Summary of Submissions for the Attorney-General in OS 1135/2012

1 The Plaintiffs seek an order by the Court to the effect that section 377A of the Penal Code (Cap 224, 2008 Rev Ed) (“s 377A”) is unconstitutional under Art 12 of the Constitution of the Republic of Singapore (“the Constitution”), which protects equality under the law.

2 In its previous judgment in Tan Eng Hong v Attorney-General [2012] 4 SLR 476 at [185], the Court of Appeal addressed a similar application for a declaration that s 377A is unconstitutional. The Court framed the issues for argument in that matter as follows: (a) whether the classification in s 377A is founded on an intelligible differentia; and (b) whether the differentia bears a rational relation to the object sought to be achieved by s 377A.

3 The Attorney-General argues that s 377A is constitutional under Art 12 for the following reasons: (a) the classification in s 377A is founded on an intelligible differentia between men and women; (b) as there is a strong presumption of constitutionality attaching to legislation, the Plaintiffs have the burden of showing that the differentia bears no rational relation to the object of s 377A. They have not done this; and (c) in any event, the differentia underlying s 377A bears a rational relation to its object in the areas of preserving (i) public morality and (ii) public health.

4 We have submitted that the differentiation in s 377A is simply between men and women. Section 377A does not apply specifically to men who identify as homosexual. It equally applies to those who identify as heterosexual or bisexual, so long as the relevant acts are committed.

5 The Attorney-General is relying on the presumption of constitutionality of legislation, which is an entrenched legal principle in Singapore. This presumption arises from the separation of powers between the legislature and the judiciary, and it recognises that decisions that require the balancing of multiple policy considerations are best left to the democratically-elected legislature. As a result, the Court must assume any state of facts at the time of statutory enactment, within reason, that would justify the classification and the Plaintiffs must disprove all such facts.

6 In addition, the Attorney-General submits that s 377A has the clearly-stated purpose of reflecting public morality. This is based on the fact that the majority of Singaporeans still find homosexual acts unacceptable, as reflected in Parliamentary debates. Although Parliament has chosen to retain the wording of s 377A which does not encompass homosexual acts between females, this decision strikes a legitimate 2 balance between the moral norms of the majority and the interests of homosexuals. As the objective of s 377A to reflect public morality is still substantially advanced even with this differentiation, the differentiation is not of itself unconstitutional.

7 We have further argued that the Court should find s 377A constitutional under Art 12 of the Constitution because there is a scientifically-established difference between the public health risks associated with sex between men and sex between women. The former poses a substantially higher likelihood of transmission of sexually transmitted infections such as Human Immunodeficiency Virus (“HIV”), as well as posing other health risks. By contrast, there have been no documented cases of HIV transmission arising from sex between women and the health risks associated with such acts are generally much lower.

8 We have added that the evidence raised by the Plaintiffs that they face difficulties as homosexual persons in Singapore are not sufficient grounds to discharge the burden of showing that s 377A is unconstitutional under Art 12.

Note: The proceedings are to be heard in Chambers as is normal for such applications. An open court hearing is not normally held as there are no witnesses to be questioned, and the arguments are all legal in nature.

* * *