IN THE COURT OF APPEAL OF THE REPUBLIC OF SINGAPORE [20141 SGCA 53 Civil Appeal No 54 of 2013 and Summons Ho 3664 of 2013 Between (1) LIM MENG SUANG (2) KENNETH CHEE MUNFLEON . . . Applicants/Appellants And ATTORNEY-GEN ERAL .1 . In the Matter of Originating Summons No 1135 of 2012 In the matter of Articles 4, 12 and 162 of the Constitution of the Republic of Singapore Between LIM MENG HUANG KENNETH CIIEE MUN-LEDN . 1 . Plainti??i And ATTORNEY-GENERAL Defendant Civil Appeal No 125 01?2013 Between TAN ENG HUNG Appellant And ATTORNEY-GENERAL .. Respondent In the Matter ol? Originating Summons No 994 of 2010 In the matter ol? Artieles 4, 9, 12, 14 and 162 ol? the Constitution of the Republie of Singapore Between TAN ENG HUNG Plaintiff And ATTORN .. . Defendant JUDGMENT [Constitutional Law] [Equal protection of the law] [Equality before the law] [Constitutional Law] [Fundamental liberties] ?w [Right to lite and personal liberty] [Constitutional Law] [Constitution] [Interpretation] TABLE OF CONTENTS INTRODUCTION .. 1 OVERVIEW .. GENERAL .. 4 Only legal arguments are relevant .. 4 What is legally relevant (and irrelevant) in the context of the present appeals 6 BACKGROUND FACTS AND PROCEDURAL HISTORY ..11 SUMMARY OF THE ARGUMENTS IN THE COURT BELOW ..10 THE DECISIONS BELOW .. 12 THE DECISION 1N MENO SHANE .. 12 THE DECISION rH TAH ENE Home .. 13 THE RESPECTIVE CASES ON APPEAL "14 CA 54/2013 ..14 CA 125/2013 ..17 THE ES BEFORE THIS COURT ..19 THE ISSUES ..19 T1 1E ISSUES ..2O WHETHER 377A VIOLATES ART 9(1) ..21 WHETHER 377A VIOLATES ART 12(1) ..26 THE RELEVANT LEGAL PROVISIONS .26 Tue APPLICABLE 'resr roe 'I?l-lE Tesr "27 The test articulated .. .27 The difficulties Him?! the ?reasrmable classi?cation test .. 29 The true nature and function of the test "29 (2) The ?reasonable classi?cation" test in relation to the concept of equality in Art 12(1) ..36 Is AN ADDITIONAL TEST or .. 38 THE leflGAL RELATIONSHIP Between ART 12(1) AND Aar 12(2) ..46 Art 12(1) aridArt 12(2) read inter se .. 4:3 Comparative constitutional provisions .. 50 (1) Constitutional provisions which make express reference to ?sex?, ?sexual orientation" antifor ?gender? ..50 (2) Openpended constitutional provisions .. 54 A ester SUMMARY or OUR ANALYSIS THUS FAR .. 55 Don oeersron ON waerasa 377A ART 12(1) .. 57 Our approach .. 5 7 Is there a presumption ofconstitutionality? .. 57 Application ofthe ?reasonable classification test to 377/1 .. 5 9 is the classi?cation prescribed by 377A based on an intelligible it?l'ercnti a? .. 60 is there a rational relation between the differentia embodied in 377A and the purpose and object of the provision?? ..63 (it) What is the purpose and ohjeet ofs 3 .. 63 (I) The English origins 1" 377A ..63 (ll) The introduction of 377A into the Straits Settlements in 1938 ..64 The Attorney-General?s speech before the Straits Settlements Legislative Council ..65 (W) The Objects and Reasons accompanying the 1938 Penal Code Amendment Bill ..66 (V) Important questions raised ..66 (VI) Other relevant historical documentation .. 67 Colonial Of?ce correspondence Annual Reports on the Organisation and Administration of the Straits Settlements Police and on the State of Crime ..63 (VII) Analysis of and decision on the purpose and object of 377A ..70 A comparative perspective? .. 80 (B) Is the ?rational relation requirement satis?ed? .. it] The issue ofillegitimacy .. 81 The status and role ofextra-iegal arguments .. 82 The ?tyranny ol? the majority? .. 83 (2) The argument based on the absence of harm (and societal morality revisited) .. 84 (3) The argument based on immutahility and/or the intractable dif?culty of change ..91 (4) The safeguarding of public health .92 Summary of our discussion oi" the Appellants? extra-legal arguments .. .92 Our rulingr on the constitutionality ofs 377A under Art 12(1) .. 94 WHETHER 5 377A FALLS WITHIN THE SCOPE OF ART 12(2), AND IF SO, WHETHER IT VIOLATES THAT PROVISION "94 CONCLUSION "99 This judgment is subject to ?nal editorial corrections approved by the court and/or redaction pursuant to the publisher?s duty in compliance with the law, for publication in LawNet and/or the Singapore Law Reports. Lim Meng Suang and another Attorney-General and another appeal and another matter [2014] sum 53 Court of Appeal No 3664 of 2013 Andrew Phang Boon Leong JA, Belinda Ang Saw Ban and Woo Bih Li July; 6 August 2014 Civil Appeals Nos 54 and 125 012013 and Summons 23 October 2014 Judgment reserved. Andrew Phang Boon Leong JA (delivering the judgment of the court): Introduction Overview 1 There are very 'l'ew legal provisions in the Singapore legal landscape which, although simply stated (and intuitively attractive), are very dif?cult to apply in practice. Article 12 of the Constitution of the Republic of Singapore (1985 Rev Lid, 1999 Reprint) (?the Singapore Constitution?) is one of these rare exceptions. In particular, Article 12(1) of the Singapore Constitution (?Art which is one of the provisions in issue in the present appeals (via, Civil Appeal No 54 012013 54/2013?) and Civil Appeal No 125 of 2013 is simple in its economy of language: Lim Meng Strong AC- [2014] SCCA 53 Equal protection All persons are equal before the law and entitled to the equal protection of the law. 2 The issue before this court in the present appeals can be stated very simply: is 377A of the Penal Code (Cap 224, 2008 Rev Ed) (?the current Penal Code") inconsistent with Art 9 and/or Art12 of the Singapore Constitution (referred to hereafter as ?Art 9? and ?Art 12?, respectively), and hence, unconstitutional to the extent of such inconsistency? In this regard, Art9(l) oi? the Singapore Constitution which is the speci?c provision in Art9 that the appellants in CA 54/2013 and the appellant in CA125X2013 (collectively, ?the Appellants") are relying on, provides as follows: Liberty of the person Elan-(l) No person shall be deprived of his life or personal liberty save in accordance with law. Art 4 of the Singapore Constitution (?Art which is set out below, should also be noted: Supremacy of Constitution 4. This Constitution is the supreme law of the Republic of Singapore and any law enacted by the Legislature after the commencement of this Constitution which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void. 3 Section 377A oi? the current Penal Code, the provision which is the subject of the Appellants? constitutional challenge, reads as follows: Lim Moog Sung 1! AG [2014} SEGA 53 Outrages on decency 377A. Any male person who, in public or private, commits, or shots 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. In this judgment, we shall be referring to 377A of not only the current Penal Code, but also earlier editions of that statute. As there are no substantial differences between the various versions of 377A, we shall use the generic term ?s to denote the version of 377A in force at the particular point in time being discussed. 4 We also note that there is a presumption of constitutionality inasmuch as a court will not find a statute or any provision(s) thereof (referred to hereafter as a ?statute? for short.) unconstitutional (see, for example, the decision of this court in Public Prosecutor Tow Chang Kong [1993] 2 489 (?Tow Clieng Kong at This is only logical as well as commonsensical as our legislature is presumed not to enact legislation which is inconsistent with the Singapore Constitution. However, an issue arises in these appeals as to whether or not this presumption applies to colonial legislation as well, given that 377A was ?rst introduced into our Penal Code in 1938, when Singapore was still a British colony. 5 Whilst the central issue in the present appeals (as set out above at can be stated simply, it is intensely controversial, and has elicited diametrically opposed (as well as, on occasion at least, intense and even emotional) responses in the extra-legal sphere, especially where Art12 is concerned. A great many arguments have been mounted by proponents on each side of the divide. It is no exaggeration to say that this court found itself in the midst of a cacophony of voices. Be that as it may, only one voice and Lim Meog Strong AG [.2014] SGCA 53 one voice alone is relevant in so far as the present appeals are concerned: it is the voice of the law, which represents the voice of objectivity. All other voices are irrelevant; indeed, they generate unnecessary heat (and distraction) rather than needful (and illuminating) light. Important general points (July legal argtonenrs are relevant 6 Before we set out the background facts and procedural history of the present appeals, it is necessary for us to ?rst highlight a few important general points. The first is that many of the difficulties encountered in the context of Art 9 and Art 12 relate to the fact that the court is often involved in a. delicate balancing process. More importantly, it often .faees a paradox which it must nevertheless negotiate. On the one hand, it must disregard extraalegal considerations that are uniquely within the purview of the legislature (here, the Singapore Parliament). This was in fact a central motif in the justly famous theory of adjudication proffered by the late Prof Ronald Dworkin (in an entire series of works, commencing with his seminal book, '1 taking Rights Seriously (Harvard University Press, 1978) (especially at ch Yet, where the constitutionality of a statute is challenged under Art 9 and/or Art 12, the court must have regard to extramlegal considerations in so far as they impacl the application of Art 9 and Art 12 themselves. The vexing difficulty particularly in the context of the present appeals is to discern where the line is to be drawn, bearing in mind that where the court does indeed have regard to extra?legal considerations, this must (in the nature of things) he by way of a very limited briefpremisea only on what is absolutely necessary to enable the court to apply the relevant legal principles relating to Art 9 and Art 1.2. Lim Melrg' Strong 9 AG [2014] SGCA 53 7 Drawing such a line in lire legal sand is imperative. ll? this is not done, the court will necessarily be sucked into and thereby descend into the political arena, which would in turn undermine (or even destroy) the very role which constitutes the mison d?eire t'or the court?s existence in the first place namely, to furnish an independent, nenrral and objective forum for deciding, on the basis of objective legal rules and principles, (inier cilia) what rights parties have in a given situation. That the court?s role as a neutral arbiter is utterly vital is underscored in a situation where (as is the case here) the arguments on either side ol? what is in substance a legislative divide are intensely controversial and the relevant empirical evidence is ambiguous at best. All that the court can and must be concerned with in these circumstances is whether any fundamental rights under the Singapore Clonsiirzrlion (such as those pursuant to Art 9 and Art '12) have indeed been violated. 8 In determining the constitutionality of a statute which is alleged to be inconsistent with Art 12 (or, for that matter, any other Article of the Singapore Constitution), the court?s main concern is to be careful not to trespass into extra-legal territory which legitimately belongs only to the legislature. Looked at in this light, the many extra-legal arguments on the constitutionality of 377A are irrelevan to the court's application of Art 12. We hasten to add that this does not mean that these arguments are wholly irrelevant in all contexts. They are appropriate to a legislative debate, but that is wholly beyond the remit of the court. The proponents of these arguments fail to see this because they overlook the vital distinction referred to above (at between legal principles and extradlcgal considerations. Hence, they proffer various extra?legal arguments as though these arguments are central to the court?s task, when they serve only to muddy an already difficult legal path Litn M?ertg Huang 1) AG SGCA 53 which the court is attempting its level best to negotiate. This is unfortunate, to say the least. Indeed, the difficulties are exacerbated by the fact that some of the extra-legal arguments might also have an overlay of emotional and/or other overtones, and, on this ground alone, are more suited (if at all) to a legislative (or even philosophical) but not a legal debate. What is legally relevant (and irrelevant) in the context of the present appeals 9 It Follows, afortiori, from the observations in the preceding paragraph that in deciding the present appeals, this court cannot and must not be drawn into the sphere of even broader (and, arguably, even more speculative) debate, in particular, on the possible legal as well as extra-legal consequences flowing from its decision on the constitutionality 377A. indeed, counsel for the appellants in CA 54l2013, Ms Deborah Barker SC (?Ms Barker"), was at pains to point out right at the outset of her clients? written ease (as well as in her oral submissions before this court) that her clients? appeal is not about other legal rights (such the right to same-sex marriage). There is, in fact, no necessary connection between any court decision on the constitutionality of 377A and any positive rights, the grant (or otherwise) of which is clearly a matter for the legislature and the legislature alone. The line referred to above between What is legitimately within the purview of the court and what is legitimately within the purview of the legislature applies, as noted at the outset of the present paragraph, in an afortiori manner in the present appeals. ll) it follows that in the present appeals, this court will take into account only those arguments which are legally relevant to the application of Art 9 and Art 12. All other arguments interesting though they might be ought to be canvassed in the appropriate Fora (whether of a legislative, academic or some other public (but nonvjudicial) nature). Lim .Meng Suang AG [2014] SGCA 53 11 It is also important to emphasise that it follows that nothing in this judgment impacts the freedom of a person or group ol~ persons to _?*eely espouse as well as practise his/its values within the boundaries of the law (such as, in the religious context, within the boundaries laid down by Art 15 of the Singapore Constitution and the Maintenance of Religious Harmony Act (Cap 167A, 200]. Rev Ed?. This is consistent with the multi-raeial, multi- cultural, multidlingual as well as multi?religious nature of Singapore society. This is not mere political rhetoric, but a real and practical framework that furnishes real and practical freedom iz'or each group and each individual to practise its/his values provided (it is important to reiterate) this is done within the parameters and boundaries laid drawn by the existing law of the land. This freedom cannot, however, extend to an insistence by a particular group or individual that its/his values be imposed on other groups or other individuals. 12 Given our approach of focusing only on the relevant legal arguments in the present appeals, might it he argued that this court is conducting itself like an ostrich whose head is buried in the sand inasmuch as it might be ignoring the need to achieve a substantively fair result in the two cases at hand'? This is, at ?rst blush, a rather powerful argument. However, there seems to us no reason why a substantivelyjair result cannot he arrived at by focusing only on the relevant. legal arguments. Indeed (and on the contrary), were this court to also consider extra-legal arguments that are within the purview of the Singapore Parliament, would that not be contrary to fairness in both a procedural as well as a substantive sense? It should also be noted that if it is thought that a substantively fair result can only he achieved by a eonsideratirm Qfestra?le gal arguments as well, then the Singapore Parliament can always remedy the situation in the appropriatefashion. However, it would Lim Meng Strong 1: AG [2014] SGCA 53 then he doing so in a legitimate manner. It bears repeating that this court cannot seek to achieve the same result as it does not have the legitimate jurisdiction to do so the legitimate jurisdiction lies, instead, with the Singapore Parliament. Background facts and procedural history 13 As we have already mentioned, the present appeals pertain to the constitutionality of 377A. The Appellants are essentially arguing that 377A violates Art 9 and/or Art l2. 