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Equal Justice under the Constitution and Section 377A of the Penal Code: The Roads Not Taken

Chan Sek Keong SC

(2019) 31 SAcLJ 773

This article takes a fresh look at s 377A of Penal Code (Cap 224, 2008 Rev Ed), and critically considers its scope and object against the backdrop of the Court of Appeal’s and High Court’s decisions in Lim Meng Suang v Attorney-General [2015] 1 SLR 26 and Tan Eng Hong v Attorney-General [2013] 4 SLR 1059. Through a close examination of the legislative history of s 377A, it argues that s 377A is not concerned with male-male penetrative sex covered by the repealed s 377 (sex against the order of nature), but with other acts of gross indecency. The article also (a) argues that the proper application of Art 12(1) – especially in the case of penal statutes – requires the court to first find a justifiable cause for discrimination, and then to apply the “reasonable classification” test against the impugned law; and (b) examines other issues relating to constitutional adjudication, such as the presumption of constitutionality, and the relationship between equality before the law and entitlement to equal protection of the law, and the scope of Art 162 of the Constitution of the Republic of Singapore (1999 Reprint).