A Brief Analytical Critique Of The Judgment – Ong Ming Johnson Vs Attorney General: Departure From Navtej Singh Johar Vs Union Of India

Criminal Law | Gender Issues
August 24, 2020

Promita Sinha

Promita is a final year student of BA LL.B (Hons.) at Symbiosis Law School, Pune. She has a keen interest in Comparative Constitutional Law, International Trade and International Relations. She has a flair for writing, quizzing and public speaking, and is a voracious reader.

Introduction

Since time immemorial, homosexuality has been caught in a mire of societal, legal and moral ethos. The regressive discrimination against homosexuals in several nations has been a matter of grave concern, much contention and detailed discourse. The judgment on Ong Ming Johnson vs Attorney General[1], pronounced by the Singapore High Court on March 30, 2020 deals with some of the most intricate questions on which the fundamental premise of the Constitution of Singapore rest – equality, freedom of opportunity and rights. Singapore’s South Asian neighbour India decriminalised homosexual acts on September 6, 2019 after a long drawn battle to recognize equality of all sexes and identities and uphold the pillar of equality. The author in this article shall analytically compare the difference in jurisprudential understanding between the Singapore High Court and the Supreme Court of India.

Understanding the Legal Framework

In order to understand the legal nuances of this case, we must briefly delve into the historical background of the issue. The Constitution of the Republic of Singapore which came into effect in 1955, is pari-materia to the Constitution of Malaysia and the Constitution of India, deriving some of its basic essential tenets from them. The fundamental rights of citizens of Singapore include crucial rights such as the right to freedom of speech and expression[2], prohibition of forced labour[3], freedom of religion[4], liberty of individuals[5] and most importantly, equal protection before law[6].

Under Article 12 of the Constitution, all persons are granted equal protection by the law and no discrimination on the basis of religion, race, descent or place of birth is enshrined. This provision, however, keeps beyond its ambit any personal laws and religious affairs which may allow special preferences to specific persons or classes of society.

The other Constitutional provision crucial to the present case of Ong Ming Johnson is Article 14 which bestows on the citizens of Singapore the right to freedom of speech and expression. The provision isn’t all-encompassing, it comes with the caveat of the Parliament holding the power to make such laws as it may deem necessary in the interest of law, public order, morality or security concerns, among other reasons.

Further, the main statutory provision in contention is Section 377A of the Penal Code of Singapore which deems an offence a sexual activity – ‘act of gross indecency’ between two male persons whether in public or in private. This provision criminalising acts of homosexuality has been the basis of litigations before the Courts of Singapore. What is interesting to note is that this provision is not only ambiguous but is also overstepping the fundamental dictum of equality as it specifically targets men who engage in these undescribed ‘acts of gross indecency.’ Privacy or gender neutrality does not come into the arena of interpretation as far as Section 377A is concerned.

Critical Analysis of the Judgment

The Presiding Judge of the High Court of Singapore laid down certain issues based on the submissions of the Plaintiff and the Defence. The issues which came to the fore were the inclusion of non-penetrative sexual activity between homosexual men and commercial homosexuality included in the ambit of Section 377A, whether reasonable classification and intelligible differentia exist in the contended Section, whether sexual orientation and sexual preference are also covered in the folds of freedom of expression as under Article 14 of the Constitution.

The Plaintiff argued on several grounds invoking several references of books and accounts such as the Empire and Sexuality: The British Experience by Ronald Hyam, The Memoirs of a Malayan Official by Victor Purcell, other reports among other documents. One of the major arguments brought forth was that Section 377A failed the test of reasonable classification and intelligible differentia as is the basic tenet of Article 12 which ensures equal protection under law of all. The Court went on to hold that the circumference of Section 377A extended to commercialized homosexual acts and that “no rational nexus between the legislative object (criminalising male prostitution) and the intelligible differentia (male-male sexual acts) due to s 377A’s over-inclusiveness” exists. On the basis of other cases such as Lin Meng Suang CA, the High Court applied a tautological understanding that the focus of Courts should be on ensuring equality within classes instead of creating newer classes, though this logic is against the principle of inclusion. The Court’s answer to the claims of the Plaintiff is that the laws of Singapore do not intend to discriminate against homosexuals as under the scope of Article 12, instead the aim is to protect and preserve public morals. To critically analyse this logic, the author is of the view that Singapore being traditionally rooted and its Courts and Legislature having a strong guardian hand over public morality leads it to deem itself to not only be the protector of public morals but also the creator and determinant of those standards.

Articles 12(1) and 14(1) have a common string of determination – proportionality of the equal protection imparted and the freedom given as compared to the restraints exercised on the freedoms by the Legislature in order to maintain the ultimate objective of the Statute/provision. Using Malaysian judgments, instances from the European Court of Human Rights and European Court of Justice, the Singapore High Court made several references in order to establish its stand of the ‘rational and reasonable’ existence of Section 377A of the Penal Code, using all canons of interpretation.