14 The appellant in CA 125/2013, Tan Ling Hong was arrested on 9 March 2010 For engaging in oral sex with a male partner in the cubicle of a public toilet. Tan and the male partner were charged under 377A on 2 September 2010 and 1 September 2010 respectively. Tan ?led an application (by way of an originating summons to challenge the constitutionality of 377A on 24 September 2010. On 15 October 2010, the Prosecution substituted the 377A charges against Tan and his partner with charges under 294(a') of the current Penal Code for the commission of an obscene act in a public place. Tan and the Attorney-General, the respondent in the present appeals (?the Respondent"), proceeded to litigate over the issue of whether Tan had the requisite locus slandi to challenge the constitutionality of 377A. That culminated in the decision of this court in Tan Eng Hang Attorney? Cieneral [2012] 4 SLR 476 (?Tan Eng [long (Standing)?), delivered on 21 August 2012, where it was held that Tan did have the requisite ioens standi. 15 The appellants in CA 54/2013, Lim Suang and Kenneth Ghee Mun-Leon have been in a romantic and sexual relationship for the past 15 years. Together, they run an informal social Lim Meng Strong [2014'] SGCA 53 group for plus-sized gay men. Both men aver that they have been sexually attracted to men since young, and have experienced various Forms ol~ social discrimination against homosexual men. On 30 November 2012, over three months after the judgment in Ten Eng Hung (standing) was delivered, Lim and Chee filed an OS to challenge the constitutionality of 377A. 16 Tan?s substantive application was ?rst heard by a High Court judge on 18 January 2013. Lim and Chee?s substantive application was first heard by the same High Court judge (?the Judge?) on 7 February 2013. Judgments for these two substantive applications were released on, respectively, 2 October 2013 (reported as Tan Eng Hung Attorneynt'feneral [2013] 4 SLR 1059 (?Tan Eng Hang (substantive)")) and 9 April 2013 (reported as Lim Meng Strong and another Attorney-General [20131 3 SLR 111i (?Lim Meng Snang?)). In both judgments, the Judge held that 377A did not violate the Singapore Constitution. 17 Lim and Chee ?led their notice of appeal on 30 April 2013. On 15 July 2013, Lim and Chee sought, inter alia, leave to amend their OS to include new arguments centring on how 377A violated Art 9. Their application was dismissed by a High Court judge sitting as a single judge of the Court of Appeal. Lim and Chen then ?led Summons No 3664 of 2013 3664/2013?) on 17 July 2013, requesting a three-judge Court of Appeal to review that judge?s dismissal of their application. SUM 3664/2013 was heard on 2 August 2013, whereupon it was adjourned to be heard together with Lim and Chee?s substantive appeal (is, CA 54/2013). CA 54/2013 was set down to be heard on 14 October 2013. 18 In the meantime, Tan ?led an application on 14 August 2013 leave to intervene in CA 54/2013. This application for leave to intervene was 9 Lim MengSuong [2014] SGCA 53 subsequently withdrawn when it was heard on 5 September 2013. As mentioned above at the judgment for Tanis substantive application was released on 2 October 2013. A notice of appeal (assigned the number 125/2013") was quickly ?led on 3 October 2013, along with an application For, inter alto, CA 125/2013 to be expedited and heard together with CA 54/2013 on 14 October 2013. That application was heard on 10 October 2013, wherein this court ordered CA 54/2013 and CA 125/2013 to be heard together because they raised essentially the same issues of law. The hearing for CA 54/2013, originally scheduled for 14 October 2013, was vacated to allow counsel for Tan, Mr Ravi (?Mr Ravi"), to tile submissions. Summary of the arguments in the court below 19 Ms Barker?s arguments in the court below centred on how 377A violated Art 12. it was submitted that equal protection under Art 12 extended to protection From discrimination on the basis ol" sexual orientation. Secondly, it was said that 377A was so absurd, arbitrary and unreasonable that it could not be good law. '1?hirdly, it was argued that 377A Failed the two?step test for determining the constitutionality of a statute under Art '12 (?the ?reasonable classilication? test?) because it disclosed no intelligible differentia and the dill?crentia applied here no rational relation to the object of 377A. (Under the ?reasonable classification" test, which was enunciated in, inter alia, 211w Cheng Kong (CA), Nguyen Tuong Von Public Prosecutor [2005] 103 (?Nguyen Tnong Fun?) and Yong Vui Kong Public: Prosecutor and another matter [2010] 3 SLR 439 (?Yong 17m? Kong?), a statute that prescribes a differentiating measure will nonetheless be consistent with Art 12 if it is based on ?reasonable classi?cation"; is, if: the classi?cation prescribed by the statute is founded on an intelligible differentia which distinguishes persons within the de?ned group from persons outside the Lim Merzg Strong [2014] SGCA 53 group; and that differentia has a rational relation to the object sought to be achieved by the statute.) Lastly, Ms Barker submitted that 377A did not conform to trends in international jurisprudence, which militated against discrimination on the basis of sexual orientation. She therefore prayed for BWA to be struck down in mm (cf the prayers sought by Lim and Chee on appeal at para 347 at seq of their Appellants? Case, in which it is argued, as an alternative, that 377A should be read down by striking out the words ?or private? therein). 20 Mr 'Ravi?s arguments in the court below centred on how 377A was inconsistent with both Art 9 and Art 12. He argued that 377A was contrary to the fundamental rules of natural justice and was therefore not ?law? [or the purposes of Art in relation to Art 12, he contended that 377A was absurd, arbitrary and unreasonable, and that the differentia of males bore no rational relation to the object of the provision. 21 The Respondent essentially argued that 377A passed the ?reasonable classi?cation? test. The objectives of 377A, it submitted, comprised the preservation of public morality and the safeguarding of public health (it should be noted that this last-mentioned point was not pursued before this court). The non-inclusion of female homosexual conduct did not render 377A under- inelusive because such conduct was either less prevalent or pereeived to be less repugnant than male homosexual conduct. Liven if 377A were under- inclusive, the Respondent contended, legislative leeway ought to be given to our Parliament. Most importantly, it was submitted, there should be a strong presumption of constitutionality for laws passed by the legislature. ll Lim Affeng Strung [2014] SGCA 53 The decisions below The decision in Lim Meng Suang 22 The Judge commenced his decision in Lim Meng Strong by undertaking a historical inquiry into Art 12. Article 12 was found to be eonsangnine with equivalent provisions in the US Constitution, the Constitution of india and the Federal Constitution of Malaysia. Equal protection, the Judge held, was a guarantee of not merely procedural or administrative equality, but also substantive equality. Nevertheless, legislatures around the world had had to continually classify diverse groups and activities for different purposes; a legislature was entitled to pass laws that dealt with the problems stemming from the inherent inequality and differences pervasive in society. 23 The Judge proceeded to apply the ?reasonable classification" test to 377A. It was clear, he held, that the classi?cation prescribed by 377A was based on an intelligible differentia: there was little difficulty in determining who fell within and without the provision. The second-stage inquiry into whether the diflierentia was rationally related to the object of 377A was, however, fraught with difficulty. Detennining the purpose of legislation was not straightforward, and there were also problems with the extent of over or under-?classi?cation required before the court could find that a rational relation was absent. In addition, there was a danger of engaging in tautological reasoning. 24 The Judge was of the view that the purpose ol? 5377A was to be determined at the time it was ?rst introduced into Singapore?s Penal Code in 1938. That purpose, he lbund, had remained unchanged to the present day: ? t]he act of males engaging in grossly indecent acts with other males was to be criminalised? (see Lim Meng Strung at There was thus a ?complete 12 Lim Meng Strung AC- 4] SGCA 53 coincidence? (see Lim Meng Strong at [100]) between the differentia in relation to the classi?cation prescribed by 377A and the object of that provision; the ?reasonable classi?cation? test was clearly satisfied. Turning to the issue of" legitimacy of purpose, the Judge held that the purpose of 377A was legitimate because of the weight cl" historical practice and ?deep seated feelings? pertaining to procreation and family lineage (see Lim Meng Strung at The decision in. Tan Eng Hang (substantive) 25 The Judge commenced his judgment in Ten Eng Hung (substantive) with an examination of Art and held that the reference to ?law? therein had to include a reference to the fundamental rules of natural justice. He observed that there was a dearth of jurisprudence on the concept and scope of? those rules. Nevertheless, he noted two possible types of legislation that would not qualify as ?law? for the purposes ol~ Art namely: legislation aimed at securing the conviction of particular individuals; and legislation that was absurd or arbitrary. 26 After considering statements from pro- as well as anti?homosexual groups, medical and scientific bodies and court decisions, the Judge declined to ?nd that homosexuality was a natural and immutable attribute. This rendered moot the argument that 377A was an absurd law which was contrary to the fundamental rules of natural justice because it targeted a natural and immutable attribute of a person. The Judge was also not persuaded that 377A was unconstitutional because it was too vague and uncertain. 27 in so far as the constitutional challenge under Art 12 was concerned, the Judge held that the ?reasonable classification? test applied to all 13 Lim Affertg Strung AG [2014'] SGCA 53 constitutional challenges based on this Article. He did not adopt the approach taken in the foreign authorities cited to him because those authorities factored in legal and extraaleg'al social, economic, cultural and political considerations which were unique to their respective jurisdictions. The Judge also observed that 377A could not be said to have an unsound purpose merely because that purpose was to advance a certain allegedly controversial morality. Finally, the Judge ruled that there was a complete coincidence between the dil?ferentia embodied in 377A (via, male homosexuals or bisexual males who engage in acts ol~ gross indecency with another male within the meaning of the provision) and the purpose and object of the provision (via, making male homosexual conduct an ollience because such conduct was not desirable). The parties? respective cases on appeal CA 54/2013 28 Before this court, Ms Barker submitted (in relation to CA 54/2013) that Lim and Chee possessed the requisite locus standi to challenge the constitutionality of 377A for the following reasons: Ton Eng Hang (standing) made it clear that where a person who was a member of the group de?ned by a purportedly unconstitutional statute (re'lerred to hereafter as an ?impugned statute? where appropriate to the context) faced a real and credible ?nest of prosecution under that statute, this was suf?cient to give him locus standi to challenge the constitutionality of that statute under Art 12. - Lim and Chee were both sexually active male homosexuals falling within the group de?ned by 377A. They thus had the locus standi to challenge 377A as being 'violative of Art 12. 14 Lim M'ch Surmg t! [20 I ?ll SGCA 53 With regard to Art 9, given Lim and Chec?s that their personal rights under that Article had been. violated and that there was a real controversy between the parties, this sull?iecd to establish their (ocus stench? to challenge the constitutionality of 377A under that Article. 29 In terms of the substantive merits of CA 54(2013, Ms Barker argued that 377A violated Art 12(1). Section 377A was said to be arbitrary on its face as: it ran foul of the concept of constitutional supremacy wherein a State could not deprive minorities of their fundamental liberties simply because ol~ popular moral sentiment; and it criminaliscd acts that were legal for nonumale homosexuals. Section 377A, it was contended, also failed the ?reasonable classi?cation" test as the classi?cation prescribed by that provision was not based on an intelligible differentia; and even if the classi?cation could be said to be based on an intelligible di'l'l?ercntia, that difiz?ercntia bore no rational relation to the object of 377A. Section 377A, it was further submitted, also violated Art 12(2) of the Singapore Constitution (?Art because sexual orientation was a practically immutable aspect o1" person?s identity. 30 in relation to Art 9, Ms Barker argued that 377A violated Art The right to 1i lie and personal liberty set out in Art she submitted, should be given a purposive interpretation to include a limited right of privacy. Lite and personal liberty must, at their core, include a right of personal autonomy allowing a person to enjoy and express affection and love towards another human being. 31 The Respondent, on its part, originally submitted that le and Chee lacked the requisite locus Hawaii to challenge the constitutionality of 377A. 15 Lim Mertg Suc?mg' 1!le [2014] SGCA 53 In particular, it argued that a real controversy was required to establish standing and jurisdiction, and that such a controversy would only arise when the State took. action pursuant to the impugned statute in question. However, in a subsequent letter to Ms Barker dated 1 July 2014, the Respondent stated that it would not be pursuing its case on this particular point as it had not been raised before the .ludge in the proceedings below. 32 In so far as the substantive issues in CA 54/2013 were concerned, the Respondent argued that 377A did not violate Art 12(2). Article 12(2), the Respondent submitted, was exhaustive in terms ol? the prohibited grounds of discrimination set out therein, and was distinguishable from constitutional provisions in other jurisdictions which explicitly enumerated sex or sexual orientation as one ol~ the prohibited grounds of discrimination. it was further argued that: Section 377A did not violate Art 12(1). A single standard of review should be applied to determine the constitutionality of an impugned statute under Art 12(1), namely, the ?reasonable classi?cation? test. Applying that test, the classification prescribed by 377A was founded on an intelligible difl?erentia which bore a rational relation to the legislative purpose of the provision. The ?reasonable classi?cation? test did not, and ought not to, require substantive judicial review of the legislative purpose of 377A. In any case, the purpose of 377A was constitutionally pennissible. (13) Section 377A also did not violate Art In this regard, comparative jurisprudence was inapplicable. Reading Art 9(1) to entail a right to privacy was contrary to the weight of authority, as well as the 16 Lr?m Meng Strong AG [110 4] SGCA 53 history, text and structure of Art 9. In any case, 377A was ?law? for the purposes of Art CA 125/2013 33 In CA 125/2013, Mr Ravi made four arguments in relation to Art 12. First, he submitted that the applicable test for determining the constitutionality of an impugned statute under Art 12 was not confined to the ?reasonable classi?cation? test. Secondly, he contended that the classification prescribed by 377A was not based on an intelligible dit?t'erentia because 377A was vague and ?ldid] not apply differentia based on either gender, sexual orientation or [the] nature of [the] sexual act?. Thirdly, the object of 377A was, according to Mr Ravi, an expression of animus by the majority against a minority, and was therefore incompatible with the constitutional guarantee of individual fundamental freedoms against majoritarian oppression. it was argued that there was no rational relation between the purpose of 377A and the dit?lerentia embodied in that section. 