Singapore's Constitutional and Legislative Challenges on Gay Rights: Implications to Hong Kong

Image source: The ASEAN Post
​https://theaseanpost.com/environment/2022/jun/19/thousands-join-singapore-gay-rights-rally

Victoria Ip
Victoria (she/they) is currently a third-year Government & Laws student at HKU. She is vocal in local issues and hopes to strive for LGBTQ+ equality and protection.

Summary:
Subsequent to the striking down of s.377A in Tan Seng Kee, Singapore will decriminalise gay sexual intercourse, leaving possibilities for expansion of the definition of marriage in its Constitution. Sharing a similar ruling regime, how far is Hong Kong from Singapore on the protection of LGBTQ+ marriage and rights? What can be expected from Hong Kong Courts subsequent to Tan Seng Kee?

Introduction
​
Hong Kong is often being compared to Singapore, as both share similarities in its regime. Both are ruled within an authoritarian regime, though Hong Kong seemingly enjoys a wider variety of freedom and rights, ranging from freedom of speech to demonstrations and assemblies. However, recent legal and social development in LGBTQ+ issues in Singapore could suggest otherwise: the Singaporean Parliament is seeking the possibility of putting forward a more LGBTQ+ friendly Constitution, following the Supreme Court’s judgement that repealed the s.377A of the Penal Code (criminalisation of gay sexual intercourse)(“s.377A”). While such a change marks the unprecedented breakthrough of within the authoritarian regime, one may wonder if Hong Kong will keep up with her fellow competitor in LGBTQ+ protection and rights. 

What can we learn from Tan Seng Kee?

Introduced in 1938, s.377A states that “any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to 2 years.” [1]
In 2007, the Parliament debated s.377A and a petition to repeal was presented. [2] In response, Prime Minister Lee Hsien Loong promised that s.377A would not be proactively enforced, yet the status quo was maintained. [3] Meanwhile, challenges of s.377A on the ground of violations of constitutional rights guaranteed under the Constitution of Singapore were first brought up in 2010. Yet, they have never been successful. [4]
Returning to early 2022, the three appellants of Tan Seng Kee, who each filed an appeal, challenged the constitutionality of s.377A for violating “Liberty of the person”, “Equal protection” and “Freedom of speech” protected under the Constitution of Singapore. [5] The Court, relying on the political compromise of the Government in 2007, and the subsequent general policy articulated by the Attorney-General (“AG”) in 2018, held that the representations of the AG had legally creates substantive legitimate expectations* [6] and hence the expectations held by gay men deserve legal protection. On this basis, the Court declared s.377A “unenforceable in its entirety. [7]
*Substantive legitimate expectation is a ground that can be relied on in administrative legal challenges. Under the rule, the public authority must treat the persons to whom they owe representations to in the way they have promised. 
While one may see the declaration of the Court as successful, the appellants did not secure their grounds on constitutionality – the Court did not find it necessary to address the constitutional questions after ruling for the substantive legitimate expectation. [8] Though now unenforceable, s.377A was never ruled unconstitutional on the basis that it discriminated the liberty, equality and freedom of gay men, implying that gay men are not constitutionally recognised to enjoy same degree of equality and liberty as the majority of Singaporean. [9]

What is next for Singapore?

In August 2022, Lee announced that the Government would put forward the motion in the Parliament to repeal s.377A to decriminalise homosexual intercourse. To limit the Court’s authority in defining marriage, the Constitution is to be amended to protect the Parliament’s right to define marriage. [10] The Minister of Home Affairs and Law added that the traditional heterosexual marriage would not be enshrined in the Constitution, leaving open the chances for the Parliament to debate for amendments to the expansion of definition of marriage to include more from the LGBTQ+ community. [11] Despite the recognition of increasing openness and acceptance towards diversity, Lee believed that Singapore is still largely a “traditional society with conservative social values” including heterosexual marriage. [12] 

What about Hong Kong? 

