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Singapore Academy of Law Judgment (Unreported and Reported)
Lim Meng Suang and another v Attorney-Generaland another appeal and another matter
[2014] SGCA 53

Suit No:   Civil Appeals Nos 54 and 125of 2013 and Summons No 3664 of 2013
Decision Date:   28 October 2014
Court:   Court of Appeal
Coram:   AndrewPhang Boon Leong JA, Belinda Ang Saw Ean J and WooBih Li J
Counsel:   Deborah Barker SC, Ushan Premaratne and Ng Junyi(KhattarWong LLP) for the appellants in Civil Appeal No 54 of 2013; M Ravi(L F Violet Netto) for the appellant in Civil Appeal No 125 of 2013; AeditAbdullah SC, Seow Zhixiang, Neo Xiulin Sherlyn, Teo Siqi and JurenaChan Pei Shan (Attorney-General’s Chambers) for the respondent inCivil Appeals Nos 54 and 125 of 2013.

Subject Area / Catchwords   

Constitutional Law – Equal protection of the law – Equality before the law

Constitutional Law – Fundamental liberties – Right to life and personal liberty

Constitutional Law – Constitution – Interpretation

28 October 2014

Judgment reserved.

Andrew Phang Boon Leong JA (deliveringthe judgment of the court):

Introduction

Overview

1       Thereare very few legal provisions in the Singapore legal landscape which,although simply stated (and intuitively attractive), are very difficult toapply in practice. Article 12 of the Constitution of the Republicof Singapore (1985 Rev Ed, 1999 Reprint) (“the Singapore Constitution”)is one of these rare exceptions. In particular, Article 12(1) ofthe Singapore Constitution (“Art 12(1)”), which is one of the provisionsin issue in the present appeals (viz,Civil Appeal No 54 of 2013 (“CA 54/2013”) and Civil Appeal No 125of 2013 (“CA 125/2013”)), is deceptively simple in its economy oflanguage:

Equalprotection

12.—(1) All persons are equalbefore the law and entitled to the equal protection of the law.

2       Theissue before this court in the present appeals can be stated very simply:is s 377A of the Penal Code (Cap 224, 2008 Rev Ed) (“the current PenalCode”) inconsistent with Art 9 and/or Art 12 of the Singapore Constitution(referred to hereafter as “Art 9” and “Art 12”, respectively), andhence, unconstitutional to the extent of such inconsistency? Inthis regard, Art 9(1) of the Singapore Constitution (“Art 9(1)”),which is the specific provision in Art 9 that the appellants inCA 54/2013 and the appellant in CA 125/2013 (collectively, “theAppellants”) are relying on, provides as follows:

Libertyof the person

9.—(1) No person shall bedeprived of his life or personal liberty save in accordance withlaw.

Art 4 of the Singapore Constitution (“Art 4”), which is setout below, should also be noted:

Supremacyof Constitution

4.    ThisConstitution is the supreme law of the Republic of Singapore and anylaw enacted by the Legislature after the commencement of this Constitutionwhich is inconsistent with this Constitution shall, to the extent ofthe inconsistency, be void.

3       Section 377Aof the current Penal Code, the provision which is the subject ofthe Appellants’ constitutional challenge, reads as follows:

Outrages ondecency

377A. Anymale person who, in public or private, commits, or abets the commissionof, or procures or attempts to procure the commission by any maleperson of, any act of gross indecency with another male person,shall be punished with imprisonment for a term which may extendto 2 years.

In this judgment, we shall be referring to s 377A of not onlythe current Penal Code, but also earlier editions of that statute.As there are no substantial differences between the various versionsof s 377A, we shall use the generic term “s 377A” to denote theversion of s 377A in force at the particular point in time beingdiscussed.

4       Wealso note that there is a presumption of constitutionality inasmuchas a court will not lightly find a statute or any provision(s) thereof (referredto hereafter as a “statute” for short) unconstitutional (see, for example,the decision of this court in Public Prosecutorv Taw Cheng Kong [1998] 2 SLR(R) 489 (“TawCheng Kong (CA)”) at [60]). This is only logical as wellas commonsensical as our legislature is presumed not to enact legislationwhich is inconsistent with the Singapore Constitution. However, anissue arises in these appeals as to whether or not this presumption appliesto colonial legislation as well,given that s 377A was first introduced into our Penal Code in 1938,when Singapore was still a British colony.

5       Whilstthe central issue in the present appeals (as set out above at [2]) canbe stated simply, it is intensely controversial, and has elicited diametricallyopposed (as well as, on occasion at least, intense and even emotional)responses in the extra-legal sphere, especially where Art 12 is concerned.A great many arguments have been mounted by proponents on each sideof the divide. It is no exaggeration to say that this court found itselfin the midst of a cacophony of voices. Be that as it may, only onevoice – and one voice alone – is relevant in so far as the presentappeals are concerned: it is the voice of the law, which representsthe voice of objectivity. All other voices are irrelevant; indeed,they generate unnecessary heat (and distraction) rather than needful(and illuminating) light.

Important general points

Only legal arguments are relevant

6       Beforewe set out the background facts and procedural history of the presentappeals, it is necessary for us to first highlight a few important generalpoints. The first is that many of the difficulties encountered inthe context of Art 9 and Art 12 relate to the fact that the courtis often involved in a delicate balancing process. More importantly,it often faces a paradox which it must nevertheless negotiate. Onthe one hand, it must disregard extra-legal considerations thatare uniquely within the purview of the legislature (here, the SingaporeParliament). This was in fact a central motif in the justly famoustheory of adjudication proffered by the late Prof Ronald Dworkin(in an entire series of works, commencing with his seminal book, Taking Rights Seriously (Harvard UniversityPress, 1978) (especially at ch 4)). Yet, where the constitutionalityof a statute is challenged under Art 9 and/or Art 12, the courtmust have regard to extra-legal considerations inso far as they impact the application of Art 9 and Art 12themselves. The vexing difficulty – particularly in the contextof the present appeals – is to discern where the line is to be drawn,bearing in mind that where the court does indeed have regard toextra-legal considerations, this must (in the nature of things)be by way of a very limited brief premisedonly on what is absolutely necessary toenable the court to apply the relevant legal principles relatingto Art 9 and Art 12.

7       Drawingsuch a line in the legal sand isimperative. If this is not done, the court will necessarily be suckedinto and thereby descend into the political arena,which would in turn undermine (or even destroy) the very role whichconstitutes the raison d’être forthe court’s existence in the first place – namely, to furnish an independent, neutral and objective forumfor deciding, on the basis of objective legal rules and principles,(inter alia) what rights partieshave in a given situation. That the court’s role as a neutral arbiteris utterly vital is underscored in a situation where (as is the casehere) the arguments on either side of what is in substance a legislative divide are intensely controversialand the relevant empirical evidence is ambiguous at best. All thatthe court can – and must – be concerned with in these circumstancesis whether any fundamental rights under the Singapore Constitution (such as thosepursuant to Art 9 and Art 12) have indeed been violated.

8       Indetermining the constitutionality of a statute which is allegedto be inconsistent with Art 12 (or, for that matter, any other Articleof the Singapore Constitution), the court’s main concern is to becareful not to trespass into extra-legal territory which legitimatelybelongs only to the legislature. Looked at in this light, the manyextra-legal arguments on the constitutionality of s 377A are irrelevant to the court’s applicationof Art 12. We hasten to add that this does not meanthat these arguments are wholly irrelevantin all contexts. They are appropriateto a legislative debate, but thatis wholly beyond the remit of the court. The proponents of these argumentsfail to see this because they overlook the vital distinction referredto above (at [6]) between legal principles and extra-legal considerations.Hence, they proffer various extra-legal arguments as though thosearguments are central to the court’s task, when they serve onlyto muddy an already difficult legal path which the court is attemptingits level best to negotiate. This is unfortunate, to say the least.Indeed, the difficulties are exacerbated by the fact that some ofthe extra-legal arguments might also have an overlay of emotionaland/or other overtones, and, on this ground alone, are more suited(if at all) to a legislative (oreven philosophical) – but not a legal –debate.

What is legally relevant (andirrelevant) in the context of the present appeals

9       Itfollows, a fortiori, from the observationsin the preceding paragraph that in deciding the present appeals,this court cannot – and must not – be drawn into the sphere of evenbroader (and, arguably, even more speculative) debate, in particular,on the possible legal as well as extra-legal consequences flowingfrom its decision on the constitutionality of s 377A. Indeed, counselfor the appellants in CA 54/2013, Ms Deborah Barker SC (“Ms Barker”),was at pains to point out right at the outset of her clients’ writtencase (as well as in her oral submissions before this court) thather clients’ appeal is not about other legal rights(such as the right to same-sex marriage). There is, in fact, no necessary connection between any court decisionon the constitutionality of s 377A and any positive rights,the grant (or otherwise) of which is clearly a matter for the legislature – and the legislature alone.The line referred to above between what is legitimately within thepurview of the court and what is legitimately within the purview ofthe legislature applies, as noted at the outset of the present paragraph,in an a fortiori manner in the presentappeals.

10     Itfollows that in the present appeals, this court will take into account only those arguments which are legally relevant to the application ofArt 9 and Art 12. All other arguments – interesting though theymight be – ought to be canvassed in the appropriate fora(whether of a legislative, academic or some other public (but non-judicial)nature).

11     Itis also important to emphasise that it follows that nothing in this judgmentimpacts the freedom of a person or group of persons to freely espouse as well as practise his/itsvalues within the boundaries of the law (suchas, in the religious context, within the boundaries laid down byArt 15 of the Singapore Constitution and the Maintenance of ReligiousHarmony Act (Cap 167A, 2001 Rev Ed)). This is consistent with themulti-racial, multi-cultural, multi-lingual as well as multi-religiousnature of Singapore society. This is not mere political rhetoric,but a real and practical framework that furnishes real and practicalfreedom for each group and each individual to practise its/his values– provided (it is important to reiterate) thisis done within the parameters and boundaries laid down by the existinglaw of the land. This freedom cannot,however, extend to an insistence by a particular group or individualthat its/his values be imposed on other groups or other individuals.

12     Givenour approach of focusing only on the relevant legal arguments inthe present appeals, might it be argued that this court is conductingitself like an ostrich whose head is buried in the sand inasmuchas it might be ignoring the need to achieve a substantivelyfair result in the two cases at hand? This is, at firstblush, a rather powerful argument. However, there seems to us noreason why a substantively fair resultcannot be arrived at by focusing only on the relevant legal arguments. Indeed (and on the contrary), were thiscourt to also consider extra-legal arguments that are within the purview of the Singapore Parliament,would that not be contrary to fairness in both a procedural as well as a substantive sense? It shouldalso be noted that if it is thought that asubstantively fair result can only be achieved by a considerationof extra-legal arguments as well, then the Singapore Parliamentcan always remedy the situation in the appropriate fashion. However,it would then be doing so in a legitimate manner. It bears repeatingthat this court cannot seek to achieve the same result as it doesnot have the legitimate jurisdiction to do so – the legitimate jurisdictionlies, instead, with the Singapore Parliament.

Background facts and proceduralhistory

13     Aswe have already mentioned, the present appeals pertain to the constitutionalityof s 377A. The Appellants are essentially arguing that s 377A violatesArt 9 and/or Art 12.

14     Theappellant in CA 125/2013, Tan Eng Hong (“Tan”), was arrested on9 March 2010 for engaging in oral sex with a male partner in thecubicle of a public toilet. Tan and the male partner were chargedunder s 377A on 2 September 2010 and 1 September 2010 respectively.Tan filed an application (by way of an originating summons (“OS”))to challenge the constitutionality of s 377A on 24 September 2010.On 15 October 2010, the Prosecution substituted the s 377A chargesagainst Tan and his partner with charges under s 294(a) of the current Penal Code for the commission ofan obscene act in a public place. Tan and the Attorney-General,the respondent in the present appeals (“the Respondent”), proceededto litigate over the issue of whether Tan had the requisite locus standi to challenge the constitutionalityof s 377A. That culminated in the decision of this court in Tan Eng Hong v Attorney-General [2012]4 SLR 476 (“Tan Eng Hong (standing)”),delivered on 21 August 2012, where it was held that Tan did havethe requisite locus standi.

15     Theappellants in CA 54/2013, Lim Meng Suang (“Lim”) and Kenneth CheeMun-Leon (“Chee”), have been in a romantic and sexual relationship forthe past 15 years. Together, they run “TheBearProject”, an informal socialgroup for plus-sized gay men. Both men aver that they have been sexuallyattracted to men since young, and have experienced various forms ofsocial discrimination against homosexual men. On 30 November 2012, slightlyover three months after the judgment in TanEng Hong (standing) was delivered, Lim and Chee filedan OS to challenge the constitutionality of s 377A.

16     Tan’ssubstantive application was first heard by a High Court judge on18 January 2013. Lim and Chee’s substantive application was firstheard by the same High Court judge (“the Judge”) on 7 February 2013.Judgments for these two substantive applications were released on,respectively, 2 October 2013 (reported as TanEng Hong v Attorney-General [2013] 4 SLR 1059 (“Tan Eng Hong (substantive)”)) and 9 April2013 (reported as Lim Meng Suang and anotherv Attorney-General [2013] 3 SLR 118 (“Lim MengSuang”)). In both judgments, the Judge held that s 377Adid not violate the Singapore Constitution.

17     Limand Chee filed their notice of appeal on 30 April 2013. On 15 July 2013,Lim and Chee sought, inter alia,leave to amend their OS to include new arguments centring on hows 377A violated Art 9. Their application was dismissed by a HighCourt judge sitting as a single judge of the Court of Appeal. Limand Chee then filed Summons No 3664 of 2013 (“SUM 3664/2013”) on17 July 2013, requesting a three-judge Court of Appeal to reviewthat judge’s dismissal of their application. SUM 3664/2013 was heardon 2 August 2013, whereupon it was adjourned to be heard togetherwith Lim and Chee’s substantive appeal (ie,CA 54/2013). CA 54/2013 was set down to be heard on 14 October 2013.

18     Inthe meantime, Tan filed an application on 14 August 2013 for leave tointervene in CA 54/2013. This application for leave to intervenewas subsequently withdrawn when it was heard on 5 September 2013.As mentioned above at [16], the judgment for Tan’s substantive application wasreleased on 2 October 2013. A notice of appeal (assigned the number “CA 125/2013”)was quickly filed on 8 October 2013, along with an application for, inter alia, CA 125/2013 to be expeditedand heard together with CA 54/2013 on 14 October 2013. That applicationwas heard on 10 October 2013, wherein this court ordered CA 54/2013and CA 125/2013 to be heard together because they raised essentiallythe same issues of law. The hearing for CA 54/2013, originally scheduledfor 14 October 2013, was vacated to allow counsel for Tan, Mr M Ravi(“Mr Ravi”), to file submissions.

Summary of the arguments inthe court below

19     Ms Barker’sarguments in the court below centred on how s 377A violated Art 12.Firstly, it was submitted that equal protection under Art 12 extendedto protection from discrimination on the basis of sexual orientation.Secondly, it was said that s 377A was so absurd, arbitrary and unreasonablethat it could not be good law. Thirdly, it was argued that s 377Afailed the two-step test for determining the constitutionality ofa statute under Art 12 (“the ‘reasonable classification’ test”)because it disclosed no intelligible differentia and the differentiaapplied bore no rational relation to the object of s 377A. (Underthe “reasonable classification” test, which was enunciated in, inter alia, Taw ChengKong (CA), Nguyen Tuong Van v PublicProsecutor [2005] 1 SLR(R) 103 (“Nguyen TuongVan”) and Yong Vui Kong v PublicProsecutor and another matter [2010] 3 SLR 489 (“Yong Vui Kong”), a statute that prescribesa differentiating measure will nonetheless be consistent with Art 12if it is based on “reasonable classification”; ie,if: (a) the classification prescribed by the statute is foundedon an intelligible differentia which distinguishes persons withinthe defined group from persons outside the group; and (b) that differentiahas a rational relation to the object sought to be achieved by thestatute.) Lastly, Ms Barker submitted that s 377A did not conformto trends in international jurisprudence, which militated against discriminationon the basis of sexual orientation. She therefore prayed for s 377Ato be struck down in toto (cf the prayers sought by Lim and Cheeon appeal at para 347 et seq oftheir Appellants’ Case, in which it is argued, as an alternative,that s 377A should be read down by striking out the words “or private”therein).

20     Mr Ravi’sarguments in the court below centred on how s 377A was inconsistentwith both Art 9 and Art 12. He argued that s 377A was contrary tothe fundamental rules of natural justice and was therefore not “law”for the purposes of Art 9(1). In relation to Art 12, he contendedthat s 377A was absurd, arbitrary and unreasonable, and that thedifferentia of males bore no rational relation to the object ofthe provision.

21     TheRespondent essentially argued that s 377A passed the “reasonable classification”test. The objectives of s 377A, it submitted, comprised the preservationof public morality and the safeguarding of public health (it shouldbe noted that this last-mentioned point was not pursued before this court).The non-inclusion of female homosexual conduct did not render s 377Aunder-inclusive because such conduct was either less prevalent or perceivedto be less repugnant than male homosexual conduct. Even if s 377Awere under-inclusive, the Respondent contended, legislative leeway oughtto be given to our Parliament. Most importantly, it was submitted, thereshould be a strong presumption of constitutionality for laws passedby the legislature.

The decisions below

The decision in Lim Meng Suang

22     TheJudge commenced his decision in Lim Meng Suang by undertakinga historical inquiry into Art 12. Article 12 was found to be consanguinewith equivalent provisions in the US Constitution, the Constitutionof India and the Federal Constitution of Malaysia. Equal protection,the Judge held, was a guarantee of not merely procedural or administrativeequality, but also substantive equality. Nevertheless, legislaturesaround the world had had to continually classify diverse groups andactivities for different purposes; a legislature was entitled topass laws that dealt with the problems stemming from the inherentinequality and differences pervasive in society.

23     TheJudge proceeded to apply the “reasonable classification” test to s 377A.It was clear, he held, that the classification prescribed by s 377Awas based on an intelligible differentia: there was little difficultyin determining who fell within and without the provision. The second-stageinquiry into whether the differentia was rationally related to theobject of s 377A was, however, fraught with difficulty. Determiningthe purpose of legislation was not straightforward, and there werealso problems with the extent of over- or under-classification requiredbefore the court could find that a rational relation was absent.In addition, there was a danger of engaging in tautological reasoning.

24     TheJudge was of the view that the purpose of s 377A was to be determinedat the time it was first introduced into Singapore’s Penal Code in1938. That purpose, he found, had remained unchanged to the present day:“[t]he act of males engaging in grossly indecent acts with othermales was to be criminalised” (see Lim MengSuang at [67]). There was thus a “complete coincidence”(see Lim Meng Suang at [100]) betweenthe differentia in relation to the classification prescribed bys 377A and the object of that provision; the “reasonable classification”test was clearly satisfied. Turning to the issue of legitimacy ofpurpose, the Judge held that the purpose of s 377A was legitimatebecause of the weight of historical practice and “deep seated feelings”pertaining to procreation and family lineage (see LimMeng Suang at [127]).

The decision in Tan Eng Hong(substantive)

25     TheJudge commenced his judgment in Tan Eng Hong(substantive) with an examination of Art 9(1), and heldthat the reference to “law” therein had to include a reference tothe fundamental rules of natural justice. He observed that therewas a dearth of jurisprudence on the concept and scope of thoserules. Nevertheless, he noted two possible types of legislationthat would not qualify as “law” for the purposes of Art 9(1), namely:(a) legislation aimed at securing the conviction of particular individuals;and (b) legislation that was absurd or arbitrary.