34 In relation to Art 9, Mr Ravi argued that 377A was inconsistent with that Article for three reasons. First, 377A was impermissiny vague in the scope oi? the activity which it purported to prohibit, thereby creating not only doubt as to its effect, but also a substantial risk of perversity or arbitrariness in its application. Secondly, 377A was arbitrary inasmuch as the criminal penalty which it imposed served no rational purpose in theory or in practice. Thirdly, 377A was absurd in that it criminalised, without any logically defensible reason, a minority of citizens on the grounds of a core aspect of their identity which was either unchangeable or suppressible only at a great personal cost. 17 Lim Meng Strong [2014] SGCA 53 35 In response to Mr Ravi?s submissions, the Respondent made the following arguments with regard to Art 12. First, the established test for determining the constitutionality of an impugned statute under Art 12(1) only required the classification prescribed by the impugned statute to be founded on an intelligible differentia which bore a rational relation to the purpose and object of the statute. Secondly, the relevant classi?cation in relation to 377A was based on an intelligible differentia (viz, male homosexuals or bisexual males who engage in acts of gross indecency with another male within the meaning of the provision), and that differentia was rationally related to the purpose and object of the provision (viz, making male homosexual conduct an offence because such conduct was not desirable). 'l'hirdly, Art 12(1) did not contemplate judicial scrutiny of the legislative purpose of an impugned statute. Art 12(1) ?[did] not impose any blanket prohibition on classi?cations based on sex or sexual orientation, or ?immutable? characteristics, or on classi?cations that lwere] ?unrcasonable? or ?impermissible? [emphasis in original omitted]. 36 The Respondent?s submissions in relation to Art9 were as follows. liirst, Art 9(1) referred to ?the deprivation of life in the sense of the death penalty, and personal liberty in the sense of the liberty of the person and the freedom from unlawful incarceration or detention?. Secondly, 377A was ?law? for the purposes of Art 9(1) because it had a clear core of meaning and was not unconstitutionally vague. Thirdly, Art 9(1) did not protect a person?s sexual identity or orientation, regardless of whether or not that was an immutable aspect of a person?s identity. 18 Lim MengSuong AG [2014] SGCA 53 The issues before this court The preliminary issues 37 From the procedural history set out above, it can be seen that the following two preliminary issues were originally raised in CA 54l2013: Do Lim and Choc have the requisite locus standi to challenge the constitutionality of Should Lim and Chce be allowed to amend their OS to include new arguments eentring on how 377A violates Art 9? As noted above (at the Respondent indicated in its letter to Ms Barker dated 1 July 2014 that it was no longer pursuing the ?rst of the aforesaid preliminary issues in particular, because the locus slondi point had not been raised before the Judge in the proceedings below. By that same letter, the Respondent stated that it was also not objecting to Lim and Chee?s application for leave to amend their 03 to include new arguments centring on how 377A violated Art 9. Both of the above preliminary issues are therefore no longer live issues before this court. 38 We would add that, in any event, had it been necessary for us to decide SUM 3664/2013, we would have allowed the application. In their supporting af?davit for SUM 3664/2013, Lim and Chee averred that the constitutionality of 377A was a matter of public interest, and that the proposed amendment to their 08 would allow this court to consider the merits of all the arguments relating to whether or not 3 377A was unconstitutional and determine once and for all whether 377A violated Art 12 and/or Art 9. Lim and Chee further contended that there would be no prejudice to the Respondent il? the proposed amendment to their OS were allowed. 19 Lim Meng Huang AG [.2014] SGCA 53 39 The court has a wide discretion to allow an amendment of an US at any stage of the proceedings on such terms as to costs or otherwise as may be just (sec 020 5(1) read with 20 r7 of the Rules of Court (Cap 322, R5, 2014 Rev 13d?. In a similar vein (although not applicable in the present appeals), a party may introduce on appeal a new point not taken in the court below, but it must state this clearly in its case (sec 0 57 40 We are of the view that Lim and Chee?s proposed amendment to their OS would not cause the Respondent any prejudice which cannot be compensated in costs (see the decision ol? this court in Review Publishing Co and another Lee Hsien Long and another appear! [2010'] 1 SLR 52 (?Review Publishing Co?) at The proposed amendment would give symmetry to the present appeals and allow a broader spectrum of arguments to be aired on an important constitutional point in the Singapore context. he substantive issues 4] The present appeals raise several overlapping arguments about the constitutionality of 377A. These boil down to whether 377A violates the following provisions of the Singapore Constitution: (it) Art Art 12(1); and Art 12(2). We shall discuss each of these substantive issues in turn, beginning with the issue ol?whethcr 377A violates Art 20 Lz'm Meng Strung AG [2014] SGCA 53 Whether 377A violates Art 9(1) 42 Article 9, part of which was set out above at provides as Hollows: Liberty of the person person shall be deprived of his life or personal liberty save in accordance with law. (2) Where a complaint. is made to the High Court or any Judge thereof that a person is being unlawfully detained, the Court shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the Court and release him. Where a person is arrested, he shall be informed as soon as may be of the grounds of his arrest. and shall be allowed to consult and be defended by a legal practitioner of his choice. (4) Where a person is arrested and not released, he shall, without unreasonable delay, and in any case within 48 hours (excluding the time of any necessary journey), be produced before a Magistrate, in person or by way of video?conferencing link (or other similar technology) in accordance with law, and shall not be further detained in custody without the Magistrate?s authority. (5) Clauses and (4) shall not apply to an enemy alien or to any person arrested for contempt of Parliament pursuant: to a warrant. issued under the hand of the Speaker. (6) Nothing in this Article shall invalidate any law in force before the commencement of this Constitution which authorises the arrest and detention of any person in the interests of public safety, peace and good order; or relating to the misuse of drugs or intoxicating substances which authorises the arrest and detention ef any person for the purpose of treatment and rehabilitation, by reason. of such law being inconsistent with clauses (3) and (4), and, in particular, nothing in this Article shall affect the validity or operation of any such law before 10th March l978. 43 The arguments raised by Mr Ravi and by Ms Barker on Art 9 in the present appeals are different. Ms Barker argues that the right to life and 21 Lim Meng Strong AG [2014] 53 personal liberty under Art should include a limited right to privacy and personal autonomy allowing a person to enjoy and express affection and love towards another human being. Mr Ravi, on the other hand, contends that 377A is vague, arbitrary and absurdBarker?s arguments are concerned, our view is that the right to privacy and personal autonomy which she canvassed should not be read into the phrase ?life or personal liberty? in Art 9(1) for three reasons. 45 First, such an interpretation of Art 9(1) would be contrary to established Singapore jurisprudence. The phrase ?personal liberty? in Art 9(1) refers only to the personal liberty of a person from unlawful incarceration or detention (sec Ton Eng Hung (standing) at af?rming Lo Put Sang and others Memoirs It'apilev Dave and others (Horizon Partners Pte Ltd, intervener) and other oppenis [2003] 4 754). Although the phrase ?life? has not been authoritatively interpreted by the Singapore courts, it should be interpreted narrowly in accordance with the jurisprudence on ?personal liberty" and Art 9?s context and structure, which brings us to our next point. 46 Our second reason for rejecting Ms Barkefs arguments on Art 9 is that the narrow interpretation of Art 9(1) which we have just mentioned above at [45] is (as the Respondent has correctly argued) supported by the context and structure of Art 9 itself. Articles 9(2) to 9(4) provide various procedural safeguards in relation to the arrest and detention of a person. Article 9(2) gives expression to the common law prerogative writ of houses corpus; Art 9(3) provides for an arrested person?s right to counsel and the right to be informed of the grounds for his arrest; and Art 9(4) relates to the production of an arrested person before a. magistrate within 48 hours. Articles 9(5) and 9(6) 22 Lim rlrfeng Huang trAG [2014] SGCA 53 contain exceptions; to the rights guaranteed to an arrested person. Read in this context, it is clear that the phrase ?life or personal liberty? in Art 9(1) reliers only to a person?s lreedom liom an unlawful deprivation of life and unlawful detention or incarceration. 47 Thirdly, protection against unlawful detention is the particular focus of Art21 ol? the Indian Constitution, from which our Art9 is derived. India?s Art 2i states that person shall be deprived of his life or personal liberty except according to procedure established by law?. As the Respondent has argued (again, correctly, in our view), the framers of lndia?s Art 2i consciously rejected the wider formulation ?without due process of law? in the Fifth and Fourteenth Amendments to the US Constitution, and enacted additional provisions similar to Singapore?s Art 9(3) and Art 9(4) to protect India?s citizenry against unlawful detention. There is no indication that they intended to impute an expansive meaning into the phrase ?lite or personal liberty?. India?s Art 21 was the basis for the ?liberty of the person" provision in Art 5(1) ol~ the Malaysian Constitution, which was later adopted in Singapore as Art. 48 In a related vein, foreign cases that have conferred an expansive constitutional right to life and liberty should be approached with circumspeetion because they were decided in the context of their unique social, political and legal circumstances. For example, the Supreme Court ol~ India has taken an expansive view of the right to life to include an individualis right to health and medical care. This approach must be understood in the context of India?s social and economic conditions (see Yong Vui Kong at A similarly broad approach has been adopted in the US because of the due process clauses in the Fifth and Fourteenth Amendments to the US Constitution, which are materially different from our Art 90 23 Lim Merzg Strong AG [2014] SGCA 53 49 Indeed, it is significant that Ms Barker herself conceded that the private law relating to privacy was a developing one. It is clear that Lim and (and likewise, Tan in CA 125/2013) cannot obtain by the (constitutional) backdoor what they cannot obtain by the (private law) front door. indeed, that would be a wholly inappropriate utilisation of the existing body of constitutional law (which serves a quite different litnction). More importantly, as we have already noted above (at Lim and Chee base their Art 9(1) rights on a narrow conception of the right to privacy, viz, that the right to life and personal liberty under Art 9(1) should include a limited right to privacy and personal autonomy allowing a person to enjoy and express affection and love towards another human being. Once again, such a right ought, in our view, to be developed by way of the private law on privacy instead. Indeed, we also observe that the right claimed by Lim and Ghee, although of an apparently limited nature, is, in point of fact, not only vague and general, but also contains within itself (contradictorily) the seeds of an rmlirrtited right. Put simply, such a right could be interpreted to encompass as well as legalise all mamier of subjective expressions of love and affection, which could (in turn) embody content that may be wholly unacceptable from the perspective of broader societal policy. At this juncture, we are, of course, back to ?square one", so to speak, for this brings us back (in substance at least) to the issue of whether or not 377A ought to enforce broader societal morality. 50 We turn now to Mr Ravi?s arguments on the alleged unconstitutionality ofs 377A under Art 9. 51 First, we do not think the phrase ?act of gross indecency with another male person." in 377A is of such vagueness that would cause the provision to fall outside the classification ?law? for the purposes of Art The concept of indecency is not alien to Singapore legislation (see, for example, 24 Lim Along t?i'ucmg' [2014] SGCA 53 145(1) of the Women?s Charter (Cap 353, 2009 Rev Ed) and 7 of the Children and Young Persons Act (Cap 38, 2001 Rev and we do not think there is any objectionable degree of vagueness inherent within 377A itsell?. We would venture to suggest that 377A prohibits, at its core, sexual acts between males. The Judge?s views on the operation ol" 377A (in Ton Eng Hung (substantive) at [82] and [831) were tentative in nature not because the provision was vague, but because the matter before him did not involve a criminal charge under 377A. 52 Secondly, 377A is not arbitrary. Mr Ravi?s submissions on this point are not easily comprehensible, but they appear to suggest that there is no rational purpose for 377A. Mr Ravi asserted, without any legal substantiation whatsoever, that the purpose of 377A in signalling societal disapproval of grossly indecent acts between males was arbitrary. 53 Thirdly, 377A is not absurd. Mr Ravi argued that 377A was absurd because it eriminalised a minority of citizens based on a core aspect of their identity which was either unchangeable or suppressible only at a great personal cost. As noted by the Respondent, Mr Ravi?s argument here closely resembles Ms Barker?s argument that ?personal liberty" in Art 9(1) should be interpreted to include a limited right to privacy and personal autonomy. For the reasons given above, Mr Ravi?s argument in this particular guise must likewise be rejected. In so far as the supposed immutability of a person?s sexual orientation is concerned, the conflicting scienti?c views on this issue suggest that there is, at present, no de?nitive conclusion, and it may therefore be premature to express any conclusive views on it. Indeed, this is precisely one of the extra?legal arguments that is not within the remit of this court (see above at 25 Liz-n Meng Strong 1! AG [201511 SGCA 53 54 Let us turn now to the issue of whether 377A violates Art 12(1). Whether 377A violates Art 12(1) be relevant legal provisions 55 To begin our analysis of the constitutionality of 377A under Art 12(1), it would be appropriate to not only set out Art 12(1) again, but also reproduce the rest of Art 12 as well, the context ol~ Art 1.2 (in particular, Art 12(2)) is, as we shall see, very signi?cant. Article 12 reads as follows: Equal protection All persons are equal before the law and entitled to the equal protection of the law. Except as expressly authorised by this Constitution, there shall be no discrimination against citizens of Singapore on the ground Elly of religion, race, descent 53 place of birth in any la_w gr in the appointment to any office or employment under a public authority o_r in the administration of any law relating to the acquisition, holding or disposition of property gr: the establishing or carrying on of any trade, business, profession, vocation or employment. (3) This Article does not invalidate or prohibit ?w any provision regulating personal law; or any provision or practice restricting office or employment connected with the affairs of any religion, or of an institution managed by a group professing any religion, to persons professing that religion. [emphasis added in italics, underlined italics, bold italics and underlined bold italics] 56 As the constitutionality of 377A is the central issue in these appeals, we also set out this provision again, even though we have already done so at the outset of this judgment (see above at 26 Lim Meng?iuang [2014] SGCA 53 Outrages on decency 377A. Any male person who, in public or private, commits, or shots the commission of, or procurcs 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. The applicable constitutionality: the ?reasonable classification test The test articulated 57 The established test in Singapore for determining the constitutionality of a statute under Art 12 is the ?reasonable classification? test. This is clear from the relevant case law (see, for example, ()ng Ah (Simon and another Public Prosecutor [1979?1930] 710 (?Drug Ali Cliuan?) at ?law Chang Kong (CA) at Nguyen Thong Van at Yang Vui Kong at [109]; and Tan Eng [long (standing) at It should, however, be noted that the ?reasonable classi?cation" test is not even engaged if the impugned statute is not discriminatory in the ?rst place. in the words of Mohamed Azmi SCI in the Malaysian Supreme Court decision of Malaysian Bar Government of Malaysia [1987] 2 MM 165 (?Malaysian Bar?) at 170 (referred to in Tow [Thong Kong at The first question to be asked is, is the law discriminatory, and that the answer should then be if the law is not discriminatory, it is good law Indeed, the question set out in the above quotation has been referred to as the first stage of ?a three-stage inquiry? (see, for example, the Singapore High Court decision o1" 'l?aw Clieng' Kong Public Prosecutor [1993] 73 at that decision was reversed by this court in Taw (,?heng Kong (C24), but without any apparent comment on this particular point). Strictly speaking, however, the ?reasonable classi?cation? test, in our view, comprises only two closelyvrelated stages. 