Case Summaries

Lim Meng Suang and another v Attorney-General

9 April 2013

Media Summary

Lim Meng Suang and another v Attorney-General
Originating Summons No 1135 of 2012/C

Decision of the High Court (delivered by Quentin Loh J)

1      Mr Lim Meng Suang and Mr Kenneth Chee Mun-Leon (“the Plaintiffs”), have been in a romantic and sexual relationship with each other for the past 16 years. On 30 November 2012, the Plaintiffs filed OS 1135 seeking, in effect, a declaration that s 377A of the Penal Code, which criminalises acts of “gross indecency” between males, is inconsistent with Art 12 of the Constitution, and is therefore void. Article 12 guarantees equal protection under the law.

2      The Plaintiffs argued, inter alia, that s 377A fails the test of unconstitutionality under Art 12 because s 377A is so absurd, arbitrary and unreasonable. Section 377A was unconstitutional under Art 12 because it disclosed no intelligible differentia, and the differentia upon which the classification was based bears no rational relation to the object of the law. In support of their case, the Plaintiffs also argued that “gross indecency” is too vague, potentially over-inclusive, and yet at the same time under-inclusive as it did not cover female homosexual conduct. Thus, s 377A does not meet the purpose which was intended for by the Legislature and is arbitrary.

3      The Attorney-General (“AG”) defendant argued that the differentia of males in s 377A was intelligible and bears a rational relation to the purpose of s 377A. The AG argued, inter alia, that the purpose of s 377A was to preserve public morality in relation to male homosexual conduct and signify society’s disapproval of such conduct. Section 377A in criminalising male homosexual conduct, therefore, bears a rational relation to the purpose of s 377A. Also important to the AG’s arguments was that the Legislature had decided to retain s 377A in the statutes books in 2007 after intensive debates in Parliament. The AG argued that this was a situation where the courts should not override what Parliament has already expressly considered and decided.

4      The court found that s 377A satisfied the legal requirements under Art 12, which was the reasonable classification test set out by the Court of Appeal in Tan Eng Hong v Attorney General [2012] 4 SLR(R) 476. The differentia underlying the classification made in s 377A was intelligible. The classification made by s 377A which differentiates male homosexuals as a class, also bears a rational relation to the purpose of s 377A. The court also found that the purpose of s 377A is not an illegitimate purpose which infringed the guarantee of equal protection of the law under Art 12. There was an acceptable basis for the purpose of s 377A as formulated by Parliament, even if this purpose only related to male homosexual conduct and not female homosexual conduct. Therefore, s 377A did not contravene Art 12 and is not void for unconstitutionality.

5      In conclusion, the court recognised that this was a controversial issue of moral and societal values which evolves over the time. Where such issues are fully debated in Parliament and Parliament makes a decision, the courts should be slow to overturn what Parliament has considered to be desirable for Singapore. This is particularly so, where the purpose behind Parliament’s decision is not without any basis.

6      For the above reasons, the declarations sought were not granted.

 

This summary is provided to assist in the understanding of the Court’s judgment. It is not intended to be a substitute for the reasons of the Court.

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