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Equal Justice and the Prosecutorial Power

Chan Sek Keong SC

(2022) 34 SAcLJ 256

This article considers the many novel propositions raised in the Court of Appeal’s judgment in Tan Seng Kee v Attorney-General [2022] SCGA 16. The Court of Appeal ruled, among other things, that the appellants lacked locus standi because the Attorney-General, in recognition of the Government’s “political compromise” in not repealing and not proactively enforcing s 377A of the Penal Code, had undertaken not to enforce the law. Such undertaking amounted to representations that engendered a substantive legitimate expectation that s 377A would not be enforced, which led the Court to declare that s 377A was unenforceable in its entirety. This article offers alternative interpretive approaches to these propositions, including the application of the reasonable classification test to s 377A and Art 12(1) of the Constitution, and further argues that there was no convincing basis for the Court not to address the primary issue in the appeals, viz, the constitutionality of s 377A.