27 Lini Meng Slltill'lg AG 58 court in aw Chang Kong (CA), which, after referring to the above passage from Malaysian Bar, went on to cite (at Azmi observations in that The ?reasonable classification? test was articulated by, inter alia, this same case (via, Malaysian Bar) as follows (at 170): 59 Lord Diplock in the Privy Council decision of Orig Ali Charm (at [35] and Discriminatory law is good law if it is based on ?reasonable? or ?permissi?ole? classification, provided that the classification is founded on an intelligible differentia which distinguishes persons that are grouped together from others left out of the group; and [ii] the differentia has a rational relation to the object sought to be achieved by the law in question. The classification may be founded on different bases such as geographical, or according to objects or occupations and the like. What is necessary is that. there must be a nexus between the basis of classification and the object of the law in question. 'l'aw Chang Kong also cited (at [540 the following comments by with approval: 35 All criminal law involves the classification of individuals for the purposes of punishment, since it affects those individuals only in relation to whom there exists a. defined set of circumstances the conduct and, where relevant, the state of mind that constitute the ingredients of an offence. Equality before the tau: and equal protection of the law require that like should be compared with like. What Art 12(1) of the Constitution. assures to the individual is the right to equal treatment with other individuals in similar circumstances. It prohibits laws which require that some individuals within a single class should be treated by way of punishment more than. others; it does not forbid discrimination in punitive treatment between one class of individuals and another class in relation to which there is some difference in the circumstances of the offences that has been committed. 37 Provided that the factor which the Legislature adopts as constituting the dissimilarity in circumstances is not. purely arbitrary but bears a reasonable relation to the 28 [2014] socA 53 le Meng Sitting AG [2014] SGCA 53 social object of the law, there is no inconsistency with Art. 12(1) of the Constitution. [emphasis added; emphasis in original omitted] 60 Under the ?reasonable classi?cation? test, therefore, a statute which prescribes a differentiating measure will be consistent with Art 12(1) only il?: the classi?cation prescribed by the statute is Founded on an intelligible differentia; and that differentia bears a rational relation to the object sought to be achieved by the statute (see also Tan Eng Hang (standing) at The di?iealties with the ?reasonable classification test The true nature and function of the test The ?reasonable classi?cation" test is not without its dif?culties. This has been articulated in the legal literature (see, for example, Joseph Tussman lit acobus tenBroek, ?The Equal Protection of the Laws? (1949) 37 Cal Rev 341). Perhaps because of the perceived lack ol? viable alternative tests and the very thorny nature of the concept of equality itself (especially when it is to be applied in a practical context), the cases (at least in the Singapore context) continue to endorse (only) the ?reasonable classification? test as the test for determining the constitutionality of a statute under Art 12. The concept of equality is thorny, not least because whilst it is eminently desirable (in theory) to achieve equality, this (normative) ideal faces the (factual) reality that inequality (in all its various forms) is an inevitable part of daily life. How, then, is the law to ensure that there is a basic level qf'eqaality, applying, the principle of equality generally, and more importantly, in what situations would such a level ol~ equality be deemed to be legally mandated?? As we shall see in a moment, the ?reasonable classi?cation" test, whilst useful, does not really address the fundamental questions just posed (see also Peter Westen, ?The Empty idea of Equality? (1982) 95 Harv LRev 537). This is not 29 Lint Meng Suang AG [2014] SGCIA 53 surprising because (as we shall also see) the 1uery nature of the ?reasonable classification? test renders it incapable of furnishing the requisite (or complete) normative as well as analytical impetus (let alone the requisite criterion or criteria) to answer these questions. 62 However, it is also of the first importance to note, at this juncture, that this does not mean that the ?reasonable classification? test ought to be rejected out of hand. That would be to throw the baby out together with the bathwater. As we shall elaborate upon below, the ?reasonable classification? test is an important threshold test, without which any attempt to determine whether or not Art 12 has been contravened by an impugned statute cannot even take off the ground in the first place. We shall also see that if a particular statute fails to pass legal muster under this test, it would mean that that statute is so legally illogical ands/or incoherent that it would, ipso facto, be repugnant to any idea of legal equality to begin with. The reader would be forgiven for thinking that all this is rather general and abstract. Indeed, it is. However, it sets the stage for the more detailed analysis that follows. It would, in fact, be appropriate at this juncture to turn to an explanation of why the ?reasonable classification? test functions only as a threshold legal test. 63 It will be recalled (see above at, inter alie, [601) that the ?reasonable classification? test states that a statute which prescribes a differentiating measure will be consistent with Art 12(1) only if: the classification prescribed by the statute is founded on an intelligible differentia (referred to hereafter as either ?the ?rst limb? or ?Lirnb of the ?reasonable classification? test); and that differentia bears a rational relation to the purpose and obfect sought to be achieved by the statute (referred to hereafter as either ?the second limb? or ?Limb of the ?reasonable classification? test). It is our View that the underlying rationale of both the aforementioned 3t) Lint Mertg' Huang 1! AG [2014] SGCA 53 limbs of the ?reasonable classi?cation? test is not only logical, but also commonsensieal as well as self?evident. Let us elaborate. 64 In our view, whilst it is clear that both Limb and Limb must be satis?ed in order for the ?reasonable classification? test as a whole to be satis?ed, Limb operates prior to Limb inasmuch as if the classification concerned is not based on an intelligible di?erentia to begin with, then it is pointless For the court to ascertain whether Limb has been satisfied (ie, whether the differentia bears a rational relation to the purpose and object sought to be achieved by the statute in question). This is only logical and if there is no intelligible differentia to begin with, then there is no set oi? intelligible dillierentia in existence that can be compared with the purpose and object of the statute (which is the pith and marrow 65 When, however, would a statute fail to pass legal muster under the threshold legal criterion embodied within Limb The answer is that it would, in the nature ol? things, very seldom be the case. This is because the differentia concerned need not be perfect; it need only be ?intelligible?. 'l?his connotes (in turn) a relatively low threshold that ought to avoid any consideration of substantive moral, political and/or ethical issues because these issues are potentially (and in most instances, actually) controversial. We should note, parenthetically, that when we refer to ?controversy? with respect to moral, political and/or ethical issues, we are not necessarily rel?erring to anything sinister, malevolent or even insidious in nature because reasonable persons can reasonably disagree on a myriad of issues which arise in moral, political and/or ethical contexts. More importantly, it is no business of the courts or the law generally to engage in the resolution of such issues except to the extent necessary to resolve any legal issueth) at hand. It is not surprising, therefore, that the (legal) criterion centring on the need for an 31 Lim Mei-tg [2014] SGCA S3 intelligible differential under Limb is (as already mentioned) a relatively low threshold that only requires the differentia concerned to be based on intelligibility. In this regard, the Judge observed thus in Lira Meng' Sang (at The First Limb [ie, Limb (an requires that the classification prescribed by the impugned legislation must be based on art intelligible differentia. ?lntelligible? means something that may be understood or is capable of being apprehended by the intellect or understanding, as opposed to by the senses. ?Differentia? is used in the sense of a distinguishing mark or character, some attribute or feature by which one is distinguished from all others. Scientifically, one talks of an attribute by which a species is distinguished from all other species of the same genus. 66 We agree with the Judge?s observations. They may appear value- neutral, but that is precisely what, in our view, was intended by the criterion of intelligible differentia to begin with. Value-neutrality is not the same as redundancy or an absence of functionality. As alluded to earlier, the ?reasonable classi?cation" test in general and its component limbs in particular are only intended to (and, in the nature of things, can only) serve a minimal threshold function of requiring logic and coherence in the statute concerned, without which the court cannot meaningfully proceed in any event to determine whether that statute violates Art 12. 67 In the context ol? Limb what this means is that the differentia embodied in the impugned statute must not only identify a clear distinguishing mark or character, but must also be intelligible (as opposed to illogical andlor incoherent). In this regard, we would go a little further than the Judge, although we think that our view is at least implicit within his observations in any event. in particular, we are of the view that a differentia which is capable of being understood or which ?is capable of being apprehended by the intellect or understanding" (sec Lira Moog Suiting at may nevertheless still be 32 Lint Meng Strong [2014] SGCA 53 unintelligible to the extent that it is so unreasonable as to be illogical anal/or incoherent. We recognise that this last-mentioned proposition may open the doors to potential abuse, so we include the caveat that the illogicality andlor incoherence must be of an extreme nature. It must be so extreme that no reasonable person would ever contemplate the differentia concerned as being functional as intelligible dil?l?ercntia. Put simply, the illogicality and/or incoherence ol? the dil'l'erentia concerned must be such that there can be no reasonable dispute (let alone controversy) as to that fact from a moral, political and/or ethical point of view (or, for that matter, any other point of view). Where such illogicality andlor incoherence is present, there is no point even beginning to talk about the concept of equality (let alone whether there has been a violation of the right to equality contrary to Art 12) because no reasonable classi?cation even exists in the first place. in such circumstances, Limb is not engaged at all. More generally, there would be no way in which the statute concerned can possibly pass legal muster in so Far as the concept of equality embodied within Art 12 is concerned. 68 Assuming, however, that there is an intelligible differentia in place such that Limb of the ?reasonable classi?cation? test is in [bet satis?ed, it must ?rrtlier be demonstrated that Limb has been satislicd as well in order For the ?reasonable classi?cation? test as a whole to be satislicd. To recapitulate, where Limb is concerned, it must be demonstrated that the differentia identi?ed pursuant to Limb bears a rational relation to the purpose and object sought to be achieved by the statute in question. It is clear that a prerequisite for the satisfaction of Limb is that the purpose and object of the statute in question must?rst lie determined or ascertained. Once that purpose and object has been determined or ascertained, a rational relation between the difl?etentia identi?ed pursuant to Limb and that purpose and 33 Lim Meng Sitting AG [2014] SGCA 53 object must then be demonstrated in order for Limb to be satis?ed. Again, this is both logical as well eommonsensical: if there is no rational relation between the differentia identi?ed pursuant to Limb and the purpose and object of the statute concerned, there is, ex hypothesi, no logical andior coherent basis upon which to hold that the statute is based on reasonable classi?cation to begin with. Although the absence of such a rational relation can take many forms, it seems to us that the requisite rational relation will more often than not be found. This is because (as the Judge held in Lin: Meng Strong at there is no need for perfect relation or ?complete coincidence" [emphasis added] between the differentia in question and the purpose and object of the statute concerned. As the ?reasonable classification" test itself prescribes, the relation need only be a rational one. That having been said, this does not necessarily mean that a rational relation will always be found to exist by the courts. For example, it? there is a clear disconnect between the purpose and object of the impugned statute on the one hand and the relevant differentia on the other, the ?reasonable classi?cation? test will be held not to have been satisfied. But, all this is easily stated in the abstract. What will determine the final outcome in any given case will be the speci?c facts as well as context before the court. We should add, at this juncture, that ascertaining the purpose and object ol~ a statute will not always be easy. Indeed, as we shall see later in this judgment (below at ascertaining the purpose and object of 377A is both an extremely complex as well as extremely dif?cult exercise. 