SINGAPORE, Feb 28 — The nation’s highest court has ruled that Section 377A of the Penal Code, which criminalises consensual sex between men, cannot be enforced in its entirety until the Attorney-General (AG) "provides clear notice” of two things in his capacity as the Public Prosecutor.

These are: The AG’s intention to reassert his right to enforce Section 377A proactively by way of prosecution, and that the AG will no longer abide by a 2018 stance that it would not be in the public interest to prosecute based on the conduct of two consenting adults in a private place.

This ruling was handed down on Monday (Feb 28), as five Court of Appeal judges released their judgment on three legal challenges to Section 377A — the second time in a decade that it has ruled on the matter.

This latest ruling came after three gay men challenged the constitutionality of Section 377A, following an Indian court’s decision to lift a ban on consensual gay sex in September 2018. They then appealed the High Court’s dismissal of the challenges.

Chief Justice Sundaresh Menon, who delivered the 152-page judgment on behalf of the apex court, said it was unnecessary for the court to address the constitutional challenges, given their position on the enforceability of Section 377A.

Nevertheless, the court ruled that the challenges were unmeritorious and dismissed them, agreeing with High Court judge See Kee Oon that Section 377A did not deprive a person of "life or personal liberty” under Article 9(1) of the Constitution of Singapore.

"(The appellants) do not face any real and credible threat of prosecution under Section 377A at this time and therefore do not have standing to pursue their constitutional challenges to that provision,” the chief justice added.

He further noted that any discussion on its constitutionality cannot ignore the terms, purpose and consequences of the political compromise that was struck in Parliament in 2007. Section 377A was retained then, with Prime Minister Lee Hsien Loong saying then that the Government would not proactively enforce it.

However, the chief justice stressed that any judicial ruling on Section 377A "ought to concern only its legality or constitutionality and cannot extend to the policy merits or socio-political desirability of retaining or repealing” it.

The apex court listed three points on the political reality surrounding Section 377A:

• Although it was retained in Singapore’s statute books, it was on the terms that it would not be proactively enforced

• The reason for retaining the law in 2007 "says nothing” about why it was enacted

• Instead, the retention was "directed at addressing a deeply divisive socio-political issue in a pragmatic way”

• The purpose of the political compromise reached in 2007 was to "strike a careful balance between the opposing interests of various groups”

Chief Justice Menon added: "The Government’s evident unwillingness to repeal Section 377A signals its assessment that society has yet to adequately integrate the opposing views of mainstream conservatives and the homosexual community, as well as its awareness that our multi-racial, multi-lingual and multi-religious community remains vulnerable along such fault lines.

"The Government was especially cognisant that forcing the issue would polarise those who are ‘presently willing to live and let live’.”

The court did not make any order for costs given the "unusual nature of the proceedings, the important questions of public interest that were raised and the findings that we have arrived at”.

The three challenges were brought in 2018 by disc jockey Johnson Ong Ming, 45; former executive director of advocacy group Oogachaga Bryan Choong, 44; and retired general practitioner Roy Tan Seng Kee, 62.

Ong was represented by Eugene Thuraisingam, Suang Wijaya, Johannes Hadi and Joel Wong from Eugene Thuraisingam LLP, while Choong’s team of lawyers comprise Senior Counsel Harpreet Singh Nehal, Remy Choo, Priscilla Chia and Wong Thai Yong.

Dr Tan was represented by human rights lawyer M Ravi, who was also involved in the first series of Section 377A challenges in 2014.

In emailed comments on Sunday morning, Dr Tan said the challengers hoped justice would prevail and that the "archaic law” will be struck down as it has in other former British colonies, such as India and Hong Kong. — TODAY