26     Afterconsidering statements from pro- as well as anti-homosexual groups,medical and scientific bodies and court decisions, the Judge declinedto find that homosexuality was a natural and immutable attribute. Thisrendered moot the argument that s 377A was an absurd law which was contraryto the fundamental rules of natural justice because it targeteda natural and immutable attribute of a person. The Judge was alsonot persuaded that s 377A was unconstitutional because it was toovague and uncertain.

27     Inso far as the constitutional challenge under Art 12 was concerned, theJudge held that the “reasonable classification” test applied toall constitutional challenges based on this Article. He did notadopt the approach taken in the foreign authorities cited to himbecause those authorities factored in legal and extra-legal social,economic, cultural and political considerations which were uniqueto their respective jurisdictions. The Judge also observed thats 377A could not be said to have an unsound purpose merely becausethat purpose was to advance a certain allegedly controversial morality.Finally, the Judge ruled that there was a complete coincidence betweenthe differentia embodied in s 377A (viz,male homosexuals or bisexual males who engage in acts of gross indecencywith another male within the meaning of the provision) and the purposeand object of the provision (viz,making male homosexual conduct an offence because such conduct wasnot desirable).

The parties’ respective caseson appeal

CA 54/2013

28     Beforethis court, Ms Barker submitted (in relation to CA 54/2013) thatLim and Chee possessed the requisite locusstandi to challenge the constitutionality of s 377A forthe following reasons:

(a)     Tan Eng Hong (standing) made it clearthat where a person who was a member of the group defined by a purportedlyunconstitutional statute (referred to hereafter as an “impugnedstatute” where appropriate to the context) faced a real and crediblethreat of prosecution under that statute, this was sufficient togive him locus standi to challengethe constitutionality of that statute under Art 12. Lim and Cheewere both sexually active male homosexuals falling within the groupdefined by s 377A. They thus had the locusstandi to challenge s 377A as being violative of Art 12.

(b)     Withregard to Art 9, given Lim and Chee’s averment that their personalrights under that Article had been violated and that there was areal controversy between the parties, this sufficed to establish their locus standi to challenge the constitutionalityof s 377A under that Article.

29     Interms of the substantive merits of CA 54/2013, Ms Barker argued thats 377A violated Art 12(1). Section 377A was said to be arbitraryon its face as: (a) it ran foul of the concept of constitutionalsupremacy wherein a State could not deprive minorities of theirfundamental liberties simply because of popular moral sentiment;and (b) it criminalised acts that were legal for non-male homosexuals.Section 377A, it was contended, also failed the “reasonable classification”test as the classification prescribed by that provision was notbased on an intelligible differentia; and even if the classificationcould be said to be based on an intelligible differentia, that differentiabore no rational relation to the object of s 377A. Section 377A,it was further submitted, also violated Art 12(2) of the SingaporeConstitution (“Art 12(2)”) because sexual orientation was a practicallyimmutable aspect of a person’s identity.

30     Inrelation to Art 9, Ms Barker argued that s 377A violated Art 9(1). Theright to life and personal liberty set out in Art 9(1), she submitted, shouldbe given a purposive interpretation to include a limited right of privacy.Life and personal liberty must, at their core, include a right of personalautonomy allowing a person to enjoy and express affection and lovetowards another human being.

31     TheRespondent, on its part, originally submitted that Lim and Chee lackedthe requisite locus standi to challengethe constitutionality of s 377A. In particular, it argued that areal controversy was required to establish standing and jurisdiction,and that such a controversy would only arise when the State tookaction pursuant to the impugned statute in question. However, ina subsequent letter to Ms Barker dated 1 July 2014, the Respondentstated that it would not be pursuing its case on this particular pointas it had not been raised before the Judge in the proceedings below.

32     Inso far as the substantive issues in CA 54/2013 were concerned, the Respondentargued that s 377A did not violate Art 12(2). Article 12(2), the Respondentsubmitted, was exhaustive in terms of the prohibited grounds ofdiscrimination set out therein, and was distinguishable from constitutionalprovisions in other jurisdictions which explicitly enumerated sexor sexual orientation as one of the prohibited grounds of discrimination.It was further argued that:

(a)     Section 377Adid not violate Art 12(1). A single standard of review should beapplied to determine the constitutionality of an impugned statuteunder Art 12(1), namely, the “reasonable classification” test. Applyingthat test, the classification prescribed by s 377A was founded onan intelligible differentia which bore a rational relation to thelegislative purpose of the provision. The “reasonable classification”test did not, and ought not to, require substantive judicial reviewof the legislative purpose of s 377A. In any case, the purpose ofs 377A was constitutionally permissible.

(b)     Section 377Aalso did not violate Art 9(1). In this regard, comparative jurisprudencewas inapplicable. Reading Art 9(1) to entail a right to privacywas contrary to the weight of authority, as well as the history,text and structure of Art 9. In any case, s 377A was “law” for thepurposes of Art 9(1).

CA 125/2013

33     InCA 125/2013, Mr Ravi made four arguments in relation to Art 12. First,he submitted that the applicable test for determining the constitutionalityof an impugned statute under Art 12 was not confined to the “reasonableclassification” test. Secondly, he contended that the classificationprescribed by s 377A was not based on an intelligible differentiabecause s 377A was vague and “[did] not apply differentia based oneither gender, sexual orientation or [the] nature of [the] sexualact”. Thirdly, the object of s 377A was, according to Mr Ravi, anexpression of animus by the majority against a minority, and wastherefore incompatible with the constitutional guarantee of individualfundamental freedoms against majoritarian oppression. Fourthly,it was argued that there was no rational relation between the purposeof s 377A and the differentia embodied in that section.

34     Inrelation to Art 9, Mr Ravi argued that s 377A was inconsistent with thatArticle for three reasons. First, s 377A was impermissibly vaguein the scope of the activity which it purported to prohibit, therebycreating not only doubt as to its effect, but also a substantialrisk of perversity or arbitrariness in its application. Secondly,s 377A was arbitrary inasmuch as the criminal penalty which it imposedserved no rational purpose in theory or in practice. Thirdly, s 377Awas absurd in that it criminalised, without any logically defensiblereason, a minority of citizens on the grounds of a core aspect oftheir identity which was either unchangeable or suppressible onlyat a great personal cost.

35     Inresponse to Mr Ravi’s submissions, the Respondent made the followingarguments with regard to Art 12. First, the established test for determiningthe constitutionality of an impugned statute under Art 12(1) onlyrequired the classification prescribed by the impugned statute tobe founded on an intelligible differentia which bore a rationalrelation to the purpose and object of the statute. Secondly, therelevant classification in relation to s 377A was based on an intelligibledifferentia (viz, male homosexualsor bisexual males who engage in acts of gross indecency with anothermale within the meaning of the provision), and that differentiawas rationally related to the purpose and object of the provision(viz, making male homosexual conductan offence because such conduct was not desirable). Thirdly, Art 12(1)did not contemplate judicial scrutiny of the legislative purposeof an impugned statute. Fourthly, Art 12(1) “[did] not impose anyblanket prohibition on classifications based on sex or sexual orientationor ‘immutable’ characteristics, or on classifications that [were] ‘unreasonable’or ‘impermissible’” [emphasis in original omitted].

36     TheRespondent’s submissions in relation to Art 9 were as follows. First,Art 9(1) referred to “the deprivation of life in the sense of thedeath penalty, and personal liberty in the sense of the libertyof the person … and the freedom from unlawful incarceration or detention”.Secondly, s 377A was “law” for the purposes of Art 9(1) becauseit had a clear core of meaning and was not unconstitutionally vague.Thirdly, Art 9(1) did not protect a person’s sexual identity ororientation, regardless of whether or not that was an immutableaspect of a person’s identity.

The issues before this court

The preliminary issues

37     Fromthe procedural history set out above, it can be seen that the followingtwo preliminary issues were originally raisedin CA 54/2013:

(a)     DoLim and Chee have the requisite locus standi tochallenge the constitutionality of s 377A?

(b)     ShouldLim and Chee be allowed to amend their OS to include new argumentscentring on how s 377A violates Art 9?

As noted above (at [31]), the Respondent indicated in itsletter to Ms Barker dated 1 July 2014 that it was no longer pursuingthe first of the aforesaid preliminary issues – in particular, becausethe locus standi point had not beenraised before the Judge in the proceedings below. By that same letter, theRespondent stated that it was also not objecting to Lim and Chee’s applicationfor leave to amend their OS to include new arguments centring onhow s 377A violated Art 9. Both of the above preliminary issuesare therefore no longer live issues before this court.

38     Wewould add that, in any event, had it been necessary for us to decideSUM 3664/2013, we would have allowed the application. In their supportingaffidavit for SUM 3664/2013, Lim and Chee averred that the constitutionalityof s 377A was a matter of public interest, and that the proposedamendment to their OS would allow this court to consider the meritsof all the arguments relating to whether or not s 377A was unconstitutionaland determine once and for all whether s 377A violated Art 12 and/orArt 9. Lim and Chee further contended that there would be no prejudiceto the Respondent if the proposed amendment to their OS were allowed.

39     Thecourt has a wide discretion to allow an amendment of an OS at anystage of the proceedings on such terms as to costs or otherwiseas may be just (see O 20 r 5(1) read with O 20 r 7 of the Rulesof Court (Cap 322, R 5, 2014 Rev Ed)). In a similar vein (althoughnot applicable in the present appeals), a party may introduce onappeal a new point not taken in the court below, but it must statethis clearly in its case (see O 57 r 9A(4)(b)).

40     Weare of the view that Lim and Chee’s proposed amendment to their OSwould not cause the Respondent any prejudice which cannot be compensatedin costs (see the decision of this court in ReviewPublishing Co Ltd and another v Lee Hsien Loong and another appeal [2010]1 SLR 52 (“Review Publishing Co”)at [113]). The proposed amendment would give symmetry to the presentappeals and allow a broader spectrum of arguments to be aired onan important constitutional point in the Singapore context.

The substantive issues

41     Thepresent appeals raise several overlapping arguments about the constitutionalityof s 377A. These boil down to whether s 377A violates the followingprovisions of the Singapore Constitution:

(a)     Art 9(1);

(b)     Art 12(1);and

(c)     Art 12(2).

We shall discuss each of these substantive issues in turn,beginning with the issue of whether s 377A violates Art 9(1).

Whether s 377A violates Art 9(1)

42     Article 9,part of which was set out above at [2], provides as follows:

Libertyof the person

9.—(1) No person shall bedeprived of his life or personal liberty save in accordance withlaw.

(2)    Wherea complaint is made to the High Court or any Judge thereof that aperson is being unlawfully detained, the Court shall inquire intothe complaint and, unless satisfied that the detention is lawful,shall order him to be produced before the Court and release him.

(3)    Where a person is arrested, he shallbe informed as soon as may be of the grounds of his arrest and shallbe allowed to consult and be defended by a legal practitioner ofhis choice.

(4)    Where a person is arrested and notreleased, he shall, without unreasonable delay, and in any casewithin 48 hours (excluding the time of any necessary journey), beproduced before a Magistrate, in person or by way of video-conferencinglink (or other similar technology) in accordance with law, and shallnot be further detained in custody without the Magistrate’s authority.

(5)    Clauses (3) and (4) shall not applyto an enemy alien or to any person arrested for contempt of Parliamentpursuant to a warrant issued under the hand of the Speaker.

(6)    Nothing in this Article shall invalidateany law —

(a)    in force before the commencementof this Constitution which authorises the arrest and detention ofany person in the interests of public safety, peace and good order;or

(b)    relatingto the misuse of drugs or intoxicating substances which authorisesthe arrest and detention of any person for the purpose of treatmentand rehabilitation,

by reason of such law being inconsistentwith clauses (3) and (4), and, in particular, nothing in this Articleshall affect the validity or operation of any such law before 10th March1978.

43     Thearguments raised by Mr Ravi and by Ms Barker on Art 9 in the presentappeals are different. Ms Barker argues that the right to life and personalliberty under Art 9(1) should include a limited right to privacyand personal autonomy allowing a person to enjoy and express affectionand love towards another human being. Mr Ravi, on the other hand,contends that s 377A is vague, arbitrary and absurd.

44     Inso far as Ms Barker’s arguments are concerned, our view is thatthe right to privacy and personal autonomy which she canvassed shouldnot be read into the phrase “life or personal liberty” in Art 9(1)for three reasons.

45     First, such an interpretation of Art 9(1)would be contrary to established Singapore jurisprudence. The phrase“personal liberty” in Art 9(1) refers only to the personal libertyof a person from unlawful incarceration or detention (see Tan Eng Hong (standing) at [120], affirming Lo Pui Sang and others v Mamata Kapilev Dave andothers (Horizon Partners Pte Ltd, intervener) and other appeals [2008]4 SLR(R) 754). Although the phrase “life” has not been authoritativelyinterpreted by the Singapore courts, it should be interpreted narrowlyin accordance with the jurisprudence on “personal liberty” and Art 9’scontext and structure, which brings us to our next point.

46     Our second reason for rejecting Ms Barker’sarguments on Art 9 is that the narrow interpretation of Art 9(1)which we have just mentioned above at [45] is (as the Respondenthas correctly argued) supported by the context and structure ofArt 9 itself. Articles 9(2) to 9(4) provide various procedural safeguardsin relation to the arrest and detention of a person. Article 9(2)gives expression to the common law prerogative writ of habeas corpus; Art 9(3) provides for anarrested person’s right to counsel and the right to be informedof the grounds for his arrest; and Art 9(4) relates to the productionof an arrested person before a magistrate within 48 hours. Articles 9(5)and 9(6) contain exceptions to the rights guaranteed to an arrestedperson. Read in this context, it is clear that the phrase “lifeor personal liberty” in Art 9(1) refers only to a person’s freedomfrom an unlawful deprivation of life and unlawful detention or incarceration.

47     Thirdly, protection against unlawful detentionis the particular focus of Art 21 of the Indian Constitution, fromwhich our Art 9 is derived. India’s Art 21 states that “[n]o personshall be deprived of his life or personal liberty except accordingto procedure established by law”. As the Respondent has argued (again,correctly, in our view), the framers of India’s Art 21 consciouslyrejected the wider US formulation “without due process of law” inthe Fifth and Fourteenth Amendments to the US Constitution, andenacted additional provisions similar to Singapore’s Art 9(3) and Art 9(4)to protect India’s citizenry against unlawful detention. There isno indication that they intended to impute an expansive meaninginto the phrase “life or personal liberty”. India’s Art 21 was thebasis for the “liberty of the person” provision in Art 5(1) of theMalaysian Constitution, which was later adopted in Singapore asArt 9(1).

48     Ina related vein, foreign cases that have conferred an expansive constitutionalright to life and liberty should be approached with circumspectionbecause they were decided in the context of their unique social,political and legal circumstances. For example, the Supreme Courtof India has taken an expansive view of the right to life to includean individual’s right to health and medical care. This approachmust be understood in the context of India’s social and economicconditions (see Yong Vui Kong at[83]–[84]). A similarly broad approach has been adopted in the USbecause of the due process clauses in the Fifth and Fourteenth Amendmentsto the US Constitution, which are materially different from ourArt 9(1).

49     Indeed,it is significant that Ms Barker herself conceded that the private law relating to privacy was a developing one. It is clear that Lim and Chee(and likewise, Tan in CA 125/2013) cannot obtain by the (constitutional)backdoor what they cannot obtain by the (private law) front door.Indeed, that would be a wholly inappropriate utilisation of the existingbody of constitutional law (whichserves a quite different function). Moreimportantly, as we have already noted above (at [30]), Lim and Chee basetheir Art 9(1) rights on a narrow conception of the right to privacy, viz, that the right to life and personalliberty under Art 9(1) should include a limited right to privacyand personal autonomy allowing a person to enjoy and express affectionand love towards another human being. Once again, such a right ought,in our view, to be developed by way of the private lawon privacy instead. Indeed, we also observe that the right claimedby Lim and Chee, although of an apparently limited nature, is, inpoint of fact, not only vague and general, but also contains withinitself (contradictorily) the seeds of an unlimited right.Put simply, such a right could be interpreted to encompass as wellas legalise all manner of subjective expressions of love and affection,which could (in turn) embody content that may be wholly unacceptablefrom the perspective of broader societal policy. At this juncture,we are, of course, back to “square one”, so to speak, for this brings usback (in substance at least) to the issue of whether or not s 377Aought to enforce broader societal morality.

50     Weturn now to Mr Ravi’s arguments on the alleged unconstitutionalityof s 377A under Art 9.

51     First,we do not think the phrase “act of gross indecency with another maleperson” in s 377A is of such vagueness that would cause the provision tofall outside the classification of “law” for the purposes of Art 9(1).The concept of indecency is not alien to Singapore legislation (see,for example, s 145(1) of the Women’s Charter (Cap 353, 2009 RevEd) and s 7 of the Children and Young Persons Act (Cap 38, 2001 RevEd)), and we do not think there is any objectionable degree of vaguenessinherent within s 377A itself. We would venture to suggest thats 377A prohibits, at its core, sexual acts between males. The Judge’sviews on the operation of s 377A (in Tan EngHong (substantive) at [76], [82] and [83]) were tentativein nature not because the provisionwas vague, but because the matterbefore him did not involve a criminal charge under s 377A.

52     Secondly,s 377A is not arbitrary. Mr Ravi’s submissions on this point arenot easily comprehensible, but they appear to suggest that thereis no rational purpose for s 377A. Mr Ravi asserted, without anylegal substantiation whatsoever, that the purpose of s 377A in signallingsocietal disapproval of grossly indecent acts between males wasarbitrary.

53     Thirdly,s 377A is not absurd. Mr Ravi argued that s 377A was absurd becauseit criminalised a minority of citizens based on a core aspect oftheir identity which was either unchangeable or suppressible onlyat a great personal cost. As noted by the Respondent, Mr Ravi’sargument here closely resembles Ms Barker’s argument that “personalliberty” in Art 9(1) should be interpreted to include a limitedright to privacy and personal autonomy. For the reasons given above,Mr Ravi’s argument in this particular guise must likewise be rejected.In so far as the supposed immutability of a person’s sexual orientationis concerned, the conflicting scientific views on this issue suggestthat there is, at present, no definitive conclusion, and it maytherefore be premature to express any conclusive views on it. Indeed, thisis precisely one of the extra-legal argumentsthat is not within the remit ofthis court (see above at [6]).

54     Letus turn now to the issue of whether s 377A violates Art 12(1).

Whether s 377A violates Art 12(1)

The relevant legal provisions

55     Tobegin our analysis of the constitutionality of s 377A under Art 12(1),it would be appropriate to not only set out Art 12(1) again, but alsoreproduce the rest of Art 12 aswell, as the context of Art 12 (in particular,Art 12(2)) is, as we shall see, very significant. Article 12 readsas follows:

Equalprotection

12.(1) Allpersons are equal before the law and entitledto the equal protection of the law.

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

(3)    This Article does not invalidate orprohibit —

(a)    any provision regulatingpersonal law; or

(b)    anyprovision or practice restricting office or employment connectedwith the affairs of any religion, or of an institution managed bya group professing any religion, to persons professing that religion.