69 As is the position with regard to Limb the key inquiry under Limb does not really address the concept of equality as such. Its focus, as explained above, is primarily logical as well as eommonsensical. Put simply, if there is no rational relation between the relevant differentia on the one hand 34 hfeng Strong AG [20 I SGCA 53 and the purpose and object of the statute concerned on the other, there is (again) no point even beginning to talk about the concept ol? equality (let alone whether there has been a violation of the right to equality contrary to Art 12') because no reasonable classi?cation even exists in the ?rst place. Furthermore, if Limb is not satis?ed, it would also follow that the statute in question cannot possibly satisfy the concept of equality embodied within Art 12 in any event a result that will likewise obtain il" Limb is not satis?ed (as noted above at [64] and 70 It should be noted that the threshold nature of the ?reasonable classi?cation? test helps to balance the need to accord as much legislative leeway as possible to the legislature against the need to ensure that laws which are patently illogical andhir incoherent do not pass legal muster. In a related vein, this test simultaneously prevents the courts from becoming ?mini- legislatures? point which is dealt with in more detail below, especially at 71 As mentioned above at the fact that the ?reasonable classi?cation? test is a threshold test which does not in itself furnish the requisite criteria for determining whether the right to equality under Art 12 has been violated does not mean that this test ought therefore to be dispensed with. Indeed, it is quite the opposite. As we pointed out earlier (at [62] above), the ?reasonable classification? test serves a minimal but vim! threshold function of requiring logic and coherence in the statute concerned, without which the court cannot meaningfully proceed to determine whether that statute contravenes Art 12. Put simply, there is no point analysing the statute concerned from the perspective of the concept of equality il~ the ?reasonable classi?cation? test. is not. even satis?ed in the ?rst place. Looked at in this It ht, the ?reasonable class-i motion test is no means a mere! mechanical 8 . 35 Lim Meag' Huang AG [2014] SGCA 53 or purely procedural rest. It. does, inject, contain substantive element's. That having been said, it is important to reiterate at the same time that the ?reasonable elasai?eation" test in itself does not really aid the court in ascertaining whether or not the concept of equality under Art 12(1) has been violated. Let us elaborate. (2) The ?reasonable classi?cation? test in relation to the concept of equality in Art 12(1) 72 It will be recalled that Art 12(1) reads as follows: Equal protection Ila-{1) All persons are equal before the law Ea entitled to the equal protection of the law. [emphasis added in bold italics and underlined bold italics] 73 it will be seen that Art 12(1) comprises two main limbs. 'l?he?rsr states that persons are equal before the law? [emphasis added]. He reasonable person would seriously attempt to eontrovert this particular statement as it is just and fair from both a logical as well as an intuitive point of view. However, what precisely does it mean when we state that ?[a]ll persons are equal belbre the law?? In the ?rst place, what does the phrase ?the law? in this particular limb of Art 12(1) mean? Does it refer to the law in general? if so, then this particular limb is no more than a declaratory statement that is, as just alluded to, Alternatively, does the phrase ?the law? refer speci?cally to the statute that is sought to be impugned as being inconsistent with Art 12(1) and, hence, unconstitutional pursuant to In the context of the present appeals, ?the law? would then rel?er to 377A. But, even if that be the ease, this limb of Art 12(1) does not really assist us in so far as the concept of equality is concerned on nt'hal legal basis and on what legal criterion (or 36 Lim M'Gttg Huang [2014] soon 53 criteria) can the court find that a particular person or group of persons has not been accorded equality of treatment in relation to Presumably, all those who fall within the scope of 377A would be considered to be ?equal? before that particular provision, but that would hardly be an argument which the Appellants would want to rely upon. If the Appellants seek to argue that they are not being accorded equal treatment because 377A applies only to them (is, Lim, Ghee and Tan) and no other male homosexuals, that would be an entirely separate and distinct argument which would require a separate criterion (or set of criteria) for determining whether the Appellants? Art 12(1) rights have indeed been violated. 74 What, then, about the second limb of Art 12(1), which states that ?[a]ll persons are entitled to the equal protection of the law? [emphasis added]? As in the ease of the first limb, what does ?the law? in this second limb refer to? If it refers to the law in general, then, likewise as in the ease of the first limb, the second limb would be no more than a declaratory statement which is, by its very nature, self?evident. Alternatively, if the phrase ?the law" in the second limb of Art 12(1) refers to the impugned statute (in the present appeals, 377A), this would be of no assistance to the Appellants since they are not seeking equal protection under 377A. indeed, what they desire is quite dif?rent, in that what they are seeking is protection/ram prosecution under 377A. 75 It should be noted that Ms Barker, in her oral submissions before this court, was 1? the view that the two ai'brementioncd limbs of Art 12(1) ought to be read as an integrated whole. We agree with this to the extent that the second limb follows from the first. However, this does not preclude (for the purposes of analytical clarity) the approach to the two limbs which has just been set out. 37 Lim Meng Strong [30 4,1 SGCA 53 Is there an additional test 76 We pause at this juncture to deal with the Judge?s observation in Lim Meng Huang that a statute can still be rendered unconstitutional even if it. satis?es the ?reasonable classi?cation? test, provided it can be demonstrated that the object of that statute is illegitimate (at Not surprisingly, the Appellants have endorsed this particular proposition. We also note that counsel for the Respondent, Mr Acdit Abdullah SC (?Mr Abdulla whilst not purporting to endorse this proposition in toto, indicated that he was willing (but only by way of a [allback argument) to admit to a test of unreasonableness along the lines embodied in this court?s decision in Yong Var? Kong (at and the seminal English Court of Appeal decision of Associated Provincial Picture Houses, Limited Wednesbmy Corporation [1948] 1 KB 223 (?Wednesbary?) (of Lirn Meng Huang at We note, parenthetically, that there was no real elaboration by Mr Abdullah with regard to the Respondent?s reliance on Yong Vai Kong in this connection. In so Far as the test of unreasonableness in li?rdnesbarv is concerned, Lord Greene MR (with whom Somcrvell LJ and Singleton agreed) described the requisite level of unreasonableness as involving (in the context of administrative law) a decision or conclusion that was ?so unreasonable that no reasonable [public] authority could ever have come to it" (see Wednesbmy at 230 and 234'). We would, with respect, differ from all these aforementioned views. Let us elaborate. 77 It is important to commence our analysis in this regard by referring to a ftmdamental proposition that constitutes part of the wider concept of the separation of powers. Put simply, the courts are separate and distinet?'orn the legislature. More speci?cally, whilst the courts do ?make? law, this is only permissible in the context l? the interpretation l? statutes and the development 38 Lim Mung Huang AG [2014] SGCA 53 of the principles of common law and equity. It is impermissible for the courts to anrogate to themselves legislative powers to become, in other words, ?mini?legislatures". This must necessarily be the case because the courts have no mandate whatsoever to create or amend laws in a manner which permits recourse to extra?legal policy factors as well as considerations. The jurisdiction as well as the power to do so lie exclusively within the sphere of the legislature. indeed, the power of the legislature to enact and amend laws is governed by quite a different procedure. Hence, the duty of a court is to interpret statutes enacted by the legislature; it cannot amend or modijfy statutes based on its own personal preference or fiat as that would be an obvious (and unacceptable) usurpation l" the legislative function. 78 The legislative powers which we have just discussed are different from the court?s role in developing the law a task which it 'l'requently undertakes. As already alluded to above, the courts do indeed develop the principles of common law and equity. Indeed, as Lord Reid famously observed in an extra- judicial leeture (sec ?The Judge As Law Maker? (1972-4973) 12 (NS) 22 (?The Judge As Low Maker?) at 22): There was a time when it was thought almost indecent to suggest that judges make law they only declare it. Those with a taste for fairy tales seem to have thought that in some Aladdin?s cave there is hidden the Common Law in all its splendour and that on a judge?s appointment there descends on him knowledge of the magic words Open Sesame. Bad decisions are given when the judge has muddled the pass word and the wrong door opens. But we do not believe in fairy tales any more. 79 The process of such development is, however, quite different from the process of legislative enactment or amendment of legislation, and is effected through development ofcase law. In this regard, it should he noted that the legislature can reject existing principles of common law and equity. Put 39 Lint Meng Saartg 11 AG [2014] SEC-A 53 simply, the legislature can enact a statute overruling an existing principle of common law or equity if the legislature thinks it fit to do so. However, absent such a situation, the courts can and do develop the principles of common law and equity. 80 A paradigm exan?lplc of this may be seen in the law of negligence, commencing with the seminal House of Lords decision of ?Alister (or Donoglme) (Pauper) Stevenson [1932] AC 562 (more commonly cited as ?Donoglzue Stevenson? and referred to hereafter as ?Donoghae?). This decision effected a sea change in this foundational area of the law of tort (see generally the valuable background prior to this decision fumishcd in Edward II Levi, An Introduction to Legal Reasoning (University of Chicago Press, 1949), as well as equally valuable background pertaining to the decision itself in Geoffrey Lewis, LordAtkin (Butterworths, 1933; reprinted, l-lart Publishing, 1999) at pp 51?67;, see also Matthew Chapman, The Snail and the Ginger Beer: The Singular Case of Donoghae Stevenson (Wildy, Simmonds lie I-lill Publishing, 2009) and The Jaridieal Review Donaglme Stevenson: The Paisley li?apers (Special Edition) (2013)). Indeed, the law of negligence has developed even further since Donoglnte. For example, the Ilousc of Lords extended the law of negligence to cover liability for negligent misstatements in its path-breaking decision in l-ledle I Byrne (it. Co Heller (ii: Partners Lta? [1964] AC 465 (?Medley Byrne"). in this regard, and several years prior to the decision of the House in Hedley Byrne, Denning LJ (as he then was) adopted precisely the legal position which was ultimately endorsed in Hadley littrne itself, but found himself in a minority in the English Court of Appeal decision of Candler Crane, Christmas cit Co [1951] 2 KB 164 (?Candler Crane"). Indeed, Denning LJ significantly referred in an extra-legal contest to his powerful dissenting judgment in Candler Crane as his ?most important 40 Lim Meng Strong AG [20141 SGCA 53 judgment" (see Lord Demting?s ?Foreword? to the inaugural volume ol? the Denning Law Journal ([l986'l Denning LJ 1 at in the course of delivering his judgment in that case, Denning LJ drew a distinction (at 178) between ?timorous souls who were fearful of allowing a new cause cl? action" and ?bold spirits who were ready to allow it Iris, a new cause of actionl if justice so required". Indeed, the ultimate vindication by the House ol~ Lords in Hedley Byrne of Denning LTs views in Candler Crane bears ample testimony to the virtues of the courts being ?bold spirits". And something of that spirit can be seen in the course ol? the development of the law of negligence in countries where English law has been transplanted as witnessed, for example, in the decision ol? this court in Spandeck Engineering Pte Defence Science Technology Agency [2007] 4 100 (see also generally the valuable survey well as analysis in David Tan 8c Goh Yihan, ?The Promise of Universality The Spandeck Fonnulation Half a Decade on? (2013) 25 510). 81 The bricfest 1? summaries of the development of the law of negligence set out in the preceding paragraph is but one illustration not only of the nature of the courts? development oi" the principles of common law and equity, but also (and more importantly in the context of the present appeals) of the fact that the courts will not hesitate to develop the law in appropriate circumstances, taking on the nature of ?bold spirits? in those circumstances (indeed, Ms Barker herself supported this particular point by citing decisions ol? this court on the development of the common law in her 'l'urther written reply submissions in an attempt to persuade this court to adopt a more activist approach towards the interpretation of Art 12(1); the decisions which she cited in this regard were Lair Siew Kim 1! Yea Ciaan (Skye Terence anal manner 2008] 2 108 and Chandran a/l Suboiah Dockers Marine Pie 41 le Meng Suang [2014] SGCA 53 (Chvners of the Ship or Vessel ?Tasman Mariner?, third party) 2009] 3 995). However, in other situations, the courts will necessarily be more circumspect. This is especially the case with respect to matters which are uniquely within the sphere of the legislature. Whilst, for example, a court will not hesitate to interpret a statute, it will not indeed. cannot amend or inoclifjt a statute based on its own personal preference or fiat (or even its View of what it thinks the relevant extra-legal considerations should be) because (as already noted above at that. would be an obvious and unacceptable usurpation of the legislative function. 82 Here, we come to the crux of the issue at hand. To permit the court the power over and above its power of scrutinising legislation pursuant to the ?reasonable classification? test -- to declare a statute inconsistent with Art 12(1) (and, therefore, unconstitutional under Art 4) because the object of that statute is illegitimate would precisely be to confer on the court a licence to usurp the legislative ?tnction in the course of becoming (or at least acting like) a ?mini-legislature Put another way, only the legislature has the power to review its own legislation. and amend legislation accordingly if it is of the view that this is necessary. The courts, in contrast, have no such power nor ought they to have such power. 83 Indeed, to argue, as the Appellants seemed to do, that the court has the duty to declare a statute unconstitutional if its object is ?illegitimate? does not explain the legal basis upon which the court can find the object to be illegitimate in the first place. if the argument is that the object of the statute is illegitimate because that object is unconstitutional, this would lead to a circularity which, ex hypothesi, lacks the requisite explanatory as well as nonnative power. The courts are called upon and ought to be ?held spirits?, but only on appropriate occasions. Put simply, they cannot claim to 42 le Meng Sitting AG [2014] SGCA 53 act as ?bold spirits? when they are inflict acting outside their proper sphere of jurisdiction. This point will become particularly important in the analysis below especially in the Face of the Appellants? calls to this court to update the law on 377A based purely on extraelegal arguments which are appropriate only in the legislative sphere. Put simply but clearly, to permit the court to effectively amend (as opposed to interpret) the law in this area would not only entail the court acting beyond its jurisdiction, but also permit the Appellants to obtain by the (judicial) backdoor what they ought to have sought to obtain by the (legislative) front door. 84 That having been said, an important quali?cation is in order at this juncture. The important quali?cation is this: to the extent that there are serious ?aws with regard to the intelligibility ol? the differentia embodied in a statute and/or a clear disconnect between that difletentia and the purpose and object of the statute, the court will hold that the statute does not pass legal muster under Art 12(1). This may be viewed, in substance at least, as introducing a limited element of illegitimacy which is embodied in the ?reasonable classification? test. However, it is vitally important to note that this element of illegitimacy is not an additional test over and above the ?reasonable classification? test; it is, instead, no more than an application of the ?reasonable classification test. The only legal test for the purposes of Art 12(1) is the ?reasonable classi?cation? test, and it is important to note that in applying this test, the court would be applying a legal test that is not based on extra-legal considerations, but rather, one that is clearly within its remit as a court oflaw (as opposed to acting as ifit were a ?mini-legislature 85 Put simply, in determining the constitutionality of an impugned statute under Art 12(1), there are no legal standards which can guide the court in ascertaining whether the object ol? that statute is illegitimate. In the nature of 43 Lim Aleng tS'uong AG [2014'] SGCA 53 things, any purported standards would be extra-legal in nature. This brings us back to the point just made that the legislature is the appropriate forum to canvass the issue of whether or not the object of a particular statute is illegitimate because the extra-legal standards pertinent to such an issue would be quintessentially within the sphere oflegislative review. 