore. Also right to privacy is not one of the articles
of the Declaration which have gained the weight of customary international law (Sheng,
2015).
Singapore is not alone in this. Indian Constitution, also, does not have explicit
provision on right to privacy but still its Supreme Court in Navtej Singh Johar case held
section 377 of the Indian Penal Code to be unconstitutional for violating right to privacy. The
Court interpreted Article 21 of the Indian Constitution to also include right to privacy.
Singapore Court in Lim Meng Suang and Another case admitted that Article 9 of the
Singapore Constitution was derived from Article 21 of the Indian Constitution and as such
the Singapore Court should import the Indian interpretation. In Dudgeon v United Kingdom
[1981] 4 EHHR 149 right to privacy was defined as right to be left alone. Various courts in
different jurisdictions have emphasised the importance of privacy in intimate relationship
such those criminalised under section 377A of the Penal Code. Some of the decisions include
National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and

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Others 1998 (12) BCLR 1517 (SA) where it was held that every person has a right to privacy
in their intimate relationship, Obergefell, et all, v Hodges, Director, Ohio Department of
Health, et al 576 US (2015) where it was held that the law should not criminalise personal
relationships, such gay relationship. However, it should be noted as was held in Lim Meng
Suang and Another case the foreign decisions were based on the existing factors existing in
those jurisdictions.
Right to Dignity
The Singapore Constitution does not have a specific provision on right to dignity.
However, in the Indian case the right to dignity was held to be the cornerstone to other rights
and without which the other rights will come falling. The Indian Constitution also does not
have a specific provision on dignity but the Court still held the provision for being
unconstitutional for breaching dignity right. The right was interpreted to be under Article 21
of their Constitution. The said provision provides for right to privacy and liberty. This
provision is similar to Article 9 of the Singapore Constitution and the Indian interpretation
can be imported to Singapore. In Delwin Vriend and Others v Her Majesty the Queen in
Right of Alberta and Others [1998] 1 SCR 493 the Supreme Court of Canada considered
criminalisation of lesbian and gay acts and their effect on dignity. It held that it lowered their
self-worth and self-esteem and therefore affected their dignity as persons.
Religious Influence and Judicial Intervention
Religious groups such as the National Churches of Singapore and Catholic
Archbishop are leading in opposing the repeal of section 377A of the Penal Code (Koh,
2018). However, religious considerations should be excluded when determining whether to
repeal the said provision. Singapore is a secular state. It should be noted that majority of

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states have repealed provisions of their laws which criminalised lesbian, gay and transgender
and Singapore should not be left behind (Koh, 2018).
In Singapore the courts have leaned extensively to separation of powers between the
judiciary and the legislature. In the Court’s interpretation of a statute it endeavours not to be a
super legislature making laws from the bench (Li-Ann, 2018). Therefore, Singapore Courts
are not likely to adopt Navtej Singh Johar & Others case.
Conclusion
Section 377A of the Penal Code should be repealed for the reason that it violates right
to privacy (Human Rights Watch, 2008) and demeans the victims. It originated from Britain
but they have since abandoned it and are supporting initiative towards its repeal in other
jurisdictions (Jain, 2018).

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References
Websites
Human Rights Watch (2008 December 17). The Origins of “Sodomy” Laws in British
Colonialism. Retrieved from
https://www.hrw.org/report/2008/12/17/alien-legacy/origins-sodomy-laws-british-
colonialism#
Jain, S. (2018 April 18) Theresa May ‘Deeply Regrets’ Colonial Anti-LGBT Laws: Support
States and Organisations Working for LGBT Rights in the Commonwealth. Retrieved
from https://www.hrw.org/news/2018/04/18/theresa-may-deeply-regrets-colonial-
anti-lgbt-laws\
Koh, T. (2018 September 24). There is a Difference Between a Sin and a Crime. Retrieved
from https://www.straitstimes.com/singapore/section-377a-science-religion-andthe-
law
Li-Ann, T. (2018 October 7) A Contemporary, Important Law. Retrieved from
https://www.straitstimes.com/opinion/section-377a-a-contemporaryimportant-law)
Sheng, H. (2015 February 28). Does Singapore Abide By Any International Laws Such as
Universal Declaration of Human Rights? Retrieved from
https://www.quora.com/Does-Singapore-abide-by-any-international-laws-such-as-
Universal-Declaration-of-Human-Rights
Legislation
Singapore Constitution
Indian Constitution
International Covenant on Civil and Political Rights
Universal Declaration of Human Right 1948
Cases

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Delwin Vriend and Others v Her Majesty the Queen in Right of Alberta and Others [1998] 1
SCR 493
Dudgeon v United Kingdom [1981] 4 EHHR 149
Lim Meng Suang and Another v Attorney General [2014] SGCA 53
National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and
Others 1998 (12) BCLR 1517
Navtej Singh Johar & Others V Union Of India Secretary Ministry Of Law And Justice W.P.
(Crl) No. 76 Of 2016
Obergefell, et all, v Hodges, Director, Ohio Department of Health, et al 576 US (2015)