THE "LIMITED" ASSISTANCE OF FOREIGN JURISPRUDENCE: LESSONS FROM INDIA AND THE UNITED STATES ON SEXUALITY AND GOVERNANCE.

• Author: Lam, Magdalene

INTRODUCTION

At the heart of Singapore's political identity lies a paradox: Singapore's reliance on liberal foreign policy (1) while maintaining an insular, conservative socio-political landscape. (2) This inconsistency forms a thorn in Singapore's otherwise pristine image as a "model country," (3) with close economic partners expressing concern over the city-state's respect for human rights. In important respects, the political and legal identities of LGBTQ+ persons best illustrate this political paradox. In its 2019 motion for a non-legislative resolution on the Partnership and Cooperation Agreement between the European Union and Singapore, the European Committee on Foreign Affairs expressed its concern over the lack of protection afforded to fundamental freedoms by the Singaporean legal system. The consent motion called for the Singaporean government to "abolish the laws penalising sexual relationships between people of the same gender." (4) Alongside pressure from international partners, the push for abolition of anti-sodomy laws in Singapore finds critical support in internal LGBTQ+ movements as well. (5) The increasing willingness of Singaporean youth to challenge conservative ideology, which forms the foundation of the nation-state's "cohesive identity," (6) suggests that Singapore's anti-sodomy law may be ripe for repeal.

However, little progress has been made on this front. Section 377A of the Penal Code (hereinafter "377A"), (7) which criminalizes acts of "gross indecency" between men, has withstood successive constitutional challenges in the Supreme Court of Singapore. (8) In the 2020 case Ong Ming Johnson v. Attorney-General, (9) the High Court refused to return a favorable judgment for the plaintiff, emphasizing its lack of institutional competence in adjudicating matters of policy. (10) This is consistent with the "understanding of separation of powers as deference in Singapore," whereby a presumption of constitutionality is grounded "on claims of functional division, superior expertise and democratic legitimacy." (11) Nonetheless, the Ong Ming Johnson ruling stands in sharp contrast to the assertive role played by both American and Indian courts in abolishing anti-sodomy laws. (12) While repeal remains a theoretical possibility, inaction by Parliament imposes a greater responsibility on the Supreme Court to enact change. (13) Against this backdrop, this Note argues that a reconceptualization of 377A challenges is necessary, and aims to achieve two objectives.

First, this Note contextualizes the arguments advanced in two seminal decisions that successfully struck down local anti-sodomy laws in the United States and India, Lawrence v. Texas (14) and Navtej Singh Johar v. Union of India, (15) and applies them in a Singaporean context. The comparison across the three jurisdictions is crucial because of the historical, sociological, and legal similarities between Singapore, India, and the United States. Nonetheless, because of the differences in substantive provisions of law across jurisdictions, the Lawrence and Navtej strategies will be distilled insofar as they remain applicable within Singapore's legal system. Part II of this Note begins with a brief overview of the state of law in Singapore. Part III provides comparative analyses of legal challenges to anti-sodomy laws in the United States and India. Besides similar textual protection afforded to personal liberty and equal protection across these jurisdictions, (16) temporal similarities between the American, Indian, and Singaporean approaches to safeguarding LGBTQ+ equality strengthen the case for drawing inspiration from foreign jurisdictions.

Second, this Note argues that the failure of previous challenges, based on traditional understandings of Singaporean judicial review, should not hinder future opportunities for abolition. A reconceptualized approach to striking down 377A will be provided in Part III, with its effectiveness assessed against the High Court's recent pronouncements in Ong Ming Johnson. Although the rigidity of "hard law" may be difficult to counteract, past cases do not militate a future constitutional strike-down, as a textual reading of the Constitution does not prove, prima facie, that the arguments laid down in Part II of this Note are flawed. Part III therefore argues that the hindrance to abolition of 377A lies in the reluctance of judges to engage in dynamic interpretation and to deviate from originalist judicial attitudes when adjudicating on controversial legislation. Ultimately, this Note proposes holistic reform as a strategy to striking down 377A.