86 At this juncture, we note (as mentioned above at that Mr Abdullah was prepared (albeit only by way of a fallback position) to endorse the test in Wednesbury. This particular test is premised on the concept of nnreosonobleness. Whilst it does constitute a legal standard, it is not, in our view, an appropriate legal standard in the context of a challenge to the constitutionality of a statute. More importantly, even if the concept of nin'easonableness laid down in were applicable, it would not aid this court inasmuch as the present constitutional challenge to s377A is premised on extraplegol arguments which, as we have already noted, are quintessentially within the purview oft/1e legislature. It also bears reiterating what has just been alluded to above at [84] sis, that in situations of extreme illogieolity and/or incoherence, the statute concerned would probably not be able to pass legal muster under one or both limbs of the ?reasonable classification? test in any event. Indeed, in such situations, the statute might possibly infringe other Articles of the Singapore Constitution as well (of also [aim Meng Strong at [l We note that Ms Barker cited Report oftlte Constitutional Commission 1966 (27 August 1966) (?the 1966 Report"), the report of the constitutional commission chaired by the then Chief Justice Wee Chong Jin, to buttress her argument that Art 12(l) ought to be invoked by this court (via a declaration of 377A?s unconstitutionality) in order to ensure that the Appellants were accorded equality before the law. in particular, Ms Barker referred to para 32 44 Li?: Meng Strong AG [2014] SGCA 53 01? the 1966 Report, which dealt with Art 8 of the then Constitution of Malaysia (the equivalent of Singapore?s present Art 12) soul which stated as follows: We deal now with Article 8 of the present Constitution of Malaysia. Having, regard it) our Terms of Reference, our recommendations on the farm and substance that this Article should take and contain will constitute the very core of our views on the whole problem of minority rights in Singapore. In the ?rst place we deem. it essential that the principle of equality before the law and equal protection of the law for all persons should be clearly and categorically laid down. Secondly, it should be no less clearly and categorically laid down that there shall be discriminm in any law or in the e?'ect of any law, except as expressly authorised by the Constitution, against any citizen on the ground o_nly of ?og, Elm lilacs of birth or descent. Lastly, it should also be clearly and categorically laid down that there shall be n_o ilSC?Min?M in the administration of any law, except as expressly authorised by the Constitution, against any person on the ground only of Lee, yeli ion, place of, birth or descent. [emphasis added in italics, bold italics and underlined bold italics] 88 Ms Barker relied on all the italicised words set out in the above quotation to support the argument mentioned in the preceding paragraph. in our View, the sentence ?In the ?rst place we deem it essential that the principle of equality beliore the law and equal protection ol" the law for all persons should be clearly and categorically laid down? is but a paraphrase of the language of Art 12(1) itself, and to that extent, is clearly declaratory and aspirational in nature (see also below at For the reasons explained above (at this particular sentence (like the words in Art 12( does not really set out any concrete legal principles which can guide the courts, such as the ?reasonable classi?cation" test. Indeed, the ?reasonable classi?cation? test itself was fonnulated by the courts, and it does (as we have explained above) furnish the courts with particular legal principles that give effect (albeit not fully) to the concept of equality embodied in Art 12(1). Signi?cantly, the last 45 Litn Meng Suang 1! [2014] SGCA 53 two sentences of para 32 of the 1966 Report, which correspond to Art 12(2), refer specifically to the concept of ?discrimination? [emphasis added], albeit in the context of the prescription of discrimination on specific grounds (as opposed to a general prescription of discrimination as such). indeed, that the specific and applicable principles relating to the right to equality under the Singapore Constitution are located in Art 12(2) rather than Art 12(1) -- is con?rmed by the following extract from the very next paragraph of the 1966 Report (viz, para 33): We consider, having regard to the multi-vracial, multicultural, multi-lingual and rnulti?religious composition of the population of Singapore and of its citizens, that the recommendations we have outlined in the preceding paragraph will not. only form an. impregnable shield against racial communalism and religious bigotry as well as an effective weapon to wipe away any fears the minorities may harbour concerning discriminatory treatment but will also lay a ?rm. and lasting foundation on which. to build a democratic, equal and just multi?racial society in Singapore. [emphasis added in italics and bold italics] Read in its proper context, the reference to ?recommendations? in the extract just quoted is clearly a reference to the principles embodied in Art. 12(2), and not Art 12(1). 89 This would be an appropriate point to turn to a consideration oi.? the legal relationship between Art 12(1) and Art 12(2). The legal relationship benveen Art 12(1) and Art 12(2) Art 12(1) 12(2) read inter se 90 To recapitulate, the analysis proffered above at is that Art 12(1) appears to be more of a declaratory (as well as aspirational) statement of principles, as opposed to a set of speci?c legal criteria as such. This is, perhaps, not surprising as Art 12(1) is framed at a very general level. 46 Lim Meng Huang 1! AG [2014] SGCA 53 Indeed, as alluded to in the analysis proffered above, the two limbs of Art 12(1) are both logically and intuitively attractive, and their content would not be something that a reasonable and fair-minded person would seriously controvert. However, it is perhaps precisely because Art l2(1) is framed at such a general level that it does not furnish the Speci?c legal criteria which can guide the courts in determining, in speci?c fact situations, whether a particular statute violates Art 12. That having been said, it bears reiterating that any statute mas! nevertheless pass (threshold) muster under the "reasonable classi?cation rest before it can be found to be consistent with Art 12. More importantly, we emphasise that what we have just said (about the lack of specific legal criteria in Art 12(1)) does not mean that there are no speci?c legal criteria which can guide the court in speci?c lact situations. On the contrary, in to the ?reasonable classificarimi? rest, Art 12(2) furnishes specific as well as concrete legal criteria which ensure that any statute which is discriminatory within ihe scope and meaning ofrlri 12(2) (and, hence, contravenes the concept of equality embodied in Art 12) will, pursuant to Art 4, be void to the extent of such contravention and inconsistency. a practical level, parties are free to challenge the constitutionality of a statute under Art 12(1) or Art 12(2) or, indeed, under both provisions (as was the case here). The court?s decision on the constitutionality (or otherwise) of the impugned statute would ultimately depend on the particular facts and circumstances of the case. 91 Article 12(2) (also set out earlier at [55] above) reads as follows: Except as expressly authorised by this Constitution, there shall be no ??c?mi??tipj against citizens of Singapore on. the ground ggly of religion, race, descent o_r place of birth in any la_w g_r in the appointment to any oj?ce or employment under a public authority 9; in the administration of any law relating to the acquisition, holding or disposition of property the establishing or 47 Lim lifting Huang AG [2014.] SGCA 53 carrying on. of any trade, business, profession, vacation or employment. [emphasis added in italics, underlined italics, bold italics and underlined bold italics] 92 It can immediately be seen that Art 12(2) furnishes specific iegai criteria as to what constitutes discrimination and is there ore prohibited from a constitutional perspective. In many ways, the approach adopted in Art 12(2) is more structured and principled compared to the approach under open-ended constitutional provisions in some other jurisdictions that place the courts in the uncnviable position of being (in effect) ?minHegislt-ttures" of sorts. It is also noteworthy (indeed, crucial, in so far as the present appeals are concerned) that within the prohibited grounds of discrimination delineated in Art 12(2), there is no reference to ?sex ?sexual orientation? or ?gender?. This is not surprising. Not all Constitutions will be exactly the same. Each Constitution is supposed to re?ect the social mores of the society which it emanates from. It is true that such social mores can and often will change over time. However, there is nothing precluding a legislature from amending the Constitution accordingly. in the Singapore context, the provision governing amendment of the Singapore Constitution is Art which states: A Bill seeking to amend any provision in this Constitution shall not be passed by Parliament unless it has been supported on Second and Third Readings by the votes of not less than twodthirds of the total number of the elected Members of Parliament. An amendment of the Singapore Constitution is obviously beyond the remit of our courts. it is nevertheless important to emphasise that the possibility of constitutional amendment just referred to fumishes our Parliament with the necessary ?exibility to ensure that the Singapore Constitution re?ects the prevailing social mores as wet! as aspirations of Singapore society. 43 Lim Meng Huang AG [2014] SGCA 53 93 Before proceeding to consider some other constitutional provisions in a comparative context, we ought to brie?y address a further argument by Ms Barker based on the fact that Art 12(2) applies only to citizens of Singapore. She argued that in contrast, Art 12(1) was framed more broadly to apply to ?[ajll persons? [emphasis added], and hence (citing the paragraph of the 1966 Report quoted above at Art 12(1) ought to be given an expansive interpretation that goes beyond the ?reasonable classi?cation? test so as to accord equal protection to all persons. However, that. brings us back full circle to the dif?culties outlined above (especially at to the effect that the courts would then become ?minialcgislatures??. Indeed, the argument proffered by Ms Barker is a double-edged legal sword inasmuch as if Art 12(1) could be construed and applied in the broad manner which she suggested, why, then, was it necessary to promulgate Art 12(2)? After all, taking the broad approach canvassed by Ms Barker, every prohibited ground of discrimination referred to in Art 12(2) would necessarily be subsumed under Art 12(1) and Art 12(2) would then be rendered redundant. In any event, nothing in this particular argument by Ms Barker impacts the respective cases ofnot only her clients but also Mr Ravi ?s client inasmuch as all the Appellants are citizens of Singapore. Be that as it may, it also bears emphasising that even though we do not accept Ms Becker?s argument that an expansive interpretation should be given to Art 12(1), this does not mean that non- citiaens are without any rights. They have rights under Art 12(1), in that they can avail themselves of the ?reasonable classification? test. Indeed, it can be said that this is the general legal position in any event. It should also be borne in mind that non-citizens are also entitled to other specific fundamental rights under the Singapore Constitution, some of which are set out in the next paragraph. 49 Lim Men .S?aang AG [2014] SGCA 53 94 It is also not in principle unfair that citizens of Singapore are given ?trther (and entrenched) rights under Art 12(2). Indeed, there are other fundamental rights in Pt IV ol? the Singapore Constitution which only citizens of Singapore can avail themselves o1~ (see, for example, Art 13 in relation to the prohibition of banishment and the right to Freedom ofmovement; Art 14 in relation to the right of freedom of speech, assembly and association (see also the decision of this court in Review Publishing Co at and and Art 16(1) in relation to rights in respect of education). However, there are also many other Articles in Pt of the Singapore Constitution which (probably because they impact any person in the most fundamental manner) apply to all persons (see, for example, Arts in relation to liberty of the person; Art 10(1) in relation to the prohibition of slavery and forced labour; Art ll in relation to protection against retrospective criminal laws and repeated trials; and Art 15 in relation to freedom of religion). in any event, the question of whether or not non?citizens should be given similar rights as citizens of Singapore in the present context, whether with respect to some or all of the prohibited grounds of discrimination set out in Art 12(2) (or, albeit less probably, outside Art 12(2)) is obviously something beyond the remit ol? the courts, and, as already mentioned, is in any event irrelevant on the facts of the present appeals. Comparative constitutional provisions (1) Constitutional provisions which make express reference to sex ?sexual orientation? and/or ?gender? 95 It is instructive, in our View, that in contrast to Art there are constitutional provisions from other jurisdictions which expressly prohibit discrimination on the grounds of ?sex?, ?sexual orientation? or ?gender? (or a combination thereof). 50 Lim Meng Swag AG [2014] SGCA 53 96 One example is Art 8(2) oi" the Malaysian Constitution. The material part of Malaysia?s Art 8 reads as follows: Equality 8. All persons are equal before the law and entitled to the equal protection of the law. (2) Except as expressly authorized by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment. [emphasis added in italics and bold italics] 97 Turning to the lndian Constitution, which prohibits discrimination on the grounds of (inter cilia) sex, the relevant Articles on the right to equality read as follows: Right to equality 14. Equality before State shall not deny to any person equality before the law or the equal protection of the laws within the territory of lndia. 15. Prohibition of discrimination on grounds of religion, race, caste, or place of birth?(1) The State shall not discriminate against any citizen. on grounds only of religion, race, caste, sex, place of birth or any of them. (2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to? access to shops, puhlic restaurants, hotels and places of public entertainment; or the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public. 51 Lim Meng Strong 1) AG 12014] SGCA 53 (3) Nothing in this article shall prevent the State from making any special provision for women and children. Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement. of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. (5) Nothing in this article or in sub-clanse of. clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement: of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause of article 30. 16. Equality of opportunity in matters of public employment?(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. (2) No cities-n shall, on grounds only of religion, race, caste, sax, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. (3) Nothing in this article shall prevent. Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to suoh employment or appointment. Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. HA) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State. 