[emphasis added in italics, underlineditalics, bold italics and underlined bold italics]

56     Asthe constitutionality of s 377A is the central issue in these appeals, wealso set out this provision again, even though we have already doneso at the outset of this judgment (see above at [3]):

Outrages ondecency

377A. Anymale person who, in public or private, commits, or abets the commissionof, or procures or attempts to procure the commission by any maleperson of, any act of gross indecency with another male person,shall be punished with imprisonment for a term which may extendto 2 years.

The applicable test for constitutionality:the “reasonable classification” test

The test articulated

57     Theestablished test in Singapore for determining the constitutionality ofa statute under Art 12 is the “reasonable classification” test.This is clear from the relevant case law (see, for example, Ong Ah Chuan and another v Public Prosecutor [1979–1980]SLR(R) 710 (“Ong Ah Chuan”) at [37]; Taw Cheng Kong (CA) at [58]; Nguyen Tuong Van at [70]; YongVui Kong at [109]; and Tan Eng Hong(standing) at [124]). It should, however, be noted thatthe “reasonable classification” test is not even engaged if theimpugned statute is not discriminatory in the first place. In thewords of Mohamed Azmi SCJ in the Malaysian Supreme Court decisionof Malaysian Bar v Government of Malaysia [1987]2 MLJ 165 (“Malaysian Bar”) at 170 (referredto in Taw Cheng Kong (CA) at [58]):

… The first question to be asked is, isthe law discriminatory, and that the answer should then be – ifthe law is not discriminatory, it is good law …

Indeed, the question set out in the above quotation has beenreferred to as the first stage of “a three-stage inquiry” (see,for example, the Singapore High Court decision of TawCheng Kong v Public Prosecutor [1998] 1 SLR(R) 78 at[32]; that decision was reversed by this court in TawCheng Kong (CA), but without any apparent comment onthis particular point). Strictly speaking, however, the “reasonableclassification” test, in our view, comprises only two closely-relatedstages.

58     The“reasonable classification” test was articulated by, inter alia, this court in TawCheng Kong (CA), which, after referring to the abovepassage from Malaysian Bar, wenton to cite (at [58]) Azmi SCJ’s observations in that same case (viz, Malaysian Bar)as follows (at 170):

… Discriminatory law is good law if itis based on ‘reasonable’ or ‘permissible’ classification, providedthat

(i)    theclassification is founded on an intelligible differentia which distinguishespersons that are grouped together from others left out of the group;and

(ii)   the differentia has a rational relationto the object sought to be achieved by the law in question. Theclassification may be founded on different bases such as geographical,or according to objects or occupations and the like. What is necessaryis that there must be a nexus between the basis of classificationand the object of the law in question.

59     Taw Cheng Kong (CA) also cited (at [54])the following comments by Lord Diplock in the Privy Council decisionof Ong Ah Chuan (at [35] and [37])with approval:

35    Allcriminal law involves the classification of individuals for the purposesof punishment, since it affects those individuals only in relationto whom there exists a defined set of circumstances – the conductand, where relevant, the state of mind that constitute the ingredientsof an offence. Equality before the law andequal protection of the law require that like should be comparedwith like. What Art 12(1) of theConstitution assures to the individual is the right to equal treatmentwith other individuals in similar circumstances. It prohibits lawswhich require that some individuals within a single class shouldbe treated by way of punishment more harshly than others; itdoes not forbid discrimination in punitive treatment between oneclass of individuals and another class in relation to which thereis some difference in the circumstances of the offences that hasbeen committed.

37    …Provided that the factor which the Legislature adopts as constituting thedissimilarity in circumstances is not purely arbitrary but bearsa reasonable relation to the social object of the law, there isno inconsistency with Art 12(1) of the Constitution.

[emphasis added; emphasis in original omitted]

60     Underthe “reasonable classification” test, therefore, a statute which prescribesa differentiating measure will be consistent with Art 12(1) only if:(a) the classification prescribed by the statute is founded on an intelligibledifferentia; and (b) that differentiabears a rational relation to the object sought to be achieved bythe statute (see also Tan Eng Hong (standing) at[124]).

The difficulties with the “reasonableclassification” test

(1)    The true nature andfunction of the test

61     The“reasonable classification” test is not without its difficulties.This has been articulated in the legal literature (see, for example,Joseph Tussman & Jacobus tenBroek, “The Equal Protection ofthe Laws” (1949) 37 Cal L Rev 341). Perhaps because of the perceivedlack of viable alternative tests and the very thorny nature of theconcept of equality itself (especially when it is to be appliedin a practical context), the cases(at least in the Singapore context) continue to endorse (only) the“reasonable classification” test as the test for determining theconstitutionality of a statute under Art 12. The concept of equalityis thorny, not least because whilst it is eminently desirable (intheory) to achieve equality, this (normative) ideal faces the (factual) reality that inequality (inall its various forms) is an inevitable partof daily life. How, then, is thelaw to ensure that there is a basic level of equality, applying the principleof equality generally, and moreimportantly, in what situations wouldsuch a level of equality be deemed to be legallymandated? As we shall see in a moment, the “reasonableclassification” test, whilst useful, does notreally address the fundamental questions just posed (seealso Peter Westen, “The Empty Idea of Equality” (1982) 95 Harv L Rev537). This is not surprising because (as we shall also see) the very nature of the “reasonable classification”test renders it incapable of furnishingthe requisite (or complete) normative as well as analytical impetus(let alone the requisite criterion or criteria) to answer thesequestions.

62     However,it is also of the first importance to note, at this juncture, that thisdoes not mean that the “reasonableclassification” test ought to be rejected outof hand. That would be to throw the baby out together with the bathwater.As we shall elaborate upon below, the “reasonable classification” testis an important threshold test,without which any attempt to determine whether or not Art 12 hasbeen contravened by an impugned statute cannot even take off theground in the first place. We shall also see that if a particularstatute fails to pass legal muster under this test, it would mean thatthat statute is so legally illogical and/orincoherent that it would, ipso facto,be repugnant to any idea of legal equality to begin with.The reader would be forgiven for thinking that all this is rathergeneral and abstract. Indeed, it is. However, it sets the stagefor the more detailed analysis that follows. It would, in fact,be appropriate at this juncture to turn to an explanation of whythe “reasonable classification” test functions only as a threshold legal test.

63     Itwill be recalled (see above at, inter alia,[60]) that the “reasonable classification” test states that a statutewhich prescribes a differentiating measure will be consistent withArt 12(1) only if: (a) the classification prescribed by the statuteis founded on an intelligible differentia (referredto hereafter as either “the first limb” or “Limb (a)” of the “reasonable classification”test); and (b) thatdifferentia bears a rational relation to the purpose and object sought to be achievedby the statute (referred to hereafter as either “the second limb”or “Limb (b)” of the “reasonable classification” test). It is ourview that the underlying rationale ofboth the aforementioned limbs of the “reasonable classification”test is not only logical, but also commonsensical as well as self-evident.Let us elaborate.

64     Inour view, whilst it is clear that both Limb (a)and Limb (b) must be satisfied in order for the “reasonable classification”test as a whole to be satisfied, Limb (a) operates priorto Limb (b) inasmuch as if the classification concernedis not based on an intelligibledifferentia to begin with, then it is pointless for the courtto ascertain whether Limb (b) has been satisfied (ie,whether the differentia bears a rational relation to the purposeand object sought to be achieved by the statute in question).This is only logical and commonsensical: if there is no intelligible differentia to begin with, then thereis no set of intelligible differentia in existence that can be comparedwith the purpose and object of the statute (which isthe pith and marrow of Limb (b)).

65     When,however, would a statute fail topass legal muster under the threshold legalcriterion embodied within Limb (a)?The answer is that it would, in the nature of things, very seldom be the case. This is becausethe differentia concerned need not be perfect; it need only be “intelligible”. This connotes (in turn)a relatively low threshold that ought to avoidany consideration of substantive moral, political and/or ethicalissues because these issues are potentially (and in most instances,actually) controversial. We should note, parenthetically,that when we refer to “controversy” with respect to moral, politicaland/or ethical issues, we are not necessarily referring to anythingsinister, malevolent or even insidious in nature because reasonable persons can reasonably disagree on a myriadof issues which arise in moral, political and/or ethical contexts. More importantly, it is no business of the courtsor the law generally to engage in the resolution of such issues– except to the extent necessary to resolve any legal issue(s) at hand.It is not surprising, therefore, that the (legal) criterion centringon the need for an intelligible differentiaunder Limb (a) is (as already mentioned) a relatively low threshold that only requiresthe differentia concerned to be based on intelligibility.In this regard, the Judge observed thus in LimMeng Suang (at [47]):

The First Limb [ie,Limb (a)] requires that the classification prescribed by the impugnedlegislation must be based on an intelligible differentia. “Intelligible”means something that may be understood or is capable of being apprehendedby the intellect or understanding, as opposed to by the senses. “Differentia”is used in the sense of a distinguishing mark or character, some attributeor feature by which one is distinguished from all others. Scientifically,one talks of an attribute by which a species is distinguished fromall other species of the same genus.

66     Weagree with the Judge’s observations. They may appear value-neutral,but that is precisely what, in our view, was intended by the criterion ofintelligible differentia to begin with. Value-neutrality is notthe same as redundancy or an absence of functionality. As alludedto earlier, the “reasonable classification” test in general andits component limbs in particular are only intended to (and, inthe nature of things, can only) serve a minimal threshold functionof requiring logic and coherence in the statute concerned, withoutwhich the court cannot meaningfully proceed in any event to determinewhether that statute violates Art 12.

67     Inthe context of Limb (a), what thismeans is that the differentia embodied in the impugned statute mustnot only identify a clear distinguishing mark or character, butmust also be intelligible (asopposed to illogical and/or incoherent). In this regard, we wouldgo a little further than the Judge, although we think that our viewis at least implicit within his observations in any event. In particular,we are of the view that a differentia which is capable of beingunderstood or which “is capable of being apprehended by the intellector understanding” (see Lim Meng Suang at[47]) may nevertheless still be unintelligible to the extent that it is so unreasonable as to be illogical and/or incoherent.We recognise that this last-mentioned proposition may open the doorsto potential abuse, so we include the caveat that the illogicalityand/or incoherence must be of an extreme nature.It must be so extreme that no reasonable person wouldever contemplate the differentia concerned as being functional as intelligible differentia. Put simply,the illogicality and/or incoherence of the differentia concernedmust be such that there can be no reasonable dispute (let alone controversy)as to that fact from a moral, political and/or ethical point of view(or, for that matter, any other point of view). Where such illogicality and/orincoherence is present, there is no point even beginning to talk aboutthe concept of equality (let alone whether there has been a violation ofthe right to equality contrary to Art 12) because noreasonable classification even exists in the first place.In such circumstances, Limb (b) is not engaged at all. More generally, therewould be no way in which the statute concerned can possibly passlegal muster in so far as the concept of equality embodied withinArt 12 is concerned.

68     Assuming,however, that there is an intelligible differentia in place suchthat Limb (a) of the “reasonable classification” test is in factsatisfied, it must further be demonstratedthat Limb (b) has been satisfied as well in orderfor the “reasonable classification” test as a whole to be satisfied.To recapitulate, where Limb (b) is concerned, it must be demonstratedthat the differentia identifiedpursuant to Limb (a) bears a rational relation to the purpose and object sought to be achievedby the statute in question. It is clear that a prerequisite forthe satisfaction of Limb (b) is that the purpose andobject of the statute in question mustfirst be determined or ascertained. Once that purposeand object has been determined or ascertained, a rationalrelation between the differentia identified pursuantto Limb (a) and that purpose andobject must then be demonstrated in order for Limb (b) to be satisfied.Again, this is both logical as well as commonsensical: if thereis no rational relation between the differentia identified pursuantto Limb (a) and the purpose and object of the statute concerned,there is, ex hypothesi, no logicaland/or coherent basis upon which to hold that the statute is based on reasonable classification to begin with.Although the absence of such a rational relation can take many forms,it seems to us that the requisite rational relation will – moreoften than not – be found. This is because (as the Judge held in Lim Meng Suang at [98]) there is no need for a perfect relationor “complete coincidence” [emphasisadded] between the differentia in question and the purpose and objectof the statute concerned. As the “reasonable classification” testitself prescribes, the relation need only be a rational one.That having been said, this does not necessarily mean thata rational relation will always befound to exist by the courts. For example, if there is a clear disconnect between the purposeand object of the impugned statute on the one hand and the relevantdifferentia on the other, the “reasonable classification” test willbe held not to have been satisfied. But,all this is easily stated in the abstract. What will determine thefinal outcome in any given case will be thespecific facts as well as context before the court. Weshould add, at this juncture, that ascertaining the purpose andobject of a statute will not always be easy. Indeed, as we shallsee later in this judgment (below at [116]–[152]), ascertainingthe purpose and object of s 377A is both an extremely complex aswell as extremely difficult exercise.

69     Asis the position with regard to Limb (a), the key inquiry under Limb (b)does not really address the conceptof equality as such. Its focus,as explained above, is primarily logical as well as commonsensical.Put simply, if there is no rational relation between the relevantdifferentia on the one hand and the purpose and object of the statuteconcerned on the other, there is (again) no point even beginningto talk about the concept of equality (let alone whether there hasbeen a violation of the right to equality contrary to Art 12) because no reasonable classification even exists in the first place. Furthermore, if Limb (b)is not satisfied, it would also follow that the statute in question cannot possibly satisfy the concept ofequality embodied within Art 12 in any event –a result that will likewise obtain if Limb (a) is not satisfied(as noted above at [64] and [67]).

70     Itshould be noted that the threshold nature of the “reasonable classification”test helps to balance the need toaccord as much legislative leeway as possible to the legislatureagainst the need to ensure that laws which are patently illogicaland/or incoherent do not pass legal muster. In a related vein, thistest simultaneously prevents the courts from becoming “mini-legislatures”(a point which is dealt with in more detail below, especially at[77]).

71     Asmentioned above at [61]–[62], the fact that the “reasonable classification”test is a threshold test which does not in itself furnish the requisitecriteria for determining whether the right to equality under Art 12 hasbeen violated does not mean thatthis test ought therefore to be dispensed with. Indeed, it is quite the opposite. As we pointed out earlier(at [62] above), the “reasonable classification” test serves a minimal– but vital – threshold functionof requiring logic and coherence in the statute concerned, withoutwhich the court cannot meaningfully proceed to determine whetherthat statute contravenes Art 12. Put simply, there is no point analysingthe statute concerned from the perspective of the concept of equalityif the “reasonable classification” test is not even satisfied inthe first place. Looked at in this light, the“reasonable classification” test is by no means a merely mechanicalor purely procedural test. It does, in fact, contain substantiveelements. That having been said, it is important to reiterateat the same time that the “reasonable classification” test in itself does not really aid the courtin ascertaining whether or not the concept of equality under Art 12(1) has been violated. Let us elaborate.

(2)    The “reasonable classification”test in relation to the concept of equality in Art 12(1)

72     Itwill be recalled that Art 12(1) reads as follows:

Equalprotection

12.—(1) All persons are equal before the law and entitled to the equal protection of the law.

[emphasis added in bold italics and underlinedbold italics]

73     Itwill be seen that Art 12(1) comprises two main limbs. The first states that “[a]ll persons are equal before the law” [emphasis added].No reasonable person would seriously attempt to controvert thisparticular statement as it is just and fair from both a logicalas well as an intuitive point of view. However, what precisely doesit mean when we state that “[a]ll persons are equal before the law”?In the first place, what does the phrase “the law” in this particularlimb of Art 12(1) mean? Does it refer to thelaw in general? If so, then this particular limb is nomore than a declaratory statementthat is, as just alluded to, self-evident. Alternatively, does thephrase “the law” refer specifically to the statute that is soughtto be impugned as being inconsistent with Art 12(1) and, hence,unconstitutional pursuant to Art 4? In the context of the presentappeals, “the law” would then refer to s 377A. But, even if thatbe the case, this limb of Art 12(1) does not really assist us inso far as the concept of equality is concerned – on whatlegal basis and on what legal criterion (or criteria) canthe court find that a particular person or group of persons hasnot been accorded equality of treatment in relation to s 377A? Presumably,all those who fall within the scope of s 377A would be consideredto be “equal” before that particular provision, but that would hardlybe an argument which the Appellants would want to rely upon. Ifthe Appellants seek to argue that they are not being accorded equaltreatment because s 377A applies only to them (ie, Lim,Chee and Tan) and no other male homosexuals, that would be an entirelyseparate and distinct argument which would require a separate criterion(or set of criteria) for determining whether the Appellants’ Art 12(1)rights have indeed been violated.

74     What,then, about the second limb of Art 12(1), which states that “[a]llpersons are … entitled to the equal protectionof the law” [emphasis added]? As in the case of the firstlimb, what does “the law” in this second limb refer to? If it refersto the law in general, then, likewiseas in the case of the first limb, the second limb would be no morethan a declaratory statement whichis, by its very nature, self-evident. Alternatively, if the phrase“the law” in the second limb of Art 12(1) refers to the impugned statute(in the present appeals, s 377A), this would be of no assistanceto the Appellants since they are not seekingequal protection under s 377A.Indeed, what they desire is quite different,in that what they are seeking is protection from prosecution under s 377A.

75     Itshould be noted that Ms Barker, in her oral submissions before this court,was of the view that the two aforementioned limbs of Art 12(1) ought tobe read as an integrated whole. We agree with this to the extentthat the second limb follows from the first. However, this doesnot preclude (for the purposes of analytical clarity) the approachto the two limbs which has just been set out.

Is there an additional testof illegitimacy?

76     Wepause at this juncture to deal with the Judge’s observation in Lim Meng Suang that a statute can stillbe rendered unconstitutional even if it satisfiesthe “reasonable classification” test, provided itcan be demonstrated that the object ofthat statute is illegitimate (at[114]–[116]). Not surprisingly, the Appellants have endorsed thisparticular proposition. We also note that counsel for the Respondent,Mr Aedit Abdullah SC (“Mr Abdullah”), whilst not purporting to endorsethis proposition in toto, indicatedthat he was willing (but only by way of a fallback argument) to admitto a test of unreasonableness alongthe lines embodied in this court’s decision in YongVui Kong (at [111]–[119]) and the seminal English Court ofAppeal decision of Associated Provincial PictureHouses, Limited v Wednesbury Corporation [1948] 1 KB223 (“Wednesbury”) (cf Lim Meng Suang at [116]). We note, parenthetically,that there was no real elaboration by Mr Abdullah with regard tothe Respondent’s reliance on Yong Vui Kong inthis connection. In so far as the test of unreasonableness in Wednesbury is concerned, Lord Greene MR(with whom Somervell LJ and Singleton J agreed) described the requisitelevel of unreasonableness as involving (in the context of administrativelaw) a decision or conclusion that was “so unreasonable that noreasonable [public] authority could ever have come to it” (see Wednesbury at 230 and 234). We would,with respect, differ from all these aforementioned views. Let uselaborate.

77     Itis important to commence our analysis in this regard by referringto a fundamental proposition that constitutes part of the widerconcept of the separation of powers. Put simply, the courts are separate and distinct from the legislature.More specifically, whilst the courts do “make” law, this is onlypermissible in the context of the interpretation of statutes andthe development of the principles of common law and equity. It is impermissible for thecourts to arrogate to themselves legislativepowers – to become, in other words, “mini-legislatures”.This must necessarily be the case because the courts have no mandatewhatsoever to create or amend laws in a manner which permits recourseto extra-legal policy factors as well as considerations.The jurisdiction as well as the power to do so lie exclusively withinthe sphere of the legislature. Indeed,the power of the legislature to enact and amend laws is governedby quite a different procedure. Hence, the duty of a court is to interpret statutes enacted by the legislature;it cannot amend or modify statutes basedon its own personal preference or fiat as that would be an obvious(and unacceptable) usurpation of the legislative function.

