It was applied in the case of Datchinamurthy, and it was applied in another case, Xu Yuan Chen, subsequently.Ģ2. Lawyers might know that the CA has applied the Syed Suhail approach to the Reasonable Classification Test in two cases – in May of this year, and in August of this year. “One could then conclude that the differentia embodied in s377A (namely male-male sex acts) lacks a rational relation to the legislative object of reflecting societal disapproval of homosexual conduct in general or safeguarding public morality generally.”Ģ0. “On the other hand, if one were to cast the legislative objective of s377A more broadly as the expression of societal disapproval of homosexual conduct in general or the safeguarding of public morality generally, that would strengthen the case that s377A falls afoul of the ‘reasonable classification’ test.”ġ8. When you look at the judgement, it says this: Two possible approaches, and if the approach in Syed Suhail is applied, then s377A is probably unconstitutional.ġ7. But they went on to say that if the approach in Syed Suhail was to be applied, then s377A might be unconstitutional.ġ6.
So, they set out two tests, the two possible approaches in two different cases, and they said, which is the right test to be applied? They will decide in future.ġ5. (c) The CA said that the test to be preferred needed to be considered in the future. And second, the approach in Syed Suhail, which is a more recent 2021 decision. One is the approach in Lim Meng Suang, which was a 2014 decision. (b) And they said that there were two possible approaches on how the reasonable classification test can apply. (a) On interpretation, it said that they will apply the reasonable classification test. But Art 12, I think lawyers would understand what that language means. So, Art 9 and Art 14 are clear, just dismissed out of hand. (c) What did they say on Art 12? They said, given our finding, that s377A is currently unenforceable in its entirety it is unnecessary for us to decide… consider that this issue merits further reflection on suitable occasion in the future.ġ3. (b) What did they say on Art 14? We therefore see no merit in the Art 14 Constitutional challenge. (a) On Art 9, what you will see is that the Court said that s377A does not violate Art 9(1) of the Constitution. (c) Third, it was challenged under Art 12 of the Constitution, which provides for Equality. (b) Second, it was challenged under Art 14 of the Constitution, which guarantees Freedom of Speech and Expression, (a) First, under Art 9 of the Constitution, that it was in breach of Art 9 in terms of protection of Life and Liberty, s377A was challenged in Tan Seng Kee on the following grounds: So today, I will just summarise my views on the two points.ġ1. This topic is going to be discussed extensively in Parliament. First, the constitutionality of s377A itself and two, the question of locus standi.ġ0. I will keep my remarks brief, and just focus on two legal points in assessing the risks. But I do not propose to go into that reason, because for the Forum today, the focus is on the second point – the legal risks.ĩ. As I have said, it is a reason that stands on its own.Ĩ. The PM explained during NDR why it was important to do this. The first of the two reasons is in itself a substantive reason. The two points that he mentioned are two independent reasons for the repeal of s377A. And he disclosed that the Attorney-General (AG) and I have advised on that.ħ. (b) Second, that the Government has been advised that there is a significant legal risk that s377A could be struck down by the Courts in a future challenge. Repealing s377A will provide some relief to gay people. We should not criminalise what people do in the privacy of their bedrooms. (a) First, repealing s377A is the right thing to do. He said it was going to be repealed, and he gave two reasons: Many of you will know, during the National Day Rally (NDR), PM spoke about s377A. The point is this – Is there a risk that the Courts could strike down s377A in a future challenge, in the context of the CA’s comments in Tan Seng Kee?Ħ. The focus of the discussion today is on the Tan Seng Kee Judgment delivered by the Court of Appeal (CA) earlier this year.ĥ. I wish to thank SAL and the LawSoc for organising this Forum on a very important legal issue – with significant implications for our society.Ĥ.
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