52 Lim Marig Suiting 1! AG [20 4] SGCA 53 [emphasis added in italics, bold italics and underlined bold italics] 98 Section 15 of the Canadian Charter of Rights and Freedoms likewise contains an express prohibition of discrimination on the grounds of (inter other) ?sex?, as follows; 15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. [emphasis added in bold italics] 99 Finally, to take just one more (and even clearer) illustration, 9 of ch 2 of the Constitution of South Africa, which prohibits discrimination on the grounds of (inter elie) gender, sea and sexual orientation, reads as follows: 9. Everyone is equal before the law and has the right to equal protection and benefit of the law. (2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken. The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. (4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of Lim [Wang Huang [20bit] SGCA 53 subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination. (5) [Discrimination on one or more of the grounds listed in subsection is unfair unless it is established that. the discrimination is fair. [emphasis added in bold italics] (2) Open-ended constitutional provisions 100 As mentioned above at there are, in contrast, miter jurisdictions where the corresponding constitutional provision on the right to equality is openrended. The paradigm example is the US Constitution - in particular, the Fourteenth Amendment, which reads as follows: AM DMENT XIV SECTION 1 . All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of Citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 101 It can be seen that the provision just quoted in the preceding paragraph is open-ended inasmuch as it does not contain any equivalent affix": 12(2). Not surprisingly, therefore, the US courts (in particular, the US Supreme Court) have taken the view that different grounds of discrimination will attract different levels scrutiny, with the legal principles applicable to the different grounds to be enunciated and developed through case law. Had, in fact, the Fourteenth Amendment to the US Constitution contained a provision which was equivalent to our Arr 12(2), the position might have been quite different. 54 Lim Huang AG [2014] SGCA 53 We pause to observe, parenthetically, that an openwended provision on the right to equality in a Constitution brings problems and dif?culties of its own. How, for example, is the court to decide which porricaiar ground of discrimination ought to come within the ambit of that provision? There is every danger that the court could end up acting like a ?mini?legislature?. Indeed, it might have no choice but to do so, except, perhaps, in the clearest instances (which would, ex Ippothcsi, have the endorsement of at least the majority of the population in that particular jurisdiction, although there would be very real and practical difficulties in the court?s ability to ascertain the existence ofsuch endorsement in the first place). A briefsummary of our ena?vsis thuser 102 A brief summary at this juncture is apposite, but it should be read and understood in conjunction with the detailed analysis proffered above: The ?reasonable classification" test is the applicable test in Singapore for determining the constitutionality of a statute under Art 12(1). it is a threshold test inasmuch as a failure to satisfy it (by satisfying both Limb and Limb of the test) will result in the statute concerned being rendered void without the court even having to directly engage the concept of equality as such. This is because the statute concerned would be so illogical and/or incoherent that, ex hypothesf, it cannot possibly even begin to satisfy the concept of equality embodied in Art12(1). To that extent, the ?reasonable classi?cation" test contains substantive elements which impact the concept of equality itself. Article 12(1) is more declaratory and aspirational in nature. However, as stated at sub-para above, any statute which does not 55 le Meng Strong AG [2014] SGCA 53 satisfy the ?reasonable classi?cation? test will necessarily be in contravention of Art 12(1). To the extent that both limbs of the ?reasonable classification? test embody the requirements of logic andlor coherence, it can be said that a statute is illegitimate if and to the extent that either or both of these requirements is not satis?ed because the statute fails to pass muster under one or both of the limbs of the ?reasonable classi?cation" test. For the avoidance of doubt, it should be emphasised that there is no further test oi? illegitimaey (vised-iris the object of the impugned statute) for the detailed reasons set out in this judgment. (cl) Article 12(2) prohibits speci?c grounds of discrimination, which are the only grounds of discrimination that are proscribed under the Singapore Constitution. Any discrimination (albeit only) on any of the grounds stated in Art 12(2) will render the statute concerned void pursuant. to Art4 to the extent ol? the inconsistency with Art 12(2). Article 12(2) sets out a structured and principled approach to the right to equality, as compared to constitutional provisions in other jurisdictions which are more open-ended and which might therefore vest too much ?legislative? power in the courts. Although only speci?c grounds of discrimination are prohibited under Art 12(2), the necessary ?exibility to include additional prohibited grounds of discrimination exists inasmuch as Art 12(2) can be amended by the Singapore Parliament (pursuant to Art 5 ol" the Singapore Constitution) in order to rellect the prevailing social mores as well as aspirations of Singapore society at any given point in time. Whilst Art 12(2) applies only to citizens of Singapore, non-citizens are nevertheless still accorded 56 Lint Meng Strong [2014,] SGCA 53 protection under Art 12(1) pursuant to the ?reasonable classification? test. 103 Let us now turn to apply the principles set out above to the facts of the present appeals. Our decision on whether 37 7A violates Arr 13(1) Our approach 104 As already mentioned earlier, the ?reasonable classi?cation" test must necessarily be the ?rst legal port of call. This court must also consider whether or not the facts of the present appeals fall (more speci?cally) within Art 12(2). However, before proceeding to examine these two issues, there is a signi?cant preliminary issue that needs to be considered: is there (as the Respondent argues and, not surprisingly, the Appellants refute) a presumption of constitutionality where s377A is concerned, given the fact that it was promulgated during colonial times when, ex there was (at least literally speaking) no Constitution in existence in Singapore? is (here a presumption of constitutionality? 105 As alluded to above, the Appellants argue that the Respondent cannot rely on a presumption of constitutionality in so far as the legal. status of 377A is concerned. In particular, they point to the fact that. 377A was enacted at a point in time when there was no Constitution in existence in Singapore. In doing so, they draw a distinction between laws enacted before Singapore became an independent sovereign State on 9 August 1965 laws?) and laws enacted thereafter laws?). 57 Lim Meng [2014] SGCA 53 106 The dif?culty with the aforesaid distinction is that whilst there was (literally speaking) no Constitution in existence in Singapore at the time pre? Independcnec laws were promulgated, these laws nevertheless constitute part of the corpus oi" Singapore law. In this regard, Art 162 of the Singapore Constitution (?Art 162"), which provides for the continuation of existing laws, might be usefully noted: Existing laws 162. Subject to this Article, all existing laws shall continue in force on and after the commencement of this Constitution and all laws which have not been brought into force by the date of the commencement of this Constitution may, subject as aforesaid, be brought into force on or after its commencement, but all such laws shall, subject to this Article, be construed as from the commencement of this Constitution with such modifications, adaptations, quali?cations and exceptions as may be necessary to bring them into conformity with this Constitution. Looked at in this light, it is dif?cult to regard pro-Independence laws as being somehow ?inferior? to post?Independence laws inasmuch as the former were promulgated during colonial times. Whilst there was some discussion as to whether or not Art 162 had a substantive (as opposed to a merely technical (including linguistie)) effect in so tar as the words ?modi?cations, adaptations, quali?cations and exceptions? were concerned, this does not detract from the fact that laws do in fact constitute part of the corpus of Singapore law. If any of these laws is alleged to be unconstitutional, that will have to be determined (as in the present appeals) by the courts in accordance with the relevant constitutional rules and principles. 107 Mr Abdullah accepted (correctly, in our View) that whilst the presumption ozl? constitutionality ought to still operate even in relation to pre~ Independence laws, the presumption might not, in the nature of" things, operate 58 Lim Meng Strung AG [2014] SGCA 53 as strongly as it would compared to postalndependenee laws (which would necessarily have been promulgated in the context of, inter (did, an elected legislature which, it can be assumed, would have fully considered all views before enacting the (post?Independence) laws concerned). As mentioned in the preceding paragraph, it would, in our view, he too arti?cial and too extreme to discard the presumption of constitutionality altogether in so far as pre- Indepcndence laws are concerned. The approach advocated by Mr Abdullah represents a viable middle-ground which avoids throwing out the baby together with the bathwatcr. Indeed, when viewed lirom a practical perspective, the court, in applying the presumption of constitutionality, will always have regard to all the circumstances of the case (including both the relevant test as trail as the context of the statute concerned). 103 To summarise, whilst the presumption ol" constitutionality applies in the contest of the present appeals, this is subject to the precise facts and circumstances which we shall be considering in due course. Let us now turn to the application of the ?reasonable classi?cation" test to 377A. Application ofrhe ?reasonable classi?cation test to 377A 109 As mentioned earlier at (inter alia) above, the ?reasonable classification? test comprises two limbs, both of which must be satisfied before the test is satisfied. To recapitulate (albeit in the of terms), Limb requires the classi?cation prescribed by the statute concerned to be founded on an intelligible differentia, while Limb requires a rational relation between that differentia and the object sought to be achieved by the statute. 59 Lin-i Meng Strong AG ['20 4] SGCA 53 Is the classi?cation prescribed by 377A based on an intelligible differentia?? 110 As already noted above (at the Judge held in Lira Meng Strong that it was clear that the classi?cation prescribed by 377A was based on an intelligible di'l'l'erentia inasmuch as there was little difficulty in determining who fell within and without the provision. In his View (see le Meng Strong at 47 The First Limb requires that the classification prescribed by the impugned legislation must be based on an intelligible differentia. ?lntelligible? means something that may be understood or is capable of being apprehended by the intellect or understanding, as opposed to by the senses. ?Differentia? is used in the sense of a distinguishing mark or character, some attribute or feature by which one is distinguished from all others. Scientifically, one talks of an attribute by which a species is distinguished from all other species of the same genus. 48 Applying this to the present case, it is quite clear that the classification prescribed by 377A via, male homosexuals or bisexual males who perform acts of ?gross indecency? on another male is based on an intelligible differentia. It is also clear from the differentia in 377A that the section excludes male?female acts and female?female acts. There is little difficulty identifying who falls within this classification and who does not. The Court of Appeal seemed to say as much in Tort Eng Hang [(standing)] at in my view, the First Limb is satisfied and few can cavil with this conclusion. 111 We agree with the Judge and his reasoning as set out in the preceding paragraph. Indeed, the intense controversy sun'eunding the debate on 377A in the extra?legal sphere in general and during the parliamentary debates in October 2007 on proposed changes to the revised edition of the Penal Code then in force (to, the Penal Code (Cap 224, 1935 Rev Ed) (?the 1985 Penal Code?)) in particular demonstrate that the dillerentia embodied in 377A, Whilst controversial, is not: unintelligible. Put simply, if the very elements of 377A were illogical arid/or incoherent to begin with, there would have been 60 Lim Meug Huang AG [20 I 41] SGCA 53 no basis upon which the parties on. each side of this cavernous divide could have joined issue in the first place. Indeed, the controversy relates more to extrapiegai arguments that are relevant to the debate as well as the decision in the legislative sphere (on whether 377A should be retained in our statute books or repealed). 12 Mr Ravi argued that the dit't?erentia embodied in 377A was not intelligible because it was discriminatory inasmuch as it discriminated between male homosexuals on the one hand and female homosexuals on the other. He also utilised (as did Ms Barker), in oral arguments, the analogy of a law harming all women from driving on the roads. 113 With respect, Mr Ravi has cou?cited the ?reasonable classification? test (in particular, the ?rst limb thereof, which is the focus of the present analysis) on the one hand and the issue of whether or not there has been discrimination on the other. Put simply, the latter issue (viz, whether or not there has been discrimination) has been merged with the ?rst limb of the ?reasonable classi?cation? test. It will be recalled that the ?reasonable classi?cation? test is only a threshold test (see above at, iater alia, As we have already explained, this does not mean that the test is merely technical or mechanistic, instead, it does, to some extent, impact the concept of equality in Art 12 itself (see above at [62] and 1ndeed, the ?reasonable classi?cation? test, in embodying the requirements of logic and/or coherence, also introduces (to that extent) a limited element of legitimacy, although it has been emphasised above (at that there is no, further test of illegitimacy (visud-vis the object of the impugned statute) as such. Looked at in this light, the differentia embodied in 377A is both logical and coherent. Mr Ravi obviously begs to differ. However, this difference in View is premised on substantive criteria that lie outside the scope of the ?reasonable classificatirm? test altogether. in the 61 Lim Meng Strong AG [201-51,] SGCA 53 Singapore context, substantive criteria lie, instead, within the purview of Art 12(2) (see above at Put simply, contrary to what Mr Ravi appeared to suggest, the ?reasonable classification test" is not the only (and de?nitive) test for determining whether the right to equality under Art 12 as a whole has been violated. This is because even if an impugned statute passes legal muster under the ?reasonable classification? test for the purposes of Art 12(1), it will also have to pass legal muster under Art 12(2). As we shall show below (at 377A not only passes legal muster under the ?reasonable classification? test, but also does not run foul of Art 12(2) for the simple reason that Art 12(2) does not address or encompass the subject matter of 377A. 114 Similar reasoning to that set out in the preceding paragraph would apply to Mr Ravi?s and Ms Barker?s arguments (by analogy) with respect to a law which bans all women from driving on the roads. We would observe, parenthetically, that, in any event, such a law is an extreme provision which would probably not. be enacted by a reasonable Parliament in the Singapore contest. That having been said, anything is, of course, possible, Should such a law indeed be passed by the Singapore Parliament, there would, in our view, he at least an arguable case that that law would not pass legal muster under the ?reasonable classi?cation" test. The dift?ereutia embodied in that law might, arguably, be illogical andXor incoherent for the purposes of the first limb (is, Limb (an of the ?reasonable classi?cation? test. Further, as pointed out above, there is also a second limb (is, Limb ol~ the ?reasonable classi?cation" test which must be satis?ed, Limb and Limb being consecutive and cemeteries aspects of the test. Looked at in this light, it is at least arguable that there might not: be a rational relation between the differentia embodied in the al'bremcntioned law on the one hand and the purpose and object of that law on 62 Lim. Merry Strung 1.114(3- [2014] SGCA 53 the other unless the purpose and object of that law is precisely to ban all. women from driving. However, if that is indeed the case, we would come back full circle, so to speak, to the issue (just mentioned) of whether or not the differentia (as identified under the First limb l' the ?reasonable classi?cation? test) is illogical andfor incoherent. No such circularity arises on the facts of the present appeals. 