78     Thelegislative powers which we have just discussed are different from thecourt’s role in developing the law – a task which it frequently undertakes.As already alluded to above, the courts do indeed develop the principlesof common law and equity. Indeed, as Lord Reid famously observedin an extra-judicial lecture (see “The Judge As Law Maker” (1972–1973)12 JSPTL (NS) 22 (“The Judge As Law Maker”)at p 22):

There was a time when it was thought almostindecent to suggest that judges make law – they only declare it.Those with a taste for fairy tales seem to have thought that insome Aladdin’s cave there is hidden the Common Law in all its splendourand that on a judge’s appointment there descends on him knowledgeof the magic words Open Sesame. Bad decisions are given when thejudge has muddled the pass word and the wrong door opens. But wedo not believe in fairy tales any more.

79     Theprocess of such development is, however, quitedifferent from the process of legislative enactmentor amendment of legislation, and is effected through development of case law. In this regard,it should be noted that the legislature can reject existing principles of common lawand equity. Put simply, the legislature can enact a statute overruling an existing principle of commonlaw or equity if the legislature thinks it fit to do so. However, absentsuch a situation, the courts can – and do – develop the principlesof common law and equity.

80     Aparadigm example of this may be seen in the law of negligence, commencingwith the seminal House of Lords decision of M’Alister(or Donoghue) (Pauper) v Stevenson [1932] AC 562 (morecommonly cited as “Donoghue v Stevenson”and referred to hereafter as “Donoghue”).This decision effected a sea change in this foundational area ofthe law of tort (see generally the valuable background prior tothis decision furnished in Edward H Levi, AnIntroduction to Legal Reasoning (University of Chicago Press,1949), as well as equally valuable background pertaining to the decisionitself in Geoffrey Lewis, Lord Atkin (Butterworths,1983; reprinted, Hart Publishing, 1999) at pp 51–67; see also MatthewChapman, The Snail and the Ginger Beer: TheSingular Case of Donoghue v Stevenson (Wildy, Simmonds& Hill Publishing, 2009) and The JuridicalReview – Donoghue v Stevenson: The Paisley Papers (Special Edition) (2013)). Indeed, thelaw of negligence has developed even further since Donoghue.For example, the House of Lords extended the law of negligence tocover liability for negligent misstatements in its path-breakingdecision in Hedley Byrne & Co Ltd v Heller& Partners Ltd [1964] AC 465 (“HedleyByrne”). In this regard, and several years prior to thedecision of the House in Hedley Byrne, Denning LJ(as he then was) adopted precisely the legal position which was ultimatelyendorsed in Hedley Byrne itself,but found himself in a minority inthe English Court of Appeal decision of Candlerv Crane, Christmas & Co [1951] 2 KB 164 (“Candler v Crane”). Indeed, Denning LJsignificantly referred in an extra-legal context to his powerfuldissenting judgment in Candler v Crane ashis “most important judgment” (see Lord Denning’s “Foreword” tothe inaugural volume of the Denning Law Journal ([1986] Denning LJ1 at p 1)). In the course of delivering his judgment in that case, Denning LJdrew a distinction (at 178) between “timorous souls who were fearfulof allowing a new cause of action” and “bold spirits who were ready toallow it [viz, a new cause of action]if justice so required”. Indeed, the ultimate vindication by theHouse of Lords in Hedley Byrne ofDenning LJ’s views in Candler v Crane bearsample testimony to the virtues of the courts being “bold spirits”.And something of that spirit can be seen in the course of the developmentof the law of negligence in countries where English law has beentransplanted – as witnessed, for example, in the decision of this courtin Spandeck Engineering (S) Pte Ltd v DefenceScience & Technology Agency [2007] 4 SLR(R) 100 (seealso generally the valuable survey as well as analysis in DavidTan & Goh Yihan, “The Promise of Universality – The Spandeck Formulation Half a Decade on”(2013) 25 SAcLJ 510).

81     Thebriefest of summaries of the development of the law of negligence setout in the preceding paragraph is but one illustration not onlyof the nature of the courts’ development of the principles of commonlaw and equity, but also (and more importantly in the context ofthe present appeals) of the fact that the courts will not hesitateto develop the law in appropriate circumstances,taking on the nature of “bold spirits” in those circumstances (indeed,Ms Barker herself supported thisparticular point by citing decisions of this court on the developmentof the common law in her furtherwritten reply submissions in an attempt to persuade this court to adopta more activist approach towards the interpretation of Art 12(1);the decisions which she cited in this regard were LauSiew Kim v Yeo Guan Chye Terence and another [2008] 2 SLR(R)108 and Chandran a/l Subbiah v Dockers Marine Pte Ltd (Owners of the Shipor Vessel “Tasman Mariner”, third party) [2009] 3 SLR(R)995). However, in other situations,the courts will necessarily be more circumspect. This is especiallythe case with respect to matters which are uniquely within the sphereof the legislature. Whilst, forexample, a court will not hesitate to interpret astatute, it will not – indeed, cannot – amendor modify a statute basedon its own personal preference or fiat (or even its viewof what it thinks the relevant extra-legal considerations should be)because (as already noted above at [77]) that would be an obviousand unacceptable usurpation of the legislative function.

82     Here,we come to the crux of the issue at hand. To permit the court thepower – over and above its powerof scrutinising legislation pursuant to the“reasonable classification” test – to declare a statuteinconsistent with Art 12(1) (and, therefore, unconstitutional underArt 4) because the object of thatstatute is illegitimate would precisely beto confer on the court a licence to usurp the legislative functionin the course of becoming (or at least acting like) a “mini-legislature”.Put another way, only the legislature has the powerto review its own legislation and amend legislation accordinglyif it is of the view that this is necessary. The courts, in contrast, have no suchpower – nor ought they to have such power.

83     Indeed,to argue, as the Appellants seemed to do, that the court has theduty to declare a statute unconstitutional if its object is “illegitimate” does not explain the legal basis upon which the courtcan find the object to be illegitimate in the first place.If the argument is that the object of the statute is illegitimatebecause that object is unconstitutional, this would lead to a circularitywhich, ex hypothesi, lacks the requisiteexplanatory as well as normative power. The courts are called upon– and ought – to be “bold spirits”, but only on appropriate occasions. Putsimply, they cannot claim to actas “bold spirits” when they are in fact actingoutside their proper sphere of jurisdiction. This pointwill become particularly important in the analysis below – especiallyin the face of the Appellants’ calls to this court to update thelaw on s 377A based purely on extra-legal arguments whichare appropriate only in the legislative sphere. Putsimply but clearly, to permit the court to effectively amend (asopposed to interpret) the law in this area would not only entailthe court acting beyond its jurisdiction, but also permit the Appellantsto obtain by the (judicial) backdoor what they ought to have soughtto obtain by the (legislative) front door.

84     Thathaving been said, an important qualification isin order at this juncture. The important qualification is this:to the extent that there are serious flaws withregard to the intelligibility ofthe differentia embodied in a statute and/or a cleardisconnect between that differentia and the purpose andobject of the statute, the court will hold that the statute doesnot pass legal muster under Art 12(1). Thismay be viewed, in substance at least, as introducing a limited element of illegitimacy whichis embodied in the “reasonable classification” test. However, it is vitally important to note that thiselement of illegitimacy is not an additionaltest over and above the “reasonable classification” test; it is,instead, no more than an application of the “reasonableclassification” test. The only legal testfor the purposes of Art 12(1) is the “reasonable classification”test, and it is important to note that in applying this test, thecourt would be applying a legal test that is not based on extra-legal considerations,but rather, one that is clearly within its remitas a court of law (as opposed toacting as if it were a “mini-legislature”).

85     Putsimply, in determining the constitutionality of an impugned statuteunder Art 12(1), there are no legal standards whichcan guide the court in ascertaining whether the object of that statuteis illegitimate. In the nature of things, any purported standardswould be extra-legal in nature. Thisbrings us back to the point just made – that thelegislature is the appropriate forum to canvass the issueof whether or not the object of a particular statute is illegitimatebecause the extra-legal standards pertinent to such an issue wouldbe quintessentially within the sphere of legislative review.

86     Atthis juncture, we note (as mentioned above at [76]) that Mr Abdullahwas prepared (albeit only by way of a fallback position) to endorsethe test in Wednesbury. This particulartest is premised on the concept of unreasonableness.Whilst it does constitute a legal standard, it is not, in our view,an appropriate legal standard in the context of a challenge to the constitutionality of a statute. More importantly, even if the concept of unreasonablenesslaid down in Wednesbury were applicable,it would not aid this court inasmuch as the present constitutionalchallenge to s 377A is premised on extra-legal argumentswhich, as we have already noted, are quintessentially within thepurview of the legislature. It alsobears reiterating what has just been alluded to above at [84] – viz, that in situations of extreme illogicality and/or incoherence,the statute concerned would probably not beable to pass legal muster under one or bothlimbs of the “reasonable classification” test inany event. Indeed, in such situations, the statute might possiblyinfringe other Articles of the Singapore Constitutionas well (cf also LimMeng Suang at [116]).

87     Wenote that Ms Barker cited Report of the Constitutional Commission1966 (27 August 1966) (“the 1966 Report”), the reportof the constitutional commission chaired by the then Chief Justice WeeChong Jin, to buttress her argument that Art 12(1) oughtto be invoked by this court (via a declaration of s 377A’s unconstitutionality)in order to ensure that the Appellants were accorded equality beforethe law. In particular, Ms Barker referred to para 32 of the 1966Report, which dealt with Art 8 of the then Constitution of Malaysia(the equivalent of Singapore’s present Art 12) and which statedas follows:

We deal now with Article 8 of the presentConstitution of Malaysia. Having regard to our Terms of Reference,our recommendations on the form and substance that this Articleshould take and contain will constitute the very core of our viewson the whole problem of minority rights in Singapore. In the first place we deem it essential that theprinciple of equality before the law and equal protection of thelaw for all persons should be clearly and categorically laid down. Secondly, it should be no less clearly and categoricallylaid down that there shall be nodiscrimination in any law or in theeffect of any law, except as expressly authorised by the Constitution, againstany citizen on the ground only of race, religion,place of birth or descent. Lastly, it should also be clearly and categoricallylaid down that there shall be nodiscrimination in the administrationof any law, except as expressly authorised by the Constitution,against any person on the ground only of race, religion,place of birth or descent. [emphasis added in italics, bolditalics and underlined bold italics]

88     Ms Barkerrelied on all the italicised words set out in the above quotationto support the argument mentioned in the preceding paragraph. Inour view, the sentence “In the first place we deem it essentialthat the principle of equality before the law and equal protectionof the law for all persons should be clearly and categorically laiddown” is but a paraphrase of thelanguage of Art 12(1) itself, and to that extent, is clearly declaratory andaspirational in nature (see also below at [90]). For the reasons explainedabove (at [73]–[74]), this particular sentence (like the words in Art 12(1))does not really set out any concrete legal principleswhich can guide the courts, such as the “reasonable classification”test. Indeed, the “reasonable classification” test itself was formulatedby the courts, and it does (as we have explained above) furnishthe courts with particular legal principlesthat give effect (albeit not fully) to the concept of equality embodiedin Art 12(1). Significantly, the last two sentences of para 32 ofthe 1966 Report, which correspond to Art 12(2),refer specifically to the concept of“discrimination” [emphasis added],albeit in the context of the proscription of discrimination on specific grounds (as opposed to a general proscriptionof discrimination as such). Indeed, that the specificand applicable principles relating to the right to equality underthe Singapore Constitution are located in Art 12(2) – rather thanArt 12(1) – is confirmed by the following extract from the verynext paragraph of the 1966 Report (viz, para 33):

We consider, having regard to the multi-racial, multi-cultural, multi-lingual andmulti-religious composition of the population of Singapore and ofits citizens, that the recommendationswe have outlined in the preceding paragraph will notonly form an impregnable shield against racial communalismand religious bigotry as well as an effective weapon to wipe away anyfears the minorities may harbour concerning discriminatory treatmentbut will also lay a firm and lasting foundation on which to builda democratic, equal and just multi-racial society in Singapore.… [emphasis added in italics and bold italics]

Read in its proper context, the reference to “recommendations”in the extract just quoted is clearly a reference to the principlesembodied in Art 12(2), and not Art 12(1).

89     Thiswould be an appropriate point to turn to a consideration of the legalrelationship between Art 12(1) and Art 12(2).

The legal relationship betweenArt 12(1) and Art 12(2)

Art 12(1) and Art 12(2) readinter se

90     Torecapitulate, the analysis proffered above at [73]–[74] is that Art 12(1) appears to be more of a declaratory (as well as aspirational) statement ofprinciples, as opposed to a set of specific legal criteriaas such. This is, perhaps, not surprising as Art 12(1) is framedat a very general level. Indeed,as alluded to in the analysis proffered above, the two limbs of Art 12(1)are both logically and intuitively attractive, and their content wouldnot be something that a reasonable and fair-minded person would seriouslycontrovert. However, it is perhaps precisely because Art 12(1) is framedat such a general level that it does not furnish the specific legal criteria which can guidethe courts in determining, in specific fact situations, whethera particular statute violates Art 12. That having been said, itbears reiterating that any statute must neverthelesspass (threshold) muster under the “reasonableclassification” test before it can be found to be consistentwith Art 12. More importantly, we emphasise that what we have justsaid (about the lack of specific legal criteria in Art 12(1)) does not mean that there are no specific legalcriteria which can guide the court in specific fact situations.On the contrary, in addition tothe “reasonable classification” test,Art 12(2) furnishes specific aswell as concrete legal criteria which ensure that any statute whichis discriminatory within the scope and meaningof Art 12(2) (and, hence, contravenes the concept ofequality embodied in Art 12) will, pursuant to Art 4, be void tothe extent of such contravention and inconsistency. On a practicallevel, parties are free to challenge the constitutionality of astatute under Art 12(1) or Art 12(2) or, indeed, under both provisions(as was the case here). The court’s decision on the constitutionality(or otherwise) of the impugned statute would ultimately depend onthe particular facts and circumstances of the case.

91     Article 12(2)(also set out earlier at [55] above) reads as follows:

(2)    Except as expressly authorised by this Constitution,there shall be no discrimination against citizensof Singapore on the ground only of religion, race, descent or place of birthin any law or in the appointmentto any office or employment under a public authority or in the administrationof any law relating to the acquisition, holding or disposition ofproperty or the establishing or carrying on of any trade, business,profession, vocation or employment. [emphasis added initalics, underlined italics, bold italics and underlined bold italics]

92     Itcan immediately be seen that Art 12(2) furnishes specificlegal criteria as to what constitutes discrimination and is therefore prohibited from a constitutional perspective.In many ways, the approach adopted in Art 12(2) is more structuredand principled compared to the approach under open-ended constitutionalprovisions in some other jurisdictions that place the courts inthe unenviable position of being (in effect) “mini-legislatures”of sorts. It is also noteworthy (indeed, crucial, in so far as the presentappeals are concerned) that within the prohibited grounds of discriminationdelineated in Art 12(2), there is no referenceto “sex”, “sexual orientation” or “gender”. This is notsurprising. Not all Constitutions will be exactly the same. EachConstitution is supposed to reflect the social mores of the societywhich it emanates from. It is true that such social mores can – andoften will – change over time. However, there is nothing precludinga legislature from amending theConstitution accordingly. In the Singapore context, the provisiongoverning amendment of the Singapore Constitution is Art 5(2), whichstates:

A Bill seeking to amend any provision inthis Constitution shall not be passed by Parliament unless it hasbeen supported on Second and Third Readings by the votes of notless than two-thirds of the total number of the elected Membersof Parliament.

An amendment of the Singapore Constitution is obviously beyond the remit of our courts. It isnevertheless important to emphasise that the possibility of constitutionalamendment just referred to furnishes our Parliament with the necessary flexibility to ensure that the SingaporeConstitution reflects the prevailing social mores as well as aspirations of Singaporesociety.

93     Beforeproceeding to consider some other constitutional provisions in acomparative context, we ought to briefly address a further argumentby Ms Barker based on the fact that Art 12(2) applies only to citizensof Singapore. She argued that in contrast, Art 12(1)was framed more broadly to apply to “[a]ll persons”[emphasis added], and hence (citing the paragraph of the 1966 Reportquoted above at [87]), Art 12(1) ought to be given an expansive interpretation that goes beyond the “reasonable classification”test so as to accord equal protection to all persons. However, that brings us back full circleto the difficulties outlined above (especially at [77]) to the effectthat the courts would then become “mini-legislatures”. Indeed, theargument proffered by Ms Barker is a double-edged legal sword inasmuchas if Art 12(1) could be construed and applied in the broad mannerwhich she suggested, why, then, was it necessary to promulgate Art 12(2)? After all, taking the broad approachcanvassed by Ms Barker, every prohibited ground of discriminationreferred to in Art 12(2) would necessarily be subsumed under Art 12(1) and Art 12(2)would then be rendered redundant. In any event,nothing in this particular argument by Ms Barker impacts the respectivecases of not only her clients but also Mr Ravi’s client inasmuchas all the Appellants are citizens of Singapore. Be thatas it may, it also bears emphasising that even though we do notaccept Ms Barker’s argument that an expansive interpretation shouldbe given to Art 12(1), this does not meanthat non-citizens are without any rights. They have rights underArt 12(1), in that they can avail themselves of the “reasonableclassification” test. Indeed, it can be said that this is the general legal position in any event.It should also be borne in mind that non-citizens are also entitledto other specific fundamental rights under the Singapore Constitution,some of which are set out in the next paragraph.

94     Itis also not – in principle – unfair that citizensof Singapore are given further (andentrenched) rights under Art 12(2). Indeed, there areother fundamental rights in Pt IV of the Singapore Constitutionwhich only citizens of Singapore canavail themselves of (see, for example, Art 13 in relation to theprohibition of banishment and the right to freedom of movement;Art 14 in relation to the right of freedom of speech, assembly andassociation (see also the decision of this court in ReviewPublishing Co at [254] and [257]); and Art 16(1) in relationto rights in respect of education). However, there are also manyother Articles in Pt IV of the Singapore Constitution which (probablybecause they impact any person in the most fundamental manner) apply to all persons (see, for example, Arts 9(1)–9(4)in relation to liberty of the person; Art 10(1) in relation to theprohibition of slavery and forced labour; Art 11 in relation toprotection against retrospective criminal laws and repeated trials;and Art 15 in relation to freedom of religion). In any event, thequestion of whether or not non-citizensshould be given similar rights as citizens of Singapore in the presentcontext, whether with respect to some or all of the prohibited groundsof discrimination set out in Art 12(2) (or, albeit less probably, outsideArt 12(2)) is obviously something beyond the remit of the courts, and,as already mentioned, is in any event irrelevant on the facts ofthe present appeals.

Comparative constitutional provisions

(1)    Constitutional provisionswhich make express reference to “sex”, “sexual orientation” and/or“gender”

95     Itis instructive, in our view, that in contrastto Art 12(2), there are constitutionalprovisions from other jurisdictions which expresslyprohibit discrimination on the grounds of “sex”, “sexual orientation”or “gender” (or a combination thereof).

96     Oneexample is Art 8(2) of the Malaysian Constitution. The material partof Malaysia’s Art 8 reads as follows:

Equality

8. (1) All persons are equalbefore the law and entitled to the equal protection of the law.

