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Reasonable Classification Test

To determine whether a statute or section will contravene Article 12 of the Constitution, Quentin Loh J applied the reasonable classification test set out in the case of Tan Eng Hong v PP. The test is described as follows:

Where the impugned legislation has a differentiating measure, that legislation will only be consistent with Article 12(1) if:

1. The classification prescribed is founded on an intelligible differentia (“First Limb”)
2. The differentia bears a rational relation to the object sought to be achieved by that legislation (“the Second Limb”). To answer this question, the following inquiry has to be undertaken:
   1. What is the object of the statute?
   2. Does the basis of the discrimination bear a rational relation to the object?

First Limb - Intelligible differentia

The classification prescribed by the legislation must be founded on an intelligible differentia. Intelligible differentia is defined as a logically understood distinguishing character, akin to the distinction between different species within the same genus.

Application of the test

S377A passes the intelligible differentia test. Male homosexuals or bisexual males who perform acts of “gross indecency” on another male - is based on an intelligible differentia. The section excluded gross acts of indecency between male-female couples and female-female couples.

Second Limb -Differentia bears a rational relation to the object sought to be achieved by that legislation

Charlottes part

Difficulties with the Second Limb

Ascertaining the object of the statute

There were several difficulties to ascertaining the object of the statute. These difficulties surrounded whether the legislature had articulated the purpose and if the purpose of the entire legislation is to be taken into account or only that section was to be considered. Notable difficulties were whether the object should be framed narrowly or widely and whether the original purpose of adopted foreign legislation is used or should the Singapore purpose for introducing it be used. As societies change over time, the original purpose may cease to exist, in such cases the difficulty lies in whether a new purpose substitute the old.

The rational relation element

The judge also noted the issues surrounding the application of the rational relation element. These were whether courts could strike down legislation if a more efficient or different classification would better achieve the purpose of the provision. If there were significant under-classification (where the purpose of the legislation covers five different groups in society but the legislation only singles out and affects one of the five groups), would there be no rational relation between the differentia and the purpose. In cases of over-classification (where the purpose of the legislation covers two groups in society but the section affects five other groups), would there be no rational relation between the differentia underlying the classification and the purpose?

Purpose of s 377A is not an illegitimate purpose

Quentin Loh J ruled that the purpose of s 377A was not illegitimate as it addressed a social and public morality concern which was affirmed in the October 2007 Parliamentary debates. He noted that an argument that could be made against the legitimacy of s 377A was that female homosexual conduct was not criminalized while male homosexual conduct was. This argument failed because the plaintiffs did not produce cogent and compelling evidence to establish that criminalizing only male homosexual conduct was illegitimate. This was decided even though the two-step 'Tan Eng Hong' test was satisfied.

There were two reasons for deciding in that the underlying purpose of s 377A was not illegitimate.

1. The weight of historical practices vis-à-vis male homosexual conduct suggests a basis for those practices
2. Specific traditions with regard to procreation and lineage

The first reason was rooted in the idea that courts should not be quick to dismiss longstanding laws. To do so required what the judge termed “justification of proportionate magnitude”. If there was insufficient justification then the decision to repeal the law should be left to Parliament.

The court then went to examine the unsuccessful attempt to criminalize female homosexual conduct in English law. The court reasoned that this was so due to Judeo-Christian traditions that proscribed male homosexual practices in clear terms in the Bible while there was only passing reference to women who exchanged natural relations for those contrary to nature. After examining the definition of ‘sodomy and ‘bestiality’, the judge held that their definitions were not gender neutral and that two women could not sodomise one another. With reference to prosecutions under s 377, the honorable justice Loh noted that the Court of Appeal in 'PP v Kwan Kwong Weng' deliberately avoided saying that woman-to-woman cunnilingus fell within s 377. He concluded his analysis by observing that the common law has never criminalized female homosexual conduct.

The second reason was based on the judge’s notion that portions of Singapore society still held deep seated feelings with regard to procreation. He referred to Mr Baey Yam Keng’s views in the October 2007 Parliamentary Debate where the honorable Member of Parliament explained that the Singapore Chinese society was still traditional and parents expected male children to marry and produce offspring to carry on the family name. The court then noted that homosexual men could not have children and thus would disappoint these hypothetical parents. While qualifying his opinions, the judge noted that that was not conclusive proof that Singapore’s society treats procreation and lineage as an important value. But in any event the court ruled that laws should not be dismissed as illegitimate where there are justifications within the context of societal mores and norms.

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