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| Sgconlaw/Tan Eng Hong v. Attorney-General | |
|---|---|
 The Old Supreme Court Building, photographed in April 2007 | |
| Court | High Court of Singapore |
| Full case name | Tan Eng Hong v. Attorney-General |
| Decided | 2 October 2013 |
| Citation | [2013] 4 S.L.R. 1059 |
| Case history | |
| Related action | Tan Eng Hong v. Attorney General [2012] 4 S.L.R. 476, C.A. |
| Court membership | |
| Judge sitting | Quentin Loh J |
| Case opinions | |
| Constitutionality of section 377A of the Penal Code; whether section 377A of the Penal Code violated Article 12(1) of the Constitution of the Republic of Singapore | |
Tan Eng Hong v. Attorney-General is a 2013 decision of the High Court of Singapore by Justice Quentin Loh ("Loh J"). The plaintiff, Tan Eng Hong, challenged the constitutionality of section 377A of the Penal Code,[1] which criminalises acts of gross indecency between males. One of the grounds of challenge was that section 377A was void for inconsistency with Article 12(1) of the Constitution of Singapore,[2] which guarantees a citizen’s right to equality and equal protection of the law. This was ultimately rejected by Loh J. In his judgment, Loh J referred to the relevant portions of his decision in the case of Lim Meng Suang v. Attorney-General ("Lim Meng Suang"), which concerned a similar challenge to section 377A.
In Lim Meng Suang, the learned judge noted that Article 12(1) does not require that all persons are to be treated equally, but that all persons in like situations are to be treated alike.[3] A law that differentiates between individuals will not be in breach of Article 12(1) if it satisfies the "reasonable classification" test. In the present case, Loh J clarified that this test was to be applied for all constitutional challenges involving Article 12(1). The "reasonable classification" test comprises two stages. The first stage requires that there be an intelligible differentia underlying the classification adopted in the legislation, and the second stage requires that this differentia bears a rational relation to the object sought to be achieved by the legislation.
Having determined that the object of section 377A was to criminalise acts of gross indecency between males, Loh J found a complete coincidence between the differentia adopted, which covered only acts of gross indecency between males, and the object of section 377A. Thus the “reasonable classification” test was satisfied and section 377A was not in breach of Article 12(1).
However, Loh J noted that even if the "reasonable classification" test was satisfied, a piece of legislation could still be struck down if its object was illegitimate. Reiterating part of his reasoning in Lim Meng Suang, Loh J stated that the object of section 377A was not illegitimate, since it essentially addressed a social and public morality concern.
Lastly, Loh J held that the word "law" in Article 12(1) did not include fundamental rules of natural justice. Therefore, section 377A could not be said to be unconstitutional because it did not observe the fundamental rules of natural justice.
- ^ Penal Code (Cap. 224, 2008 Rev. Ed.)).
- ^ Constitution of the Republic of Singapore (1999 Reprint).
- ^ Lim Meng Suang, p. 134, para. 44.