(2)    Exceptas expressly authorized by this Constitution, there shall be no discriminationagainst citizens on the ground onlyof religion, race, descent, place of birth or gender inany law or in the appointment to any office or employment undera public authority or in the administration of any law relatingto the acquisition, holding or disposition of property or the establishingor carrying on of any trade, business, profession, vocation or employment.

[emphasis added in italics and bold italics]

97     Turningto the Indian Constitution, which prohibits discrimination on thegrounds of (inter alia) sex, therelevant Articles on the right to equality read as follows:

Rightto equality

14. Equality before law.—TheState shall not deny to any person equality before the law or theequal protection of the laws within the territory of India.

15. Prohibition ofdiscrimination on grounds of religion, race, caste,sex or place ofbirth.—(1) The State shall not discriminate against any citizen on grounds only of religion,race, caste, sex, place of birthor any of them.

(2) No citizen shall, on grounds only ofreligion, race, caste, sex, placeof birth or any of them, be subject to any disability, liability,restriction or condition with regard to—

(a) accessto shops, public restaurants, hotels and places of public entertainment;or

(b) theuse of wells, tanks, bathing ghats, roads and places of public resortmaintained wholly or partly out of State funds or dedicated to theuse of the general public.

(3) Nothing in this article shall preventthe State from making any special provision for women and children.

(4) Nothing in this article or in clause (2)of article 29 shall prevent the State from making any special provisionfor the advancement of any socially and educationally backward classesof citizens or for the Scheduled Castes and the Scheduled Tribes.

(5) Nothing in this article or in sub-clause (g)of clause (1) of article 19 shall prevent the State from makingany special provision, by law, for the advancement of any sociallyand educationally backward classes of citizens or for the ScheduledCastes or the Scheduled Tribes in so far as such special provisionsrelate to their admission to educational institutions including privateeducational institutions, whether aided or unaided by the State,other than the minority educational institutions referred to inclause (1) of article 30.

16. Equality of opportunityin matters of public employment.—(1) There shall be equalityof opportunity for all citizens in matters relating to employmentor appointment to any office under the State.

(2) No citizen shall,on grounds only of religion, race, caste, sex,descent, place of birth, residence or any of them, be ineligiblefor, or discriminated against in respect of, any employment or officeunder the State.

(3) Nothing in this article shall preventParliament from making any law prescribing, in regard to a classor classes of employment or appointment to an office under the Governmentof, or any local or other authority within, a State or Union territory,any requirement as to residence within that State or Union territoryprior to such employment or appointment.

(4) Nothing in this article shall preventthe State from making any provision for the reservation of appointmentsor posts in favour of any backward class of citizens which, in theopinion of the State, is not adequately represented in the servicesunder the State.

(4A) Nothing in this article shall preventthe State from making any provision for reservation in matters ofpromotion, with consequential seniority, to any class or classesof posts in the services under the State in favour of the ScheduledCastes and the Scheduled Tribes which, in the opinion of the State,are not adequately represented in the services under the State.

[emphasis added in italics, bold italicsand underlined bold italics]

98     Section 15of the Canadian Charter of Rights and Freedoms likewise containsan express prohibition of discrimination on the grounds of (inter alia) “sex”, as follows:

15. (1) Everyindividual is equal before and under the law and has the right to theequal protection and equal benefit of the law without discriminationand, in particular, without discrimination based on race, nationalor ethnic origin, colour, religion, sex,age or mental or physical disability.

(2) Subsection (1) does not preclude anylaw, program or activity that has as its object the ameliorationof conditions of disadvantaged individuals or groups including thosethat are disadvantaged because of race, national or ethnic origin,colour, religion, sex, age or mentalor physical disability.

[emphasis added in bold italics]

99     Finally,to take just one more (and even clearer) illustration, s 9 of ch 2of the Constitution of South Africa, which prohibits discriminationon the grounds of (inter alia) gender,sex and sexual orientation, readsas follows:

9. Equality.—(1) Everyoneis equal before the law and has the right to equal protection andbenefit of the law.

(2) Equality includes the full and equalenjoyment of all rights and freedoms. To promote the achievementof equality, legislative and other measures designed to protector advance persons, or categories of persons, disadvantaged by unfairdiscrimination may be taken.

(3) The state may not unfairly discriminatedirectly or indirectly against anyone on one or more grounds, includingrace, gender, sex,pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability,religion, conscience, belief, culture, language and birth.

(4) No person may unfairly discriminatedirectly or indirectly against anyone on one or more grounds interms of subsection (3). National legislation must be enacted toprevent or prohibit unfair discrimination.

(5) Discrimination on one or more of thegrounds listed in subsection (3) is unfair unless it is establishedthat the discrimination is fair.

[emphasis added in bold italics]

(2)    Open-ended constitutionalprovisions

100    Asmentioned above at [92], there are, in contrast, other jurisdictions wherethe corresponding constitutional provision on the right to equalityis open-ended. The paradigm exampleis the US Constitution in particular, theFourteenth Amendment, which reads as follows:

AMENDMENT XIV

SECTION 1.

All persons born or naturalized in theUnited States, and subject to the jurisdiction thereof, are citizensof the United States and of the State wherein they reside. No Stateshall make or enforce any law which shall abridge the privilegesor immunities of citizens of the United States; nor shall any Statedeprive any person of life, liberty, or property, without due processof law; nor deny to any person within its jurisdiction the equalprotection of the laws.

101    Itcan be seen that the provision just quoted in the preceding paragraphis open-ended inasmuch as it does not containany equivalent of Art 12(2). Not surprisingly, therefore,the US courts (in particular, the US Supreme Court) have taken theview that different grounds of discrimination will attract differentlevels of scrutiny, with the legal principles applicable to thedifferent grounds to be enunciated and developed through case law. Had, in fact, the FourteenthAmendment to the US Constitution contained a provision which was equivalent to our Art 12(2), the positionmight have been quite different. We pause to observe, parenthetically,that an open-ended provision on the right to equality in a Constitutionbrings problems and difficulties of its own. How, for example, isthe court to decide which particular ground of discriminationought to come within the ambit of that provision? There is everydanger that the court could end up acting like a “mini-legislature”. Indeed,it might have no choice but to doso, except, perhaps, in the clearest instances (which would, ex hypothesi, have the endorsement ofat least the majority of the population in that particular jurisdiction,although there would be very real and practical difficulties inthe court’s ability to ascertain theexistence of such endorsement in the first place).

A brief summary of our analysisthus far

102    Abrief summary at this juncture is apposite, but it should be readand understood in conjunction with the detailed analysis profferedabove:

(a)     The“reasonable classification” test is the applicable test in Singaporefor determining the constitutionality of a statute under Art 12(1).It is a threshold test inasmuchas a failure to satisfy it (by satisfying both Limb (a) and Limb (b) of the test) will resultin the statute concerned being rendered void without thecourt even having to directly engagethe concept of equality as such. This is because the statute concernedwould be so illogical and/or incoherent that, ex hypothesi,it cannot possibly even begin to satisfy the concept of equalityembodied in Art 12(1). To that extent, the “reasonable classification”test contains substantive elements which impact the concept of equalityitself.

(b)     Article 12(1) is more declaratory and aspirationalin nature. However, as stated at sub-para (a) above, any statutewhich does not satisfy the “reasonable classification” test willnecessarily be in contravention of Art 12(1).

(c)     Tothe extent that both limbs of the “reasonable classification” testembody the requirements of logic and/or coherence, it can be said thata statute is illegitimate if andto the extent that either or both of these requirements is not satisfied because the statute failsto pass muster under one or both of the limbs of the “reasonable classification”test. For the avoidance of doubt, it should be emphasised that thereis no further test of illegitimacy (vis-à-vis the objectof the impugned statute) for the detailed reasons set out in this judgment.

(d)     Article 12(2) prohibits specific groundsof discrimination, which are the only groundsof discrimination that are proscribed under the Singapore Constitution.Any discrimination (albeit only) on any of the grounds stated inArt 12(2) will render the statute concerned void pursuant to Art 4to the extent of the inconsistency with Art 12(2). Article 12(2)sets out a structured and principled approach to the right to equality,as compared to constitutional provisions in other jurisdictionswhich are more open-ended and which might therefore vest too much“legislative” power in the courts. Although only specific groundsof discrimination are prohibited under Art 12(2), the necessaryflexibility to include additional prohibited grounds of discriminationexists inasmuch as Art 12(2) can be amended by the Singapore Parliament(pursuant to Art 5 of the Singapore Constitution) in order to reflectthe prevailing social mores as well as aspirations of Singaporesociety at any given point in time. Whilst Art 12(2) applies onlyto citizens of Singapore, non-citizens are nevertheless still accordedprotection under Art 12(1) pursuant to the “reasonable classification”test.

103    Letus now turn to apply the principlesset out above to the facts of the present appeals.

Our decision on whether s 377Aviolates Art 12(1)

Our approach

104    Asalready mentioned earlier, the “reasonable classification” testmust necessarily be the first legal port of call. This court mustalso consider whether or not the facts of the present appeals fall(more specifically) within Art 12(2). However,before proceeding to examine these two issues, there is a significantpreliminary issue that needs to be considered: is there (as the Respondentargues and, not surprisingly, the Appellants refute) a presumption of constitutionality wheres 377A is concerned, given the fact that it was promulgated during colonial times when, exhypothesi, there was (at least literally speaking) noConstitution in existence in Singapore?

Is there a presumption of constitutionality?

105    Asalluded to above, the Appellants argue that the Respondent cannot relyon a presumption of constitutionality in so far as the legal statusof s 377A is concerned. In particular, they point to the fact thats 377A was enacted at a point in time when there was no Constitution inexistence in Singapore. In doing so, they draw a distinctionbetween laws enacted before Singapore became an independent sovereignState on 9 August 1965 (“pre-Independence laws”) and laws enactedthereafter (“post-Independence laws”).

106    Thedifficulty with the aforesaid distinction is that whilst there was (literallyspeaking) no Constitution in existence in Singapore at the time pre-Independencelaws were promulgated, these laws nevertheless constitute part ofthe corpus of Singapore law. In this regard, Art 162 of the SingaporeConstitution (“Art 162”), which provides for the continuation of existinglaws, might be usefully noted:

Existing laws

162.  Subjectto this Article, all existing laws shall continue in force on and afterthe commencement of this Constitution and all laws which have not beenbrought into force by the date of the commencement of this Constitutionmay, subject as aforesaid, be brought into force on or after its commencement,but all such laws shall, subject to this Article, be construed asfrom the commencement of this Constitution with such modifications, adaptations,qualifications and exceptions as may be necessary to bring them intoconformity with this Constitution.

Looked at in this light, it is difficult to regard pre-Independencelaws as being somehow “inferior” to post-Independence laws inasmuchas the former were promulgated during colonial times. Whilst therewas some discussion as to whether or not Art 162 had a substantive(as opposed to a merely technical (including linguistic)) effectin so far as the words “modifications, adaptations, qualificationsand exceptions” were concerned, this does not detract from the factthat pre-Independence laws do in fact constitute part of the corpusof Singapore law. If any of these laws is alleged to be unconstitutional,that will have to be determined (as in the present appeals) by thecourts in accordance with the relevant constitutional rules andprinciples.

107    Mr Abdullahaccepted (correctly, in our view) that whilst the presumption ofconstitutionality ought to still operate even in relation to pre-Independencelaws, the presumption might not, in the nature of things, operateas strongly as it would compared to post-Independence laws (which wouldnecessarily have been promulgated in the context of, inter alia, an elected legislature which,it can be assumed, would have fully considered all views beforeenacting the (post-Independence) laws concerned). As mentioned inthe preceding paragraph, it would, in our view, be too artificialand too extreme to discard the presumption of constitutionality altogetherin so far as pre-Independence laws are concerned. The approach advocatedby Mr Abdullah represents a viable middle-ground which avoids throwingout the baby together with the bathwater. Indeed, when viewed froma practical perspective, the court, in applying the presumptionof constitutionality, will always have regard to all the circumstancesof the case (including both the relevant text aswell as the context of the statute concerned).

108    Tosummarise, whilst the presumption of constitutionality applies in thecontext of the present appeals, this is subject to the precise factsand circumstances which we shall be considering in due course. Letus now turn to the application of the “reasonable classification”test to s 377A.

Application of the “reasonableclassification” test to s 377A

109    Asmentioned earlier at (inter alia)[60] above, the “reasonable classification” test comprises two limbs,both of which must be satisfied before the test is satisfied. Torecapitulate (albeit in the briefest of terms), Limb (a) requiresthe classification prescribed by the statute concerned to be foundedon an intelligible differentia, while Limb (b) requires a rational relationbetween that differentia and the object sought to be achieved bythe statute.

(1)    Is the classificationprescribed by s 377A based on an intelligible differentia?

110    Asalready noted above (at [23]), the Judge held in LimMeng Suang that it was clear that the classificationprescribed by s 377A was based on an intelligible differentia inasmuchas there was little difficulty in determining who fell within andwithout the provision. In his view (see LimMeng Suang at [47]–[48]):

47    TheFirst Limb requires that the classification prescribed by the impugnedlegislation must be based on an intelligible differentia. “Intelligible”means something that may be understood or is capable of being apprehendedby the intellect or understanding, as opposed to by the senses. “Differentia”is used in the sense of a distinguishing mark or character, some attributeor feature by which one is distinguished from all others. Scientifically,one talks of an attribute by which a species is distinguished fromall other species of the same genus.

48    Applying this to the present case,it is quite clear that the classification prescribed by s 377A – viz, male homosexuals or bisexual maleswho perform acts of “gross indecency” on another male – is basedon an intelligible differentia. It is also clear from the differentiain s 377A that the section excludes male-female acts and female-femaleacts. There is little difficulty identifying who falls within thisclassification and who does not. The Court of Appeal seemed to sayas much in Tan Eng Hong [(standing)] at[125]–[126]. In my view, the First Limb is satisfied and few cancavil with this conclusion.

111    Weagree with the Judge and his reasoning as set out in the preceding paragraph.Indeed, the intense controversy surrounding the debate on s 377Ain the extra-legal sphere in general and during the parliamentary debatesin October 2007 on proposed changes to the revised edition of the PenalCode then in force (ie, the PenalCode (Cap 224, 1985 Rev Ed) (“the 1985 Penal Code”)) in particulardemonstrate that the differentia embodied in s 377A, whilst controversial, is notunintelligible. Put simply, if the very elements of s 377Awere illogical and/or incoherent to begin with,there would have been no basis upon which the parties on each sideof this cavernous divide could have joined issue in the first place. Indeed,the controversy relates more to extra-legal argumentsthat are relevant to the debate as well as the decision in the legislative sphere (on whether s 377A shouldbe retained in our statute books or repealed).

112    Mr Raviargued that the differentia embodied in s 377A was not intelligiblebecause it was discriminatory inasmuch as it discriminated betweenmale homosexuals on the one hand and female homosexuals on the other.He also utilised (as did Ms Barker), in oral arguments, the analogyof a law banning all women from driving on the roads.

113    Withrespect, Mr Ravi has conflated the“reasonable classification” test (in particular, the first limbthereof, which is the focus of the present analysis) on the onehand and the issue of whether or not there has been discriminationon the other. Put simply, the latter issue (viz,whether or not there has been discrimination) has been merged withthe first limb of the “reasonable classification” test. It willbe recalled that the “reasonable classification” test is only a threshold test (see above at, inter alia, [61]–[62]). As we have alreadyexplained, this does not mean that the test is merely technicalor mechanistic; instead, it does, to some extent, impact the conceptof equality in Art 12 itself (see above at [62] and [71]). Indeed,the “reasonable classification” test, in embodying the requirementsof logic and/or coherence, also introduces (to that extent)a limited element of legitimacy,although it has been emphasised above (at [84]–[85]) that there is no further test of illegitimacy (vis-à-vis the object of the impugned statute) assuch. Looked at in this light, the differentia embodied in s 377Ais both logical and coherent. Mr Ravi obviously begs to differ.However, this difference in view is premised on substantivecriteria that lie outside the scope of the “reasonable classification”test altogether. In the Singapore context,these substantive criteria lie, instead, within the purview of Art 12(2) (see above at [92]). Put simply, contraryto what Mr Ravi appeared to suggest, the “reasonable classificationtest” is not the only (and definitive)test for determining whether the right to equality under Art 12 asa whole has been violated. This is because even if an impugned statute passeslegal muster under the “reasonable classification” test for the purposesof Art 12(1), it will also haveto pass legal muster under Art 12(2). As we shall show below (at[181]–[182]), s 377A not only passes legal muster under the “reasonableclassification” test, but also does not run foul of Art 12(2) for the simplereason that Art 12(2) does not addressor encompass the subject matter of s 377A.

114    Similarreasoning to that set out in the preceding paragraph would applyto Mr Ravi’s and Ms Barker’s arguments (by analogy) with respectto a law which bans all women from driving on the roads. We wouldobserve, parenthetically, that, in any event, such a law is an extremeprovision which would probably not be enacted by a reasonable Parliamentin the Singapore context. That having been said, anything is, ofcourse, possible. Should such a law indeed be passed by the SingaporeParliament, there would, in our view, be at least an arguable casethat that law would not pass legal muster under the “reasonableclassification” test. The differentia embodied in that law might,arguably, be illogical and/or incoherent for the purposes of the firstlimb (ie, Limb (a)) of the “reasonableclassification” test. Further, as pointed out above, there is alsoa second limb (ie, Limb (b)) ofthe “reasonable classification” test which must be satisfied, Limb (a)and Limb (b) being consecutive and cumulative aspectsof the test. Looked at in this light, it is at least arguable thatthere might not be a rational relation betweenthe differentia embodied in the aforementioned law on the one handand the purpose and object of that law on the other – unless the purposeand object of that law is precisely to ban all women from driving. However,if that is indeed the case, we would come back full circle, so to speak,to the issue (just mentioned) of whether or not the differentia(as identified under the first limb of the “reasonable classification”test) is illogical and/or incoherent. No suchcircularity arises on the facts of the present appeals.

115    Weturn now to the next (and closely-related) issue of whether or not thesecond limb of the “reasonable classification” test has been satisfiedon the facts of the present appeals, viz,is there a rational relation between the differentia embodied ins 377A and the purpose and object of that provision?

(2)    Is there a rationalrelation between the differentia embodied in s 377A and the purposeand object of the provision?

(A)    What is the purposeand object of s 377A?

116    Althoughthis particular question of the purpose and object of s 377A didnot appear to pose a problem in the court below and, indeed, beforethis court (at least for the initial part of the parties’ oral submissions),it does not – for the reasons set out below – admit of that clearan answer.

(I)    The English originsof s 377A

117    Section 377Ais based on s 11 of the Criminal Law Amendment Act 1885 (c 69) (UK)(“the 1885 UK Act”), which is more commonly known as “the LabouchereAmendment” (as it was introduced by Mr Henry Labouchere). This courthas, in Tan Eng Hong (standing),dealt with the historical backdrop to both the UK and the localpositions in some detail. Suffice it to state that the precise originsof s 11 of the 1885 UK Act (“the UK s 11”) are none too clear –a point also acknowledged by the Judge in the court below (see Lim Meng Suang at [64]). Put briefly,the UK s 11 was introduced at, literally, the eleventh hour, andhad nothing to do with the main thrust of the 1885 UK Act itself.It is therefore not surprising that there was no debate in the UKParliament on this particular provision before enacting it. Thismerely adds to the mystery surrounding its origins and, more importantly,its purpose and object.