Difference from Navtej Singh Johar vs Union of India

The celebrated Indian judgment of Navtej Singh Johar vs Union of India[7], was used as a reference by the Plaintiffs to drive home the point of acceptance of homosexuality and decriminalise consensual sexual acts between two consenting adult males. The Indian Constitution recognizes equality before the law irrespective of race, sex, caste, creed and other factors under the Fundamental right of Article 14 of the Constitution. This landmark judgment once again saw the invocation and establishment of the ‘golden triangle’ of Articles 14, 19 and 21 – equality before law,[8] freedom of speech and expression[9] and the right to life[10] – enunciating that each depends and fuels the other two fundamental rights.

The Navtej Singh Johar judgment had been a long drawn battle after the Delhi High Court had first deemed unconstitutional the homosexual act criminalising penal provision[11] in the case of Naz Foundation vs Government of NCT of Delhi[12]. This judgment was soon overruled by the Hon’ble Supreme Court of India in the case of Sushil Kumar Koushal vs Naz Foundation[13]. In 2019, a higher bench strength finally deemed unconstitutional Section 377 decriminalising acts of homosexuality.

The Supreme Court of India through this judgment recognized the right to life with privacy[14] and dignity of people of all sexual orientations. They recognized and upheld the fundamental rights of the LGBTQ members who are a minority in the society and since time immemorial been subjected to oppressive and regressive legal and social regimes. The Court affirmed that the sexual acts between two consenting adults is “beyond the legitimate interest of the State” and in the name of public morality there should not be attempts to “efface identities.”

 The Singapore High Court differed from the stance taken by India on the issue of decriminalisation of homosexual acts. This can be observed in a threefold manner. Firstly, the Singapore Constitution does not recognize the basic structure doctrine as India does. Therefore, as India retains the rigidity of strict compliance of all laws and judgments with the fundamental tenets of the Indian Constitutional values, Singapore does not hold that rigidity and its Constitution is malleable to changes as per the Legislative will. Secondly, the judgment highlights a strong sense of justification of traditionally held views and public moral ideologies even in the light of several strong references and reports, even medical journal citations which establish the naturality of homosexuality. Thirdly, the interpretation of Articles 12 and 14 of the Singapore Constitution recognizing equality and freedom have been held by the Court to be the prime guidance for all laws in the country. If a law has been identified to meet the requirements fulfilling the fundamental protection, a voice against its unconstitutionality will not be recognized unless the specific provision in its entirety is beyond the equal protection of law. A deep-rooted majoritarian and class-driven legal structure exists in the voice of the Courts and the Legislature of Singapore.

In conclusion, one can hope that the case if appealed to and entertained before the Supreme Court of Singapore, recognizes the liberty, identity and rights of homosexuals and persons across all sexual orientations. In the 21st century, it is imperative that we break the shackles of deep seated and orthodox biases, move beyond the confines of prejudices and open doors to acceptance and inclusivity for all. It is the prerogative of a progressive, modern and democratic government to lead by example and protect the interests of minorities and all historically marginalised and discriminated sections of society. As an ultra-progressive, technologically adept and economically booming country, Singapore has the world’s attention on it. However, when judgments like the present one emerge from the sacred chambers of justice, it reveals the true grotesque image of the still pervading prejudices and biases conventionally orthodox societies like those in South-East Asia hold. It is only with consistent effort that the wheels of change can make a difference.


*This article was part of the Legall Arena Article Writing Competition organised by The Law Culture.

Preferred Citation: Sinha, P., “A Brief Analytical Critique Of The Judgment – Ong Ming Johnson Vs Attorney General: Departure From Navtej Singh Johar Vs Union Of India”, The Law Culture (2020)

[1] Ong Ming Johnson vs Attorney General, (2020) SGHC 63.

[2] Article 14, Constitution of the Republic of Singapore, 1955.

[3] Article 10, Constitution of the Republic of Singapore, 1955.

[4] Article 15, Constitution of the Republic of Singapore, 1955.

[5] Article 9, Constitution of the Republic of Singapore, 1955.

[6] Article 12, Constitution of the Republic of Singapore, 1955.

[7] Navtej Singh Johar vs Union of India, W. P. (Crl.) No. 76 of 2016

[8] Article 14, Constitution of India, 1950.

[9] Article 19(1)(a), Constitution of India, 1950.

[10] Article 21, Constitution of India, 1950.

[11] Section 377, Indian Penal Code, 1860.

[12] Naz Foundation vs Government of NCT of Delhi, 160 DLT 277.

[13] Suresh Koushal v. Naz Foundation, (2014) 1 SCC 1.

[14] K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

Author

Promita Sinha

Promita is a final year student of BA LL.B (Hons.) at Symbiosis Law School, Pune. She has a keen interest in Comparative Constitutional Law, International Trade and International Relations. She has a flair for writing, quizzing and public speaking, and is a voracious reader.

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