1. State of 377A Prior to Ong Ming Johnson

   As a British colony, Singapore's legal system was heavily influenced by legislative developments in the West. (17) The passage of the Labouchere Amendment in Britain, which criminalized "acts of gross indecency" between men, laid the foundation for anti-sodomy laws in Singapore. Singapore's Labouchere equivalent, 377A, came into being in 1938 via its inclusion in the Straits Settlements Penal Code. (18) The provision states:

   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. (19) Two key features stand out. First, contravention of 377A requires an "act of gross indecency." This term has been interpreted without reference to legal norms and based solely on the "customs and morals" of society that inform the perception of said acts by "any right thinking member of the public." (20) Second, 377A may be violated regardless of whether participants have consented to the act, and regardless of where it was performed. (21) The absurdity of 377A will be discussed in later sections of this Note. Suffice to say, this introduction merely wishes to flag the absurdity of 377A's encroachment upon private choices made by Singaporean citizens.

   These features therefore present corresponding problems. First, if an "act of gross indecency" is to be determined against developments in society's moral values, the increasing acceptance of LGBTQ+ relations (22) should render 377A obsolete. Second, the decision to criminalize sodomy, regardless of whether consent has been given, presents an affront to the values of personal choice and autonomy. Paternalism, propagated by 377A, abrogates the choice afforded to individuals to engage in sodomy, even though engaging in the act may increase one's overall happiness and self-fulfillment. (23) These underlying concerns have spurred successive challenges to the constitutionality of 377A, which must be studied before a recontextualized challenge to 377A can be proposed.

   1. Tan Eng Hong v. Attorney-General (2013) in the High Court

      First, in Tan Eng Hong v. Attorney-General, (24) the plaintiff (Mr. Tan) brought a challenge against 377A on the basis that the provision contravened Articles 9 and 12 of the Singapore Constitution. (25) Article 9 safeguards the right to life and liberty, while Article 12 guarantees equal protection. (26) Mr. Tan had been arrested for engaging in oral sex with another man in a public restroom. (27) As the law stood, the High Court had only interpreted Article 9's right to life and liberty to preserve an individual's freedom from unlawful incarceration, (28) with an express distinction between the meaning of "liberty" under the Singaporean Constitution and that of other jurisdictions. (29) Further, a provision could withstand an Article 12 equal protection challenge only if it passed the "reasonable classification" test expressed in Public Prosecutor v. Taw Cheng Kong: (30) (1) the law must differentiate amongst classes of individuals, (2) the differentiation must be founded on an "intelligible differentia," and (3) the basis of differentiation must bear reasonable relation to the object of the statute. Criteria (2) and (3) were of primary concern in Tan Eng Hong: (31)

      Mr. Tan challenged 377A on two levels. First, 377A contravened Article 12(1) as its differentia was "arbitrary and unreasonable" (32) and bore no rational relation to the object of the statute. 377A, Mr. Tan argued, penalized men for "immutable attribute[s]" (33) and did not "reduce[e] under-age, non-consensual or public sex." (34) Second, 377A contravened Art. 9(1) by standing contrary to the "fundamental rules of natural justice." (35) Mr. Tan premised his latter argument on the belief that laws failing to comport with natural justice are void. (36) Since 377A "undermines access to justice" in cases involving non-consensual sexual contact and/or domestic abuse, 377A contravenes natural justice principles by depriving victims of legal protection ("rule of law" argument). (37) Further, extending his characterization of sexual orientation as a "natural and immutable attribute," Mr. Tan argued that penalization based on one's sexual preferences is "absurd and entirely arbitrary" ("absurdity" argument). (38)

      The court remained unpersuaded by these arguments. First, contrary to Mr. Tan's Article 12(1) propositions, the court found that the object of 377A was to "enable the prosecution of acts of gross indecency by male homosexuals both in public and in private because such acts are not acceptable or desirable in Singapore society." (39) Hence, 377A's differentia between heterosexuals and non-heterosexuals bore "rational relation" to its object. Further, the court rejected Mr. Tan's submission that this object was unsound, as it relied on a general "separation of powers" argument that justified the delegation of political powers to Parliament. (40) In essence, the High Court deemed Parliament, by virtue of its institutional competence, lawfully empowered to legislate on controversial issues.

      Second, the court endorsed Lord Diplock's dicta in Haw Tua Tau, which suggests that...