(II)    The introductionof s 377A into the Straits Settlements in 1938

118    What,then, of s 377A? Although it was (as already mentioned) based onthe UK s 11, it was introduced into our Penal Code only in 1938– some 53 years after the inception of itsoriginal counterpart in the UK. The UK s 11 was introducedinto the Straits Settlements in the form of s 377A of the PenalCode (Cap 20, 1936 Rev Ed) (“the 1936 Penal Code”) via s 3 of the PenalCode (Amendment) Ordinance 1938 (No 12 of 1938) (“the 1938 PenalCode Amendment Ordinance”). Whilst an immediate response might,notwithstanding the substantial lapse of time just referred to,be to assume that the purpose and object of s 377A was the sameas that of the UK s 11, an equally immediate problem is that thepurpose and object of the latter provision was unclearto begin with. In this last-mentioned regard, it appearsthat it has merely been assumed thatthe purpose and object of the UK s 11 was coterminouswith the general language contained therein. This isnot the most enlightened of approaches in so far as ascertainingthe purpose and object of a statutory provision is concerned, butit might, in the circumstances, have been the only viable way forward.That having been said, it does not logicallyfollow that the purpose and object of s 377A would necessarily bethe same as that of the UK s 11 – especially when we take into accountthe fact (already mentioned) that s 377A was enacted some 53 years afterthe latter provision. Unfortunately, what objective evidence we have on the purposeand object of s 377A is itself unclear.Let us elaborate.

(III)    The Attorney-General’sspeech before the Straits Settlements Legislative Council

119    Thestarting point is the following brief paragraph by the then Attorney-General,Mr C G Howell (“Mr Howell”), in his speech when introducing thePenal Code (Amendment) Bill 1938 (“the 1938 Penal Code AmendmentBill”) in the Straits Settlements Legislative Council (that Bill waslater enacted as the 1938 Penal Code Amendment Ordinance). Mr Howellstated as follows (see Proceedings of the LegislativeCouncil of the Straits Settlements (“Proceedings”)(13 June 1938) at p B49):

With regard to clause 4 [later enactedas s 3 of the 1938 Penal Code Amendment Ordinance, which introduceds 377A into our Penal Code] it is unfortunatelythe case that acts of the naturedescribed have been brought to notice. As the law now stands, suchacts can only be dealt with, ifat all, under the Minor OffencesOrdinance, and then only if committed inpublic. Punishment under the Ordinance is inadequate and the chancesof detection are small. It is desired,therefore, to strengthen the law and to bringit into line with the English Criminal Law, from which this clause is taken, and the law of variousother parts of the Colonial Empire of which it is onlynecessary to mention Hong Kong and Gibraltar where conditions are somewhat similarto our own. [emphasis added in italics, bold italicsand underlined bold italics]

120    WhilstMr Howell’s statement (as quoted in the preceding paragraph) isbrief, it is (as we shall see) extremely cryptic. It is, in fact,pregnant with meaning, and (as we shall elaborate upon below) thedifficulty lies in ascertaining the precise meaning which Mr Howellintended. Before proceeding to do so, it is appropriate to set outother historical documentation which might be of relevance to thepresent inquiry into the purpose and object of s 377A.

(IV)    The Objects andReasons accompanying the 1938 Penal Code Amendment Bill

121    Weturn, first, to the “Objects and Reasons” which accompanied the 1938Penal Code Amendment Bill (“the Objects andReasons”). The material part of the Objectsand Reasons reads as follows (see Proceedings (25 April1938) at p C81):

Clause 4 introduces a new section based on section 11 of the Criminal Law AmendmentAct 1885 (48 and 49 Vict. c. 69). Thesection makes punishable acts of gross indecency between male persons which donot amount to an unnatural offence within the meaning of section 377 of the [1936 Penal] Code.[emphasis added in italics, bold italics and underlined bold italics]

(V)    Important questionsraised

122    Atthis particular juncture, an extremely importantpoint should be noted: whilst Mr Howell referred to the need tosupplement the Minor Offences Ordinance 1906 (No 13 of 1906) (“the1906 Minor Offences Ordinance”) in his speechto the Straits Settlements Legislative Council (see aboveat [119]), the Objects and Reasons referred, instead, to the need to supplement s 377of the 1936 Penal Code. (For ease of discussion, we shall hereafteruse the term “s 377” to denote not only s 377 of the 1936 Penal Code,but also, where appropriate to the context, its successor provisionsup to the time s 377 of the 1985 Penal Code was repealed by theSingapore Parliament via the Penal Code (Amendment) Act 2007 (Act 51of 2007) (“the 2007 Penal Code Amendment Act”).) Why are there referencesto different statutes? More importantly,is there an inconsistency, or is the inconsistency more apparent than real? On a related note, both Mr Howell’s speech to the StraitsSettlements Legislative Council (referred to hereafter as “Mr Howell’sLegislative Council speech” where appropriate to the context) as well as the Objectsand Reasons referred to the fact that s 377A was basedon English law (ie, the UK s 11).What is the significance, if any, of this last-mentioned referenceto English law? Before attempting to answer these questions, weshall continue to set out the rest of the historical documentationthat might be relevant to the present inquiry.

(VI)    Other relevant historicaldocumentation

(a)Colonial Office correspondence

123    Thereis Colonial Office correspondence relating to the 1938 Penal CodeAmendment Ordinance, which was sent after theenactment of that Ordinance (the Ordinance was assented to by theGovernor and Commander-in-Chief on 2 July 1938 and came into effecton 8 July 1938). The first piece of correspondence (from the UKPublic Record Office, Colonial Office Series 273) is a cover letterdated 13 July 1938 from the Deputy of the Governor of the StraitsSettlements, the material part of which reads as follows:

Sir,

I have the honour to forward herewith OrdinanceNo.12 of 1938, entitled “An Ordinance to amend the Penal Code (Chapter 20of the Revised Edition)”, together with the Attorney-General’s certificate and report on the Ordinance.

[emphasis added in italics and bold italics]

124    Whatis interesting in the aforesaid cover letter is the reference tothe enclosed “report” [emphasisadded], which was entitled “Report on an Ordinance to amend thePenal Code (Chapter 20 of the Revised Edition). (No. 12 of 1938)”and dated 21 June 1938 (“the June 1938 Report”). The relevant partof that report (relating to the introduction of s 377A) reads as follows:

Section 3 [of the 1938 Penal Code AmendmentOrdinance] introduces a new section based onsection 11 of the Criminal Law Amendment Act 1885 (48 and 49 Vict.c. 69). The section makes punishable acts of gross indecency between male persons which donot amount to an unnatural offence within the meaning of section 377 of the [1936 Penal] Code.[emphasis added in italics, bold italics and underlined bold italics]

It will be noticed that the extract just quoted is virtually identical to the relevant partof the Objects and Reasons set outabove (at [121]), and is, correspondingly, differentfrom Mr Howell’s Legislative Council speech (which refers,instead, to the need to supplement the 1906Minor Offences Ordinance).

(b)Annual Reports on the Organisationand Administration of the Straits Settlements Police and on theState of Crime

125    Ofpossible relevance, too, are some extracts from the AnnualReport on the Organisation and Administration of the Straits SettlementsPolice and on the State of Crime (“the AnnualReport”) for the years 1936 to 1938. In particular, referencemay be made to the Annual Report forthe year 1936 at para 40, where it is stated as follows:

Prostitutes are no longer to be found solicitingin numbers on street parades; they find it more profitable to goto amusement parks, cafes, dancing places and, generally speaking,no exception can be taken to their behaviour. Singapore,a port and a town combined, is not free from the very low type of prostitute.The lewd activities of these have been sternly suppressed. Male prostitution was also kept in check, asand when encountered. [emphasis added in italics andbold italics]

126    Referencemay also be made to the Annual Report forthe year 1937 at para 36 as well as paras 38–39, where it is statedthus:

PublicMorals

36.    The Police took action to suppressthe old type of brothel (a keeper and several women) and have preventedas far as it has been possible the establishment of the new type–twoor more women living on or available at premises rented for thepurpose of prostitution.

Soliciting in public was kept in check,a difficult and unpleasant type of work and one requiring ceaselesssupervision. …

38.    Thefact that the Police are not the deciding authorities in mattersof public morals is often overlooked.The duty of the Police is to suppress offences. Offences against public decency are definedin the laws of the land. The presence of prostitutes onthe streets is no offence. An offence is committedonly if a woman persistentlysolicits to the annoyance of amember of the public. The public have not yet come forward to give evidencethat she does so. It would seem that in Singapore theconcourse of East and West is alone responsible for such publicityas has been given to a state of affairs similar to that in Europe,where it passes almost unnoticed.

39.    Widespread existence of male prostitution wasdiscovered and reported to the Government whose orders have beencarried out.

A certain amount ofcriticism based probably upon too little knowledge of the actualfacts, has been expressed against a policy the object of which isto stamp out this evil. Sodomyis a penal offence; its danger to adolescents is obvious; obvioustoo, is the danger of blackmail, thedemoralising effect on disciplined forces and on a mixed communitywhich looks to the Government for wholesome governing.

[emphasis added in italics, bold italicsand underlined bold italics]

127    Finally,reference may be made to the Annual Report forthe year 1938 at paras 45–48, which read as follows:

PublicMorals

45.    The duty of the Police in safeguarding public morals is limitedto enforcing the law. The slightest deviation from such a policy,in this matter more than in any other, would lead to the risk ofvery serious persecution or connivance. The law of the Colony isbased on the law of the United Kingdom, and that human nature isnot subject to climatic variations is well proved by a visit to,for instance, Jermyn Street, the dock area of Southampton, or streetcorners at Woolwich or Sandhurst at the recognised hours. The onlydifference is to be found in the text of the law in thewords “persistently” solicits.The courts have to be satisfied on this point by evidence independentof the Police. This evidence has not been forthcoming in the cityof Singapore.

46.    Action againstthe local brothels2 women livingtogether–was continued, but rapid changes of addresses and finesof $1 make matters difficult.

47.    Action was taken against pimps andtraffickers whenever evidence was forthcoming.

48.    Male prostitution and other formsof beastliness were stamped outas and when opportunity occurred.

[emphasis added in italics and bold italics]

(VII)    Analysis of anddecision on the purpose and object of s 377A

128    Letus now return to the important questions posed above (at [122]) asthey impact directly and significantly on the crucial inquiry athand, viz, the purpose and objectof s 377A. This relates to the application of Limb (b) of the “reasonableclassification” test.

129    Itwill be recalled that one key difficulty lies in the fact that Mr Howell referredto the need to supplement the 1906 Minor Offences Ordinance in his speechto the Straits Settlements Legislative Council (see above at [119]), whereasboth the Objects and Reasons as well as the June1938 Report referredto the need to supplement s 377 (seeabove at [121] and [124], respectively).

130    Inso far as the 1906 Minor Offences Ordinance wasconcerned, the relevant provision was s 23 thereof(“s 23”), which read as follows:

Any person who is found drunk and incapableof taking care of himself, or is guiltyof any riotous, disorderly or indecent behaviour, or of persistently solicitingor importuning for immoral purposes in any public road or in any public placeor place of public amusement orresort, or in the immediate vicinity of any Court or of any publicoffice or police station or place of worship, shallbe liable to a fine not exceeding twenty dollars, orto imprisonment for a term which may extend to fourteen days, andon a second or subsequent conviction to a fine not exceeding fiftydollars or to imprisonment for a term which may extend to threemonths. [emphasis added in italics, bold italics and underlinedbold italics]

131    Counselfor all the Appellants relied heavily on the fact that Mr Howellreferred to the 1906 Minor Offences Ordinance to argue that s 377Awas enacted in order to combat the problem of maleprostitution. On their argument, applying s 377A to categories outside the narrow category just mentioned(viz, male prostitution) would be over-inclusive and, hence, unconstitutional.In particular, Ms Barker pointed to the words “persistently solicitingor importuning for immoral purposes” in s 23 as evincing an intentionon the part of the Straits Settlements Legislative Council thats 377A (dealing as it did with male-to-male conduct) should coverthe social as well as public ill of male prostitution.Whilst we see some force in this particular argument, there areat least two difficulties with it. Let us elaborate.

132    The first difficulty relates to the fact thats 23 contains not only the phrase “persistently soliciting or importuningfor immoral purposes”, but also the(more general) phrase “guilty ofany … indecent behaviour” [emphasisadded]. That these two phrases set out twoseparate and distinct limbs of the offence under s 23is clear, and is confirmed by the fact that these two limbs presentlyexist as two separate and distinct sections (viz, s 19 and s 20, respectively) of theMiscellaneous Offences (Public Order and Nuisance) Act (Cap 184,1997 Rev Ed), the current equivalent of the 1906 Minor OffencesOrdinance. This first difficulty in fact leads us to the second difficulty,to which it is (as we shall see in a moment) closely related. This seconddifficulty lies in the fact that both the Objects and Reasons aswell as the June 1938 Report did not referto the need to supplement the 1906 Minor Offences Ordinance at all,but referred instead to the need to supplement s 377. Section 377as it stood in 1938 read as follows:

Unnaturaloffences

377.  Whoevervoluntarily has carnal intercourse against the order of nature withany man, woman or animal, shall be punished with penal servitudefor life, or with imprisonment of either description for a termwhich may extend to ten years, and shall also be liable to fineor to whipping.

Explanation.—Penetrationis sufficient to constitute the carnal intercourse necessary tothe offence described in this section.

133    This(apparently) alternative purposeand object of s 377A (ie, to supplement s 377) is significant because it is consistent with the other (and moregeneral) limb of s 23 (which, it will be recalled, relates to the proscriptionof, inter alia, “indecent behaviour”).Indeed, this particular limb ofs 23 was broader than s 377 inasmuch as it covered “indecent behaviour” thatincluded but was not confined to anal and/or oral sex (hereafter referredto as “penetrative sex”); however, it was confined to public conduct. Hence, s 377A, which would also cover “grossly indecent” acts between malesin private, would apply to situationswhich were outside the purview of s 23.It is also important to note that s 377A would simultaneously supplements 377 inasmuch as s 377A would (like s 23) cover even “grossly indecent”acts which fell short of penetrative sex. It should bepointed out, at this juncture, that it follows that s 377A would necessarily cover acts of penetrative sex as well.Any other interpretation would be illogical since it cannot be deniedthat acts of penetrative sex constitute themost serious instances of the possible acts of “gross indecency”.

134    Asjust mentioned, s 377A broadened the scope hithertocovered by s 377 to cover not only penetrative sex but also other (less serious) acts of “gross indecency” committed between males. However, we would expect that priorto our Parliament’s repeal of s 377 via the 2007 Penal Code AmendmentAct, where acts of penetrative sex were involved, the accused wouldprobably have been charged under s 377 as that section imposed a heavierpenalty (compared to s 377A), although the Prosecution would also havehad the option of charging the accused under s 377A instead. Thisis not surprising because, as we have just observed, acts of penetrativesex are the most serious instancesof the possible acts of “gross indecency”. Now that s 377 has beenrepealed, there is no reason in principle why a charge under s 377Acannot be brought in a situation involving acts of penetrative sexbetween two males (which, as we have already noted, would, ex hypothesi, fall within the definitionof “any act of gross indecency” within the meaning of s 377A). Wenote, however, that the current policy (as declared during the October2007 parliamentary debates mentioned at [111] above) is for theProsecution to generally not chargeaccused persons under s 377A, so the point just referred to is –in the practical context at least – merely academic. It is, nevertheless,an important point to make in the context of thepresent appeals, particularly in the light of the further writtensubmissions which Ms Barker tendered on behalf of her clients (and whichare dealt with below at [144]).

135    Returningto the comparison between s 377A and s 23, s 377A was, as we mentionedabove at [133], broader in scope than s 23 inasmuch as s 377A covered “grosslyindecent” acts between males in private aswell. Such an analysis would explain why Mr Howell referredto the need to supplement the 1906 Minor OffencesOrdinance in his speech to the Straits Settlements LegislativeCouncil (see above at [119]), and is in fact supported by the referenceby Mr Howell himself (in the same speech)to the need to capture acts which were committed in private aswell (which acts, he pointed out, were not captured by the 1906Minor Offences Ordinance as s 23 only covered actscommitted in public). It would also explain why Mr Howell further referred(as, indeed, did the Objects and Reasons aswell as the June 1938 Report) to the fact that s 377A was basedon English law – specifically, on the UK s 11,which (despite the lack of clarity as to its precise origins) has alwaysbeen perceived as a provision having general application.

136    Wethink that the analysis just set out is the most persuasive becauseit resolves what appears to be an inconsistency (or even a contradiction) betweenMr Howell’s Legislative Council speech (see above at [119]) on the onehand and the Objects and Reasons aswell as the June 1938 Report (see above at [121] and [124], respectively)on the other. But, if that be the case (ie,if s 377A was indeed meant to supplement s 377), it would then follow that s 377Aitself ought to be given the same general application ass 377, and – contrary to the Appellants’argument – should not be confinedonly to male prostitution.

137    That s 377 was intended to be of general application is clear from the languageas well as the historical context of that provision. The language itselfis self-explanatory. In so far as the historical context of s 377 is concerned, it consisted (originally)of two provisions which were worded quite differently. They wereclauses 361 and 362 of the original draft Indian Penal Code submittedby the then Indian Law Commission (headed by Lord Macaulay) to thethen Governor-General of India in Council, Lord Auckland, in 1837.These clauses read as follows:

OF UNNATURALOFFENCES

361.  Whoever, intending to gratify unnaturallust, touches, for that purpose, any person, or any animal, or isby his own consent touched by any person, for the purpose of gratifyingunnatural lust, shall be punished with imprisonment of either descriptionfor a term which may extend to fourteen years and must not be lessthan two years, and shall also be liable to fine.

362.  Whoever, intending to gratify unnaturallust, touches for that purpose any person without that person’sfree and intelligent consent, shall be punished with imprisonmentof either description for a term which may extend to life and mustnot be less than seven years, and shall also be liable to fine.

138    Thatthe clauses just quoted in the preceding paragraph (as well as the “successor”provision embodied in s 377) were intended not only to be of general application, but also(and more importantly) to enforce societal morality is clearly evidencedin no uncertain terms by the following observations of the thenIndian Law Commission (see A PenalCode prepared by the Indian Law Commissioners, and published bycommand of the Governor General of India in Council (PelhamRichardson, 1838; reprinted from the Calcutta Edition and reprinted(in turn) by The Lawbook Exchange, Ltd, 2002) at p 117 (also reprintedas Introductory Report upon the Indian PenalCode in The Works of Lord Macaulay:Speeches – Poems & Miscellaneous vol XI, pp 3–198at p 144)):

Clauses 361 and 362 relate to an odious class of’ offences respecting which it is desirable that as little aspossible should be said. We leave, without com­ment, tothe judgment of his Lordship in Council the two clauses which wehave provided for these offences. We are unwilling to insert, eitherin the text or in the notes, any thing which could give rise topublic discussion on this revolting subject; as we are de­cidedly of opinion that the injury whichwould be done to the moralsof the community by such dis­cussionwould far more than compensate for any benefits which might be derivedfrom legislative measures framed with the greatest precision.[emphasis added in italics, bold italics and underlined bold italics]

139    In contrast, if the Appellants’ analysisof the purpose and object of s 377A (ie,that the provision was only intendedto deal with male prostitution)were adopted, there would necessarily be an inconsistency (or evena contradiction) between the purpose and object alleged by the Appellantsand the purpose (mentioned in the preceding paragraph) of guardingagainst “injury … to the morals of the community”.