Same-sex intercourse was decriminalised in Hong Kong in 1991 by the Legislative Council, [13] and similarly to the stance of the Singaporean Courts, the LGBTQ+ community has never been successful in constitutional challenges on the traditional family and heterosexual marriage protected by the Basic Law [14], despite the gender neutral language enshrined in the Basic Law. [15] The recent judicial review judgement of Sham Tsz Kit endorsed the view of MK, upholding that foreignly recognised same-sex marriage does not equate to a local recognition, and that legally recognised marriage in Hong Kong only includes heterosexual marriages. [16] The only breakthrough in terms of LGBTQ+ marriage over the years is the ruling in favour of post-operative transsexuals in W and subsequent cases. [17]

While Singapore is taking her first step in discussing on possible constitutional amendments for promoting equality, it is not foreseeable that the Court in Hong Kong would be prepared to declare same-sex marriages as having same legal recognition and protection. Nevertheless, the Court has been responsive in pinpointing unconstitutional governmental policies (e.g. Home Ownership Scheme in Nick Infinger) and administrative decisions (e.g. Dependent Visa in QT, joint salaries tax assessment in Leung Chun Kwong). This seems to be the balance struck by the Court in safeguarding the unique status quo of traditional heterosexual marriages and social values in Chinese society alongside expanding protection of rights and equality enjoyed by minorities. We can merely hope that the legislative and governmental acceptance to LGBTQ+ community would catch up with the Court’s readiness. 

Bibliography

[1] Penal Code 1871 
[2] Lam, S. (2022, February 28). Court of Appeal rules Section 377A stays but cannot be used to prosecute men for having gay sex. The Strait Times. 
https://www.straitstimes.com/singapore/courts-crime/court-of-appeal-rules-section-377a-stays-but-cannot-be-used-to-prosecute-men-for-having-gay-sex 
[3] n.d.(2007, October 24). Full parliamentary speech by PM Lee Hsien Loong in 2007 on Section 377A. The Strait Times.           
https://www.straitstimes.com/politics/full-parliamentary-speech-by-pm-lee-hsien-loong-in-2007-on-section-377a 
[4] Lam, S. (2022, February 28). Court of Appeal rules Section 377A stays but cannot be used to prosecute men for having gay sex. The Strait Times. 
https://www.straitstimes.com/singapore/courts-crime/court-of-appeal-rules-section-377a-stays-but-cannot-be-used-to-prosecute-men-for-having-gay-sex 
[5] Para. 21, Tan Seng Kee & Others v Attorney-General [2022] SGCA 16
[6] Para. 134, ibid.
[7] Para. 149, ibid.
[8] Para. 330, ibid.
[9] Lam, S. (2022, February 28). Court of Appeal rules Section 377A stays but cannot be used to prosecute men for having gay sex. The Strait Times. 
https://www.straitstimes.com/singapore/courts-crime/court-of-appeal-rules-section-377a-stays-but-cannot-be-used-to-prosecute-men-for-having-gay-sex 
[10] Ong, J. (2022, 21 August). NDR 2022: Govt to repeal Section 377A, amend Constitution to protect marriage definition from legal challenges. Today. 
https://www.todayonline.com/singapore/ndr-2022-section-377a-repeal-constitution-1974206 
[11] Yuen-C, Tham. (22 August 2022). Section 377A: Constitution will be amended to protect Parliament's right to define marriage, says Shanmugam. The Straits Times. https://www.straitstimes.com/singapore/politics/constitution-will-be-amended-to-protect-parliaments-right-to-define-marriage-shanmugam 
[12] Ong, J. (2022, 21 August). NDR 2022: Govt to repeal Section 377A, amend Constitution to protect marriage definition from legal challenges. Today. 
https://www.todayonline.com/singapore/ndr-2022-section-377a-repeal-constitution-1974206 
[13] Low, Z. (2019, 12 July). How Hong Kong passed homosexuality law, decriminalising same-sex acts, in 1991. South China Morning Post. 
https://www.scmp.com/magazines/post-magazine/short-reads/article/3018139/how-hong-kong-passed-homosexuality-law 
[14] n.d. (2022, August 24). Jailed gay rights activist loses appeal to have Hong Kong marriage laws reviewed. The Standard. 
https://www.thestandard.com.hk/breaking-news/section/4/193842/Jailed-gay-rights-activist-loses-appeal-to-have-Hong-Kong-marriage-laws-reviewed%C2%A0 
[15] Art.37, Basic Law of HKSAR. 
[16] n.d. (2022, August 24). Jailed gay rights activist loses appeal to have Hong Kong marriage laws reviewed. The Standard. 
https://www.thestandard.com.hk/breaking-news/section/4/193842/Jailed-gay-rights-activist-loses-appeal-to-have-Hong-Kong-marriage-laws-reviewed%C2%A0 
[17] Lau, S., Lai, Y. (2013, May 13). Finally I can marry my boyfriend: Transsexual plans wedding after landmark court victory. South China Morning Post. 
https://www.scmp.com/news/hong-kong/article/1236633/finally-i-can-marry-my-boyfriend-transsexual-plans-wedding-after