140    Indeed,after s 377A was introduced into the Straits Settlements via s 3 ofthe 1938 Penal Code Amendment Ordinance, both s 377 and s 377A were listed under the broad and general heading “Unnatural Offences” (see also,to this effect, the relevant heading and provisions in the PenalCode (Cap 119, 1955 Rev Ed)). This clearly militates against the veryspecific purpose and object canvassed by the Appellants vis-à-vis s 377A.

141    Itshould also be noted that the relevant historical documents (see aboveat [121] and [124]) refer to “acts of gross indecency between male persons”[emphasis added] in a general sense,which again militates against the narrow approach advocated by theAppellants.

142    What,then, about the references to male prostitution inthe various volumes of the Annual Report citedabove (at [125]–[127])? If one looks at the plain language of s 377A(reproduced above at [3] and [56]), it is clear that the provisionwould not only capture “grossly indecent” acts between males ina general sense, but would also necessarily capture (in an a fortiori manner) the (relatively) more specific acts relating to male prostitution, includingprocurement as well as abetment by third-party pimps. It should alsobe noted that both the Annual Report forthe year 1937 and the Annual Report forthe year 1938 (at paras 38 and 45, respectively) referred to the problemof “persistently soliciting or importuning for immoral purposes” inthe context of female – as opposedto male – prostitution. More importantly, perhaps, the Annual Report for the year 1937 and the Annual Report forthe year 1938 both referred (at paras 38 and 45, respectively) to theneed for the Police to safeguard “public morals”[emphasis added] in a general sense(as opposed to in the context of male prostitution specifically). Indeed,the phrase “public morals” constitutes the heading ofthe relevant part of the respective AnnualReports mentioned above. This is, of course, wholly consistentwith the Respondent’s arguments on the purpose and object of s 377Ain the present appeals.

143    Forthe reasons set out above, we are of the view that the available objectiveevidence demonstrates that s 377A was intended to be of general application, and was not intendedto be merely confined only (or even mainly) to the specific problemof male prostitution (notwithstanding the fact that this would becovered as well).

144    Asmentioned above at [134], Ms Barker (with the leave of this court) tenderedfurther written submissions on behalf of her clients after the oral hearingbefore us had concluded. In essence, she argued, first, that the phrase“gross indecency” in s 377A did not cover penetrative sex and conduct which amountedto an “unnatural offence” under s 377. She argued that s 377A wasintended, instead, to cover other actsof “gross indecency” apart from actsof penetrative sex, and that thiswas the meaning to be attributed to Mr Howell’s Legislative Councilspeech (reproduced above at [119]) with regard to the ambit of s 377A.Ms Barker then proceeded to argue, secondly, that the original purposeof s 377A was to suppress male prostitution. Tosupport this particular argument, she cited not only the historicalmaterials already referred to earlier in this judgment, but alsofurther materials relating to the suppression of prostitution and brothelsin the Straits Settlements. In addition, she referred to materials demonstratingthat in the English context, theprosecution of the famous author, Oscar Wilde, under the UK s 11had been pursuant to his sexual activity with persons who were,in effect at least, male prostitutes. In this connection, we notethat Mr Ravi similarly tendered further written submissions whichadopted Ms Barker’s arguments as stated above. Mr Ravi also advancedarguments based on executive estoppel and doubtful penalisationwhich were largely premised on Ms Barker’s arguments.

145    Withrespect, we are unable to accept either Ms Barker’s or Mr Ravi’s arguments.Let us elaborate.

146    Inso far as Ms Barker’s first argument is concerned, we have already explainedabove (at [133]) why the phrase “gross indecency” in s 377A must necessarilycover penetrative sex as well. Indeed, it must surely be the case that male prostitution might – and, in mostcases, probably would – involve penetrative sex(although, conceivably, other actsof “gross indecency” could also be involved). On this logical andcommonsensical ground alone, the first argument by Ms Barker at[144] above does not, with respect, ring true.

147    Inso far as Ms Barker’s second argument at [144] above is concerned, theadditional historical materials proffered to this court (which included theobservations by Ms Nicoll-Jones in “Report on the Investigationof the Problem of Prostitution in Singapore” covering the periodfrom May 1940 to May 1941) are, at best, neutral. They referredto the suppression of prostitution and brothels generally.Moreover, their focus (as also alluded to above at [142]) was on female (as opposed to male) prostitution.We further note the Respondent’s argument in its supplemental writtencase that, in any event, the references to Ms Nicoll-Jones’ observationsare irrelevant in so far as those observations were made after the enactment of s 377A.

148    Inso far as Ms Barker’s reference to the trial of Oscar Wilde is concerned,the argument is, again, neutral, at best. As the Respondent pointedout in its supplemental written case, Wilde was also charged under theUK s 11 for engaging in sexual activity with men who were not male prostitutes, and he was acquittedin those instances not because themen concerned were not male prostitutes, but rather, because theProsecution did not succeed in proving the ingredients of the offence.In any event, it does not necessarily follow fromthe fact that Wilde might have been convicted under the UK s 11for sexual activity with persons who were, in effect at least, maleprostitutes that this particular provision was not intendedto cover more general situations as well.Indeed, the position is precisely the converse: put simply, if theUK s 11 covered all situations relatingto “acts of gross indecency” between males, itwould follow that similar situations involving male prostituteswould also be covered on an a fortiori basis.In this regard, there is nothing in the legislative background surroundingthe UK s 11 which suggests otherwise. Further (and more importantly),the legislative background surrounding s 377A, which has alreadybeen set out in detail above, militates against the interpretation profferedby Ms Barker on behalf of her clients. For the same reasons, Mr Ravi’sarguments fall away as they were premised on the very same argumentsthat Ms Barker advanced.

149    Wealso note that if the purpose and object of s 377A had been so specificas to only or mainly target the problem of male prostitution, it wouldhave been open to Mr Howell to have been much clearer (and, more importantly,more specific). He spoke, instead, in far more general termsin his speech to the Straits Settlements Legislative Council (seeabove at [119]). We also note that given the specificity ofthe purpose and object argued for by the Appellants, it might havebeen more direct and more relevant for the Straits Settlements LegislativeCouncil to have simply amended the 1906 Minor Offences Ordinanceinstead (which, of course, was not the measure taken by the StraitsSettlements Legislative Council in 1938).

(VIII)    A comparativeperspective?

150    Inhis speech to the Straits Settlements Legislative Council, Mr Howell referred, inter alia, to the respective situationsin Gibraltar and Hong Kong. Unfortunately, what evidence was availablebefore this court as to the situation in those two jurisdictionsat that point in time was not particularly helpful. Indeed, thereappears to be no real historical evidence with regard to the situationin Gibraltar at the material time (although we note that Gibraltar’sequivalent of s 377A was abolished legislatively in1993).

151    Inso far as the situation in Hong Kong was concerned, Hong Kong’s equivalentof s 377A was enacted as s 2 of the Hong Kong Criminal Law AmendmentOrdinance 1901 (No 3 of 1901). That was done some 37 years priorto the introduction of s 377A into the Straits Settlements. In the “Objects and Reasons” accompanying theCriminal Law Amendment Bill 1901 (HK), the then Attorney-General,Mr W Meigh Goodman, stated as follows (see the HongkongGovernment Gazette (1 February 1901) at p 170):

Section 2 of this Ordinance extends tothis Colony the provisions of section eleven of the English CriminalLaw Amendment Act, 1885. When the various sections of Part I ofthat Act which is headed “Protection of Women and Girls” were consideredwith a view to their being embodied in our local legislation relatingto that subject, section eleven which is out of place in Part Iof the English Act was omitted.

152    Unfortunately,the statement quoted in the preceding paragraph does not aid usin ascertaining what precisely was the purpose and object of HongKong’s equivalent of s 377A. Indeed, the above statement is somewhatambiguous and (at best) merely repeats what the (literal) situationin Hong Kong was at the time the 1885 UK Act was promulgated. Weshould also observe that Hong Kong (like Gibraltar) abolished its equivalentof s 377A legislatively in 1991.

(B)    Is the “rationalrelation” requirement satisfied?

153    Forthe purposes of the second limb (ie,Limb (b)) of the “reasonable classification” test, we agree withthe Judge that there is a rational relation between the differentiaembodied in s 377A and the purpose and object of the provision asset out above. Indeed, given our findings with respect to the twolimbs of the “reasonable classification” test, we hold (as did theJudge) that there is, in fact, a complete coincidence inthe relation between that differentia and that purpose and object.

The issue of illegitimacy

154    Asalready stated earlier in this judgment, there is noseparate or independent test of illegitimacy (vis-à-vis the object of the impugned statute) forthe purposes of ascertaining the constitutionality of that statuteunder Art 12. There is therefore no need for us to consider theissue of illegitimacy in relation to the facts and circumstancesof the present appeals, given our finding (applying the “reasonableclassification” test to s 377A) that there is no illogicality orincoherence in the differentia embodied in that provision. It isimportant to reiterate that the courts cannot become “mini-legislatures”.That would be an illegitimate use of their powers. Indeed, the presentappeals illustrate precisely the dangers of adopting such an approach.To elaborate, we have already referred above (at [111]) to the intensecontroversy surrounding the debate on s 377A in the extra-legal spherein general and during the October 2007 parliamentary debates mentionedin that same paragraph in particular. This controversy has been markedon both sides of a very stark (and often emotional) divide by agreat number of extra-legal argumentswhich are clearly and wholly outside the remit of the courts, andwhich fall instead within the purview of the legislature.

The status and role of extra-legalarguments

155    Weturn now to consider the status and role of the aforementioned extra-legal arguments, a number of whichwere made by the parties in both their written as well as theiroral submissions before this court. In our view, these argumentsare (as already mentioned) clearly neither relevant nor material in so far as the applicationof the “reasonable classification” test is concerned. Neither arethey relevant in so far as the application of Art 12(2) isconcerned. What, then, would bethe relevance (if any) of these arguments? In order to answer thismore general question, it would be useful, in our view, to considerthe specific extra-legal arguments which were made in the contextof the present appeals. We should, however, emphasise that in doingso, we are not in any way takingthese extra-legal arguments into account for the purposes of ourdecision on the legal issues set out above at [41] vis-à-vis theconstitutionality of s 377A.

156    Inour view, whilst many of the Appellants’ extra-legal arguments are valid(or, at least, plausible) ones, they are not arguments that maybe appropriately considered by the court and are thus legally irrelevant. Put simply, the courtis not the appropriate forum inwhich to canvass such arguments; the appropriate forum in this regardis, instead, the legislature. Weshall demonstrate this with reference to each of the extra-legal argumentsproffered to this court.

(1)    The “tyranny of themajority”

157    Oneof the extra-legal arguments canvassed by the Appellants was thats 377A represented the “tyranny of the majorityvis-à-vis persons who were in the Appellants’shoes (and who were in the minority).The right to equality under Art 12(1) constituted, so the argumentwent, the Appellants’ legal bulwark against the aforementioned “tyrannyof the majority”.

158    Inour view, this particular argument, whilst attractive at first blush, consistsmore of rhetoric than of substance. Let us elaborate.

159    First,the argument raises a centuries-old philosophical conundrum to which,to the best of our knowledge, there has (despite the vast amountsof ink that have been spilt on this particular subject) hithertobeen no satisfactory solution. Put simply, ought majoritarian rightsalways to trump minority rights? If not, when should the lattertrump the former? In our view, invoking the phrase “tyranny of themajority”, without more, does not addressthese questions in a practical (nor, for that matter, in a theoretical) manner.Indeed, the majority could turn the argument just mentioned on itshead and contend that likewise, they ought not to be subject tothe “tyranny of the minority”.

160    Secondly,and turning to a more practical point, what the minority (in thiscase, the Appellants) have to demonstrate to make out their argument isthat there is a legal basis forclaiming that their rights should trump those of the majority. However, this brings us back full circle to the interpretation aswell as the application of Art 12(1) and Art 12(2) which we havealready undertaken above. Any other (and broader) argumentwould not be one that the court can legitimately address. If atall, such other arguments should be addressed by thelegislature instead.

161    Weshould, however, observe, in fairness to the Appellants, that perhaps,their reliance on the argument that there should be no “tyrannyof the majority” could also be groundedin the (related) argument that it would be wrong for the majority to enforce (through s 377A) societal morality to the detriment ofthe individual rights of the minority. This last-mentioned argumentwill be dealt with below at [162]–[174] in the course of consideringthe Appellants’ argument based on the absence of harm, to whichwe now turn our attention.

(2)    The argument basedon the absence of harm (and societal morality revisited)

162    TheAppellants’ argument based on the absence of harm was that theirsexual conduct caused no harm to others. This particular argument was,of course, part of the broader jurisprudential debate on the enforcementof morals between Lord Devlin on the one hand (see generally PatrickDevlin, The Enforcement of Morals (OxfordUniversity Press, 1963) (“The Enforcement ofMorals”)) and Prof H L A Hart on the other (see H L A Hart, Law, Liberty and Morality (Oxford UniversityPress, 1963) as well as, by the same author, TheMorality of the Criminal Law: Two Lectures (Magnes Press,Hebrew University, 1964) (the two lectures mentioned in the titleof this particular work were the Harry Camp Lectures delivered at StanfordUniversity and the Lionel Cohen Lectures delivered at the Hebrew Universityof Jerusalem, respectively)).

163    Theaforesaid debate stemmed from Lord Devlin’s famous Maccabaean Lecturein Jurisprudence entitled “The Enforcement of Morals” (1959) 45 Proceedingsof the British Academy 129, which was delivered on 18 March 1959at the British Academy and which was reprinted in the book withthe same title (mentioned above) (the lecture constituted the firstchapter of that work, albeit with the new title “Morals and theCriminal Law”). What is interesting in the context of the present appealsis that this particular lecture by Lord Devlin was prompted by the viewsexpressed in the Report of the DepartmentalCommittee on Homosexual Offences and Prostitution (HMSO,Cmnd 247, 1957), more popularly known as “The Wolfenden Report”(after the chairman of that committee, Sir John Wolfenden) and hereafterreferred to as “The Wolfenden Report”.Paragraph 61 of The Wolfenden Report statesas follows:

… We have outlined the arguments againsta change in the law, and we recognise their weight. We believe,however, that they have been met by the counter-arguments we havealready advanced. There remains one additional counter-argumentwhich we believe to be decisive, namely, the importance which societyand the law ought to give to individual freedom of choice and actionin matters of private morality. Unless a deliberateattempt is to be made by society, acting through the agency of thelaw, to equate the sphere of crime with that of sin, there mustremain a realm of private morality and immorality which is, in briefand crude terms, not the law’s business. To say thisis not to condone or encourage private immorality. On the contrary,to emphasise the personal and private nature of moral or immoralconduct is to emphasise the personal and private responsibilityof the individual for his own actions, and that is a responsibilitywhich a mature agent can properly be expected to carry for himselfwithout the threat of punishment from the law. [emphasis added]

164    Brieflystated, Lord Devlin was of the view – contrary to that expressedin The Wolfenden Report – that the law could regulateas well as sanction private actsin order to preserve the moral fabric of society. In setting outhis views, Lord Devlin proceeded, inter alia,on the premise that there was a societal moralitythat could constitute the basis upon which private conduct couldbe regulated and sanctioned by means of the law. This is, in fact,akin to the approach adopted by the Respondent in the present appeals.

165    Prof Hart,on the other hand, disagreed with this view. Indeed, although Prof Hart’sbest known works are those cited above (at [162]), he in fact pointedto an earlier article (viz, H L A Hart,“Immorality and Treason” The Listener (30 July1959) at pp 162–163) as being not only “one of [his] better [articles]”,but also the piece that catalysed the entire debate; in Prof Hart’sown words, the article “attacked Devlin. He was horrified. [So]he [published] a whole book [viz, The Enforcement of Morals] in reply toit” (see “Hart Interviewed: H.L.A. Hart in Conversation with David Sugarman”(2005) 32 Journal of Law and Society 267 at p 284). Put simply, Prof Hartagreed with the views expressed in The WolfendenReport. In doing so, he was, in contrast to Lord Devlin,proceeding, inter alia, on the premisethat the individual liberty of each personwas inviolate, such that societalmorality could not be utilised asa justification for regulating and sanctioning private conduct –except to the (limited) extent (as we shall elaborate upon brieflybelow) that harm would otherwise result to others. This is, in fact,akin to the approach adopted by the Appellants in the present appeals.

166    Ideasand arguments do not exist in an intellectual vacuum. Not surprisingly,therefore, both Lord Devlin and Prof Hart relied upon works of priorauthors in support of their respective views. Lord Devlin’s viewsare consistent with those of the famous Victorian jurist and judge,James Fitzjames Stephen (see James Fitzjames Stephen QC, Liberty, Equality, Fraternity (Smith Elder,& Co, 2nd Ed, 1874; reprinted, The University of Chicago Press,1991) (“Stephen”); see also thepreface to The Enforcement of Morals atp vii), whilst Prof Hart’s views are consistent with those of the famousBritish philosopher, civil servant and Member of Parliament, John StuartMill (see J S Mill, On Liberty (John W Parkerand Son, 1859; reprinted with Editing as well as an Introductionby Gertrude Himmelfarb in Pelican Books, 1974) (“Mill”)),whose views were (not surprisingly) the subject of vigorous challengein Stephen. So the debate betweenLord Devlin and Prof Hart was an important debate with weighty protagonistson both sides (including their predecessors).

167    Asalready alluded to above (at [164]), a close analysis of the approach adoptedby the Respondent in the presentappeals will demonstrate that it is essentially relying upon theapproach adopted by Lord Devlin.In particular, Mr Abdullah focused not a few times upon the argumentthat s 377A gave effect to public morality. Further, Mr Abdullahsubmitted that that public morality was one which was determinedby the legislature to exist, andsuch determination was uniquely within the purview of that institution.Any change (including, presumably,the repeal of s 377A) therefore lay withinthe province of the legislature – and the legislature alone.We pause to observe, parenthetically, that the use of the phrase“public morality” ought to be contrastedwith the use of the phrase “popular morality”as the latter might engender unnecessarilynegative psychological (as well as other) perceptions.To avoid any possible misunderstanding whatsoever, we shall henceforthutilise (and, in fact, have already utilised) the phrase “societal morality”instead.

168    TheAppellants, in contrast, are obviously relying on the views of both Prof Hartas well as J S Mill. In particular, Mill enunciated the famous “harmprinciple” as follows (see Mill atpp 68–69):

The object of this essay is to assert onevery simple principle, as entitled to govern absolutely the dealingsof society with the individual in the way of compulsion and control,whether the means used be physical force in the form of legal penaltiesor the moral coercion of public opinion. That principle is that the sole end for which mankind are warranted, individuallyor collectively, in interfering with the liberty of action of anyof their number is self-protection. That the only purpose for whichpower can be rightfully exercised over any member of a civilizedcommunity, against his will, is to prevent harm to others. Hisown good, either physical or moral, is not a sufficient warrant.He cannot rightfully be compelled to do or forbear because it willbe better for him to do so, because it will make him happier, because,in the opinions of others, to do so would be wise or even right.These are good reasons for remonstrating with him, or reasoningwith him, or persuading him, or entreating him, but not for compellinghim or visiting him with any evil in case he do otherwise. To justifythat, the conduct from which it is desired to deter him must becalculated to produce evil to someone else. The only part of theconduct of anyone for which he is amenable to society is that whichconcerns others. In the part which merely concerns himself, hisindependence is, of right, absolute. Over himself, over his own bodyand mind, the individual is sovereign. [emphasis added]

169    Turning,first, to the general debate between Lord Devlin and Prof Hart,the arguments on each side of the philosophical divide are, as mentionedabove at [166], weighty ones. What is more important is that giventhose circumstances and given the nature of the arguments themselves,there are no clear answers – not even at a theoretical level and, a fortiori, not at a practical one. Thisis not surprising. Interesting as these issues are as a matter ofjurisprudence and legal philosophy, they are issues that lie quintessentiallywithin the sphere of the legislature.The balancing of rights on a broad philosophical basis is not atask that the court can – or ought to – undertake. In particular,the Appellants’ reliance in these proceedings on the “harm principle”enunciated by Mill raises the very pertinent issue of what constitutes“harm” in the first place. It is not – as appears to be the implicitassumption of the Appellants – necessarily confined only to physical harm. But, if not, how far shouldthe ambit of “harm” extend? A moment’s reflection will reveal thatthe answers to this as well as other related questions lie quintessentiallywithin the sphere of the legislature. Thispoint – already made several times in the course of this judgment– cannot be emphasised too much. Hence, the Appellants’ argumentbased on the absence of harm, when examined more closely, revealsitself to be, in substance if not in form, one which ought (if atall) to be considered by the legislature.

170    As, if not more, importantly, a fundamental differencebetween the approach adopted by the Respondent on the one hand andthat adopted by the Appellants on the other lies (as explained above)in the fact that whilst the Respondent is of the view that it is(pace Lord Devlin) appropriate (and, indeed,legitimate) for the legislature to enforce societal morality through s 377A,the Appellants are of the (diametrically opposed) view that it is (pace Prof Hart)inappropriate for the legislature to do so, except to the extentthat harm has resulted (or might result) toothers. To recapitulate, it will be recalled (see aboveat [167]) that one of the premises underlying the Respondent’s approachis that it is appropriate and legitimate for the legislature toascertain what the prevailing societal moralityis, and to decide whether or not (in the context of these proceedings)s 377A ought to be repealed or retained in view of that societalmorality. As already noted above (at [29]–[30] and [33]–[34]), the Appellants are of the view that suchan approach simply discriminates against them and deprives them of their fundamental rights,and as a result, s 377A is unconstitutional.

171    Inour view, there is much force in the Respondent’s argument as just setout in the preceding paragraph. The legislature is an elected bodyand thus has the mandate from the electorate to promulgate lawswhich reflect as well as preserve societal morality. Whilst it might(as is the situation in the present proceedings) be difficult toascertain what the prevailing societal morality on a particularissue is at any given point in time, it is still thelegislature’s task to make this determination.

172    Aswe understand the Appellants’ arguments, even if the prevailing societalmorality can be ascertained, giving effect to it through the law(in this case, s 377A) would be a violation of theminority’s constitutional rights as it would constitutethe “tyranny of the majority”. However, as we have already noted above(at [159]), this argument is a double-edgedone, for it can equally beargued by the majority that there should be no “tyranny of the minority”. We hasten to add that thisis not to endorse the approach that the majority must always prevail. Rather, this bringsus back to the protections embodied in the Articles on fundamentalrights in the Singapore Constitution – of which Art 9 and Art 12are the focus of the present appeals. The Appellantsmust therefore seek to bring their respective cases within the ambitof these two Articles.

173    Putsimply, Art 9 and Art 12 would constitute a legal basison which the Appellants can seek to vindicate their rights. TheAppellants cannot ask the courtto vindicate their rights based simply – and withoutmore – on the argument that theyfeel that the prevailing societal morality is wrong as it deprivesthem of their freedom. This is not tostate that such an argument cannot be made. But, a moment’s reflectionwill reveal that in order to succeed in this argument, the Appellantswill necessarily need to bring to bear a great number of extra-legal arguments, which, as we havealready emphasised, are uniquely withinthe purview of the legislature.These extra-legal arguments include empiricaldata in the form of, inter alia,surveys (some of which were referred to by both the Appellantsand the Respondent in the course of the present appeals) which this court is not equipped to assess.At this particular juncture, the vitally important distinction between thejudicial function on the one hand and the legislative function onthe other must be emphasised yet again. Put simply, the court cannot and must not attempt to (still less actually)operate as a “mini-legislature” – lest the vital roleof the court as an independent and neutral institution deciding objectively,on the basis of objective legal rules and principles, the rights whichparties have in a particular situation (among other issues) be reduced tonaught.

174    Indeed(and consistent with the observations just made), it is also highlysignificant, in our view, to note that TheWolfenden Report, which (as we mentioned above at [163])was the effective catalyst of the jurisprudential debate betweenLord Devlin and Prof Hart, ultimately led (albeit only a decadelater) to legislative action onthe part of the UK Parliament (inthe form of the Sexual Offences Act 1967 (c 60) (UK), which, inter alia, abolished the UK equivalentof s 377A).

175    Letus now turn to yet another extra-legal argumentwhich the Appellants proffered to this court, viz,the argument based on immutability and/or the intractable difficultyof change on the part of male homosexuals.

(3)    The argument basedon immutability and/or the intractable difficulty of change

176    Putsimply, the Appellants’ argument based on immutability and/or theintractable difficulty of change on the part of male homosexualswas this: if the Appellants’ sexual orientation was biologicallydetermined, they ought not to be discriminated against via s 377A.In particular, Mr Ravi submitted that there was overwhelming evidencesupporting the proposition that a person’s sexual orientation wasbiologically determined. This is primarily a scientific and extra-legal argument which, again,is outside the purview of the court.We agree with the Judge (see Tan Eng Hong (substantive) at[63]) that the scientific evidence on this particular issue is –contrary to what Mr Ravi submitted – unclear inasmuch as there is no definitive evidence pointing clearlyto one side of the divide or the other. Inany event, as just mentioned, the court is not in a position to arrive at a conclusivedetermination on this issue. Again, this argument should – if atall – be addressed by the legislature instead.

(4)    The safeguardingof public health

177    Itshould be noted that the Respondent, in its case before this court(cf its case in the court below(see above at [21])), did not relyupon the safeguarding of public health. This was, in our view, thecorrect approach simply because, once again, the court is not in a position to arrive at a conclusivedetermination in this particular regard. That having been said, wehasten to add that this is by no means an inappropriate argument,but it should – if at all – be addressed by thelegislature instead as it raises what are clearly extra-legal (in this instance, medical as well asscientific) issues.

(5)    Summary of our discussionof the Appellants’ extra-legal arguments

178    Theunderlying thread of our discussion at [157]–[177] above is clear andmay be stated simply: all the arguments referred to in those paragraphs areextra-legal arguments that, whilst not necessarily unpersuasive,ought nevertheless to be raised in the appropriate forum, whichis the legislature. Correlatively, the court is not the appropriateforum to consider such arguments. As emphasised right at the outsetof this judgment, only relevant legal arguments can (and should) be consideredby the court. It is also important to emphasise that the Appellantsare not thereby deprived of the opportunityto proffer the extra-legal argumentsthey have raised, but they have to do so at a different forum, viz, before the legislature.At this juncture, it is appropriate to note the following perceptiveobservations by Lord Reid in the extra-judicial lecture referredto above at [78] (see The Judge As Law Maker atp 23):

Now let me come to the real difficultyabout judges making law. Everyone agrees that impartiality is the first essential in any judge. And that means not only that he must not appearto favour either party. It alsomeans that he must not take sides on political issues. When public opinion is sharply divided on anyquestion – whether or not the division is on party lines – no judgeought in my view to lean to one side or the other if that can possiblybe avoided. But sometimes we geta case where that is very difficult to avoid. Then I think we mustplay safe. We must decide the caseon the preponderance of existing authority. Parliament is the right place to settle issueswhich the ordinary man re­gards as controversial. Onmany questions he will say: “That is the lawyers’ job, let themget on with it.” But on others he will say: “I ought to have mysay in this. I am not going to accept dictation from the lawyers.”… [emphasis added in italics, bold italics and underlined bold italics]

179    Ona related note, Lord Bingham of Cornhill, quoting from Lord Reid’saforesaid lecture, classified the situation where “public opinion issharply divided on [a] question” as a situation “[w]here the question involvesan issue of current social policy on which there is no consensus withinthe community” (see Tom Bingham, “The Judge as Lawmaker: An EnglishPerspective” in The Business of Judging: SelectedEssays and Speeches (Oxford University Press, 2000) ch 2at p 31), and stated that judges should, consequently, refrain frommaking new law in such a situation. Lord Bingham also referred (atp 32 of the same work) to another situation where, in his view,judges ought to refrain from making new law, namely:

[W]here the issue arises in a field farremoved from ordinary judicial experience. This is really anotherway of saying that whereas the Judges may properlymould what is sometimes called lawyers’ law,they should be very slow to lay down far-reachingrules in fields outside their experience. They should be alert torecognize their own limitations. [emphasis added in italicsand bold italics]

180    Indeed,our legislature can, apart from actually abolishing s 377A, also effectsolutions which are clearly beyond the powers of the court. For example,Ms Barker strongly urged this court (as a possible alternative)to at least delete the words “or private” in s 377A, hence “readingdown” s 377A to that extent (see the paragraphs of Lim and Chee’sAppellants’ Case which we referred to above at [19]). However, consistentwith the analysis set out above, this proposed solution is clearlyoutside the powers of this court, although it is an approach whichcan be taken by our Parliament (if it is so persuaded).

Our ruling on the constitutionalityof s 377A under Art 12(1)

181    Forthe reasons set out above, we are of the view that s 377A satisfies bothlimbs of the “reasonable classification” test. It therefore passeslegal muster pursuant to Art 12(1).However, that is not the end of the matter. Consistent with theapplicable principles set out earlier in this judgment, and giventhat a challenge was also mounted to the constitutionality of s 377Aunder Art 12(2), it is now necessaryfor us to proceed to consider a further – and more specific – issue:although s 377A does not violate Art 12(1), does it neverthelessfall within the scope of Art 12(2),and if so, does it violate that provision?

Whether s 377A falls withinthe scope of Art 12(2), and if so, whether it violates that provision

182    Itis clear, in our view, that s 377A does not violateArt 12(2) for the simple reason that it does not evenfall within the scope of Art 12(2) to begin with. As we have alreadynoted (see above at [92]), the words “gender”, “sex” and “sexualorientation” are noticeably absent from Art 12(2). When viewed froma historical context, this is not surprising. In particular, para 33of the 1966 Report furnishes us with more than a hint as to whyArt 12(2) was drafted the way itwas.

183    Paragraph 33of the 1966 Report reads as follows:

We consider, having regard to the multi-racial,multi-cultural,multi-lingual and multi-religious composition of the population of Singapore and ofits citizens, that the recommendationswe have outlined in the preceding paragraph will not only form animpregnable shield against racial communalism and religious bigotryas well as an effective weapon to wipe away any fears the minoritiesmay harbour concerning discriminatory treatment but will also laya firm and lasting foundation on which to build a democratic, equaland just multi-racial society in Singapore. We accordingly recommendthat the present Article 8 [the then Malaysian equivalent of our Art 12]should be deleted and in its place we recommend the following two Articles:—

8a. Allpersons are equal before the law and entitled to the equal protectionof the law.

8b. (1) Exceptas expressly authorised by this Constitution and subject to theprovisions of this Article —

(a) nolaw shall make any provision that is discriminatory either of itselfor in its effect; and

(b) nopersons shall be treated in a discriminatory manner by any personacting by virtue of any written law or in the performance of thefunctions of any public office or any public authority.

(2) In this Article, the expression “discriminatory”means affording different treatment to different persons attributablewholly or mainly to their respective descriptions by race, placeof origin, colour or creed whereby persons of one such descriptionare subject to disabilities or restrictions to which persons ofanother such description are not made subject or are accorded privilegesor advantages which are not afforded to persons of another suchdescription.

(3) Paragraph (1)(a) of this Article shallnot apply to any law so far as that law makes provision —

(a) forthe appropriation of the general revenues of Singapore;

(b) withrespect to persons who are not citizens of Singapore;

(c) withrespect to adoption, marriage, divorce, burial, devolution of propertyon death or other matters of personal law.

(4) Nothing contained in any law shallbe held to be inconsistent with or in contravention of paragraph (1)(a) of this Article to the extent that itmakes provision with respect to standards or qualifications (not beingstandards or qualifications specifically relating to race, placeof origin, colour or creed) to be required of any person who isappointed to any office in the public service, any office in a disciplinedforce, or any office in the service of a body corporate establishedby any law for public purposes.

(5) Paragraph (1)(b)of this Article shall not apply to anything which is expressly orby necessary implication authorised to be done by any such provisionof law as is referred to in either of the two preceding paragraphs.

(6) For the purposes of paragraph (1)(b) of this Article, the certificate ofthe Attorney-General that the exercise of any discretion relatingto the institution, conduct or discontinuance of criminal proceedingsin any court that is vested in him or in any other person by orunder this Constitution or any other law has not been discriminatoryshall be conclusive and shall not be called in question in any court.

[emphasis added in italics, bold italicsand underlined bold italics]

184    Thelast sentence of para 32 of the 1966 Report (reproduced in full aboveat [87]) is also relevant and is, in fact, referred to in para 33of the same report (see the text in underlined bold italics in thequotation in the preceding paragraph). The last sentence of para 32of the 1966 Report reads as follows:

… Lastly, it should also be clearly andcategorically laid down that there shall be no discrimination inthe administration of any law, except as expressly authorised bythe Constitution, against any person on the ground only of race, religion, place of birth or descent.[emphasis added in italics, bold italics and underlined bold italics]

185    Itcan be seen that the 1966 Report was concerned, in the main, with theentrenching of fundamental rights relating to race,language as well as religion in a constitutional context.As pointed out in the 1966 Report itself (at para 33), given Singapore’sstatus as a newly-independent sovereign State at that time, “animpregnable shield against racial communalismand religious bigotry” [emphasisadded] had to be put in place; otherwise, societal division and/orfriction on racial, linguistic and/or religious lines could haveresulted in an acutely painful (or even fatal) rending or tearing apartof Singapore’s social fabric. That Singapore was (and continuesto be) a multi-racial, multi-religious, multi-cultural as well asmulti-lingual society meant that it was (and remains) particularlysusceptible to such a tragic fate if minority rights in relationto race, language and religion are not protected constitutionally.More importantly for the purposes of the present appeals, therewas no focus whatsoever on the issue of discrimination based on gender,sex and/or sexual orientation in the 1966 Report, and hence, no inclusion of these factors as prohibitedgrounds of discrimination under what is now Art 12(2).It might well be the case that the time is now appropriate for theinclusion of these factors as prohibited grounds of discriminationwithin our constitutional framework. However, that is a matter whichis entirely outside the remit of the court, and must (if at all)be effected (as already explained above at [92]) by our legislaturevia a constitutional amendment instead. Returningto the present appeals, it is clear, in our view, that given thelinguistic as well as historical contexts set out above, s 377A(which relates to matters of gender, sex and/or sexual orientation)does not fall within the scope ofArt 12(2). For that reason, it cannot possibly be inconsistent withArt 12(2).

186    Ms Barkerargued in her written submissions that domestic law, including theSingapore Constitution, should as far as possible be interpretedconsistently with Singapore’s international obligations (see Yong Vui Kong at [59]). She further arguedthat one of those obligations was to eliminate discrimination onthe basis of sexual orientation, and pointed out that our Governmenthad stated that the Singapore Constitution contained protectionfrom discrimination on this particular basis. In support of thiscontention, Ms Barker cited Singapore’s “Responses to the list ofissues and questions with regard to the consideration of the fourthperiodic report” dated 12 May 2011 to the United Nations’ Committeeon the Elimination of Discrimination against Women (“Singapore’s12 May 2011 Response”). Paragraphs 31 and 31.1 of Singapore’s 12 May2011 Response state as follows:

31.    Please comment on reports with regardto prevalent and systematic discrimination against women based onsexual orientation and gender identity in the social, cultural,political and economic spheres in the State party. What measuresare being undertaken to address these problems, especially witha view to destigmatizing and promoting tolerance to that end.

31.1  The principle of equality of allpersons before the law is enshrined in the Constitution of the Republicof Singapore, regardless of gender, sexual orientation and genderidentity. All persons in Singapore are entitled to the equal protectionof the law, and have equal access to basic resources such as education,housing and healthcare. Like heterosexuals, homosexuals are free tolead their lives and pursue their social activities. Gay groupshave held public discussions and published websites, and there arefilms and plays on gay themes and gay bars and clubs in Singapore.

187    Withrespect, we do not think there is any merit in this argument by Ms Barker.First, the above extract from para 31.1 of Singapore’s 12 May 2011Response does not in any way suggest that Art 12(2) should be expandedto include protection from discrimination based on “gender, sexualorientation and gender identity” since it makes no reference toeither Art 12(2) or its prohibited grounds of discrimination (viz, race, religion, place of birth anddescent). The phrase “equality of all persons before the law” inthe above extract is, in our view, a reference to Art 12(1), under whichthe “reasonable classification” test would indeed apply to all persons regardlessof “gender, sexual orientation and gender identity” (see above at [93]).

188    Secondly,and more fundamentally, international law and domestic law are regardedin Singapore as separate systemsof law, and the former does not form part of the latter “until andunless it has been applied as or definitely declared to be partof domestic law by a domestic court” (see, in the context of customaryinternational law, Yong Vui Kong at[91] as well as the decision of this court in NguyenTuong Van at [94]). Therefore, for the purposes of thepresent appeals, Singapore’s treaty obligations under internationaltreaties such as the Convention on the Elimination of All Formsof Discrimination against Women would not automatically have the effectof amending the Singapore Constitution to include new prohibited groundsof discrimination under Art 12(2).

Conclusion

189    Thepresent appeals were argued by both Ms Barker as well as Mr Raviwith great passion on behalf of their respective clients. This isnot surprising, especially when one takes into account the intensely controversial(and even emotional) nature of the arguments surrounding the natureand function of s 377A which have been canvassed by proponents oneither side of the extra-legal divide. Indeed, many of the argumentstendered to this court, whilst valid (or, at least, plausible) intheir own right, involved extra-legal considerationsand matters of social policy which were outside the remit of thecourt, and should, instead, have been canvassed in the legislativesphere. It is entirely appropriate, at this juncture, toreiterate a point we have already made several times in the courseof this judgment, not least because it is an extremely importantand fundamental one: the court can only consider legal (asopposed to extra-legal) arguments. Thisensures that it will not become a “mini-legislature”. The court cannot – and must not – assume legislative functions which are necessarilybeyond its remit. To do so would be to efface the very separationof powers which confers upon the court its legitimacy inthe first place. If the court were to assume legislative functions,it would no longer be able to sit to assess the legality of statutesfrom an objective perspective. Worsestill, it would necessarily be involved in expressing views on extra-legalissues which would – in the nature of things – be (or at least beperceived to be) subjective in nature.This would further erode the legitimacy ofthe court, which ought only to sit to administer the law in an objective manner.

190    Wehave carefully considered all the legal arguments tendered to this courtin all their various forms (including the relevant historical materials). Forthe reasons set out above, we dismiss both the present appeals.Given the unusual nature of these proceedings (not least becausethe decision of this court has implications for male homosexualsor bisexual males who might fall within the ambit of s 377A generally),we make no order as to costs both here and below. The usual consequentialorders will apply. Whilst we understand the deeply-held personalfeelings of the Appellants, there is nothing that this court cando to assist them. Their remedy lies, if at all, in the legislativesphere.