115 We turn now to the next (and closely-related) issue of whether or not the second limb of the ?reasonable classi?cation? test has been satis?ed on the facts oi? the present appeals, vie, is there a rational relation between the embodied in 377A and the purpose and object of that provision? (2) Is there a rational relation between the dilil?crentia embodied in 377A and the purpose and object of the provision? (A) Is THE, runrosE AND oniHCT or 116 Although this particular question of the purpose and object of 377A did not appear to pose a problem in the court below and, indeed, before this court (at least for the initial part of the parties? oral submissions), it does not for the reasons set out below admit of that clear an answer. (I) THE oaroms 377A 1 17 Section 377A is based on 11 of the Criminal Law Amendment Act 1835 (c 69) (UK) (?the 1885 ills; Act"), which is more commonly known as ?the Labouchcre Amendment" (as it was introduced by Mr Henry Labouchcre). This court has, in Tan Eng Hang (standing), dealt with the historical backdrop to both the UK and the local positions in some detail. Sullicc it to state that the precise origins of 11 of the 1885 UK Act (?the 11?) are none too clear a. point also acknowledged by the Judge in the court 63 Lint Meng Suang' AG [20] 4] SGCA 53 below (see le Meng Suang at Put briefly, the UK. 11 was introduced at, literally, the eleventh hour, and had nothing to do with the main thrust of the 1885 UK Act itself. It is therefore not surprising that there was no debate in the UK Parliament on this particular provision before enacting it. This merely adds to the mystery surrounding its origins and, more importantly, its purpose and object. (II) THE tNTRonaet?toN 0F 3 3 77.4 mm Tat: JN 1938 118 What, then, of Although it was (as already mentioned) based on the UK 11, it was introduced into our Penal Code only in 1938 some 5 3 years after the inception. of its original counterpart in the UK. The UK 11 was introduced into the Straits Settlements in the form of 377A of the Penal Code (Cap 20, 1936 Rev Ed) (?the 1936 Penal Code?) via 3 of the Penal Code (Amendment) Ordinance 1938 (No 12 of 1938) (?the 1933 Penal Code Amendment Ordinance?). Whilst an immediate response might, notwithstanding the substantial lapse of time just referred to, be to assume that the purpose and object of 377A was the same as that of the UK. 11, an equally immediate problem is that the purpose and object of the latter provision was unclear to begin with. In this last-mentioned regard, it. appears that it has merely been assumed that the purpose and object of the UK 11 was coterminous with the general language contained therein. This is not the most enlightened of approaches in so far as ascertaining the purpose and object l' a statutory provision is concerned, but it might, in the circumstances, have been the only viable way forward. That having been said, it does not logically?tllow that the purpose and object of's 3 77A would necessarin he the same as that of the UK especially when we take into account the ?tct (already mentioned) that 377A was enacted some 53 years after the latter 64 Lim Meng' Sitting [*3le [2014] SGCA 53 provision. Unfortunately, what objective evidence we have on the purpose and object of 377A is itselfunelear. Let us elaborate. ?the Arro:wer?smrrorr. ?s seer-1cm BEFORE rHe Smarts Serrteiuems Leaner r: we Co 119 The starting point is the following brief paragraph by the then Attorney?General, Mr Howell (?Mr Howell?), in his speech when introducing the Penal Code (Amendment) Bill 1938 (?the 1938 Penal Code Amendment Bill?) in the Straits Settlements Legislative Council (that Bill was later enacted as the 1938 Penal Code Amendment Ordinance). Mr Howell stated as thllows (see Proceedings ofthe Legislative Council of the Straits Settlements (?Proceedings?) (13 one 193 8) at B49): With regard to clause 4 [later enacted as 3 of the 1938 Penal Code Amendment Ordinance, which introduced 377A into our Penal Code] it is unfortunately the case that acts of the nature described have been brought to notice. As the law now stands, such acts can only be dealt with, if at all, under gig Minor ,Offences Ordinag?, and then only if committed i_n public. Punishment under the Ordinance is inadequate and the chances of detection are small. It is desired, therefore, to strengthen the law and to bring it into line with the English Criminal Law, from which this clause ig taken, and law of gg?ous other parts of the Colonial ?mgire of which it is only necessary to mention Hong Kong a_n,d Gibralj?- where conditions are somewhat similar to our? own. [emphasis added in italics, bold italics and underlined bold italics] 120 Whilst Mr Howell?s statement (as quoted in the preceding paragraph) is brief, it is (as we shall see) extremely It is, in tact, pregnant with meaning, and (as we shall elaborate upon below) the dif?culty lies in ascertaining the precise meaning which Mr l-lowell intended. Before proceeding to do so, it is appropriate to set out other historical documentation which might be of relevance to the present inquiry into the purpose and object ofs 377A. 65 Lirn Meng' Huang 1: [2014] SEGA 53 (IV) Tltli? Hatters AND Reasons ACCOMPANYING THE 1938 PENN. (Jane 121 We turn, first, to the ?()hieets and Reasons" which accompanied the 1938 Penal Code Amendment Bill (?the Objects and Reasons?). The material part of the Objects and Reasons reads as follows (see Proceedings (25 April 1938) at C81): Clause 4 introduces a new section based on section 11 of the Criminal Law Amendment Act 1835 (48 and 49 Viet. c. 69). The section makes punishable acts of gross indecency between male persons which do not amount to an unnatural c?ence within the meaning of section 377 cf the [19333 Penal! Code. [emphasis added in italics, bold italics and underlined bold italics] (If) QUESTIONS Mist-s) 122 At this particular juncture, an extremely important point should be noted: whilst Mr l-lowell referred to the need to supplement the Minor Offences Ordinance 1906 (No 13 of was) (?the 1906 Minor Offences Ordinance") in his speech to the Straits Settlements Legislative Council (see above at the Objects and Reasons referred, instead, to the need to supplement 377 of the .7936 Penal Code. (For ease of discussion, we shall hereafter use the term ?s 377? to denote not only 377 of the 1936 Penal Code, but also, where appropriate to the contest, its successor provisions up to the time 377 of the 1985 Penal Code was repealed by the Singapore Parliament via the Penal Code (Amendment) Act 2007 (Act 51 01?2007') (?the 2007 Penal Code Amendment Why are there references to different statutes? More importantly, is there an inconsistency, or is the inconsistency more apparent than real? On a related note, both Mr Howell?s speech to the Straits Settlements Legislative Council (referred to hereafter as ?Mr Howell?s Council speech? where appropriate to the contest) as well as the Objects and Reasons referred to the fact that 377A was based on English law 66 Lim Meng Strung AG [2014'] SGCA 53 (is, the UK all). What is the signi?cance, if any, of this last-mentioned reference to English law? Belore attempting to answer these questions, we shall continue to set out the rest of the historical documentation that might be relevant to the present inquiry. (V 1' OTHER arctar'ANT Colonial Office correspondence 123 There is Colonial Of?ce correspondence relating to the 1933 Penal Code Amendment Ordinance, which was sent after the enacnnent of that Ordinance (the Ordinance was assented to by the Governor and Commander- ianhief on 2 July 1933 and came into effect on 8 July 1938). The ?rst piece of correspondence (from the UK Public Record Of?ce, Colonial Office Series 273) is a cover letter dated 13 July 1938 from the Deputy of the Governor of the Straits Settlements, the material part of which reads as follows: Sir, I have the honour to forward herewith Ordinance No.12 of 1938, entitled ?An Ordinance to amend the Penal Code (Chapter 20 of the Revised Edition)?, together with the Attorney?General?s certificate and report: on. the Ordinance. [emphasis added in italics and bold italies] 124 What is interesting in the aforesaid cover letter is the reference to the enclosed ?report? [emphasis added], which was entitled ?Report on an Ordinance to amend the Penal Code (ChaptcrEO of the Revised Edition). (No. 12 of 1933)? and dated 21June 1938 (?the June 1938 Report?). The relevant part of that report (relating to the introduction of 377A) reads as follows: 67 Lin: Meng Huang AG [2014-] SGCA 53 SectionS [of the 1938 Penal Code Amendment Ordinance] introduces a new section based on section 11 of the Criminal Law Amendment Act 1885 (48 and 49 Vict. c. 69). The section makes punishable acts of gross indecency between male persons which do not amount to an unnatural o?'ence within the meaning of section 377' the [1936 Penal] umq? I Egg. [emphasis added in italics, bold italics and underlined bold italics] It will be noticed that the extract just quoted is virtually identical to the relevant part of the Objects and Reasons set out above (at and is, correspondingly, different ?'om Mr Howell?s Legislative Council speech (which refers, instead, to the need to supplement the 1906 Minor Q?ences Ordinance). to] Annual Reports on the Organisation and Administration of the Straits Settlements Police and on the State of Crime 125 possible relevance, too, are some extracts from the Annual Report on the Organisation and Administration of the Straits Settlements Police and on the State of Crime (?the Annual Report?) for the years 1936 to 1938. In particular, reference may be made to the Annual Report for the year 1936 at para 40, where it is stated as follows: Prostitutes are no longer to be found soliciting in numbers on street parades; they find it more profitable to go to amusement parks, cafes, dancing places and, generally speaking, no exception can be taken to their 1oehaviour. Singapore, a port and a town combined, is not. free from the very low type of prostitute. The lewd activities of these have been sternly suppressed. Male prostitution was also kept in check, as and when encountered. [emphasis added in italics and bold italich 126 Reference may also be made to the Annual Report for the year 1937 at para 36 as well as paras where it is stated thus: 63 Lim Meng .S?uang AG [2014] SGCA 53 Public Murals 36. The Police took action to suppress the old type of brothel (a keeper and several women) and have prevented as far as it has been possible the establishment of the new type? two or more women living on or available at premises rented for the purpose of prostitution. Soliciting in public was kept in check, a difficult and unpleasant type of work and one requiring ceaseless supervision. 38. The fact that the Police are not the deciding authorities in matters of morals is often overlooked. The duty of the Police is to suppress offences. Offences against public decency are defined in the laws of the land. The presence of prostitutes on the streets is no offence. An offence is committed only if? a__ipoman Ersistentll solicits to the annoyance of a member of the public. The public have not yet come forward to give evidence that she does so. It would seem that in Singapore the concourse of East and West is alone responsible for such publicity as has been given to a state of affairs similar to that in Europe, where it passes almost unnoticed. 39. Widespread existence of male prostitution was discovered and reported to the Government whose orders have been carried out. A certain amount of criticism based probably upon too little knowledge of the actual facts, has been expressed against a policy the object of which is to stamp out this evil. Sodomy is a penal offence; its danger to adolescents is obvious; obvious too, is the danger of blackmail, the demoralising effect on disciplined forces and on a mixed oummunijy gyhich looks to the (government {or wholesome governing. [emphasis added in italics, bold italics and underlined bold italics] '127 Finally, reference may he made to the Annual Report for the year 1938 at paras 45?48, which read as follows: PWLIC Mounts 45. The duty of the Police in safegniarding public morals is limited to enforcing, the law. The slightest deviation from such a policy, in this matter more than in any other, would lead to 69 Lim Mehg Suartg [2014] SGCA 53 the risk of very serious persecution or connivance. The law of the Colony is based on the law of the United Kingdom, and that human nature is not subject to climatic variations is well proved by a visit to, for instance, Jermyn Street, the deck area of Southampton, or street corners at Woolwich or Sandhurst at the recognised hours. The only difference is to be found in the text of the law in the words ?wersistently? solicits. The courts have to be satisfied on this point by evidence independent of the Police. This evidence has not been forthcoming in the city of Singapore. 46. Action against the local brothels?2 woman living together?was continued, but rapid Changes of addresses and fines of $1 make matters difficult. 4'7. Action was taken against pimps and traffickers whenever evidence was forthcoming. 48. Male prostitution and other forms of beastliness were stamped out as and when opportunity occurred. [emphasis added in italics and bold italics] (V11) ANAL OF AND DECISION CJN AND owner or 377A 128 Let us now return to the important questions posed above (at [122]) as they impact directly and signi?cantly on the crucial inquiry at hand, viz, the purpose and object of 377A. This relates to the application of Limb of the ?reasonable classi?cation? test. 129 It will be recalled that one key dif?culty lies in the fact that Mr Howell referred to the need to supplement the 1906 Minor (foehces' ()rdtnohce in his speech to the Straits Settlements Legislative Council (see above at whereas both the Objects and as well as the June 1938 Report referred to the need to supplement s3 77 (see above at [121] and [124], respectively). 130 In so far as the 1906 Minor (menses Ordinance was concerned, the relevant provision was 23 thereol'C?s which read follows: 70 Lin-z Meitg' Huang 1! AG [2014] 53 Any person who is found drunk and incapable of taking care of himself, or is guilty of any riotous, disorderly indecent; behaviour, or of persistently solicitinur importuning for immoral, purposes in any public road or in any public place or place of public amusement or resort, or in the immediate vicinity of any Court or of any public office or police station or place of worship, shall be liable to a fine not exceeding twenty dollars, or to imprisonment for a term which may extend to fourteen days, and on a second or subsequent conviction to a fine not exceeding fifty dollars or to imprisonment for a term which may extend to three months. [emphasis added in italics, bold italics and underlined bold italics] 131 Counsel for all the Appellants relied heavily on the fact that Mr Howell referred to the 1906 Minor Offences Ordinance to argue that 377A was enacted in order to combat the problem of mate prostitution. On their argument, applying 377A to categories outside the narrow category just mentioned (via, male prostitution) would be over-inclusive and, hence, unconstitutional. in particular, Ms Barker pointed to the words ?persistently soliciting or importuning for immoral purposes" in 23 as evincing an intention on the part of the Straits Settlements Legislative Council that 377A (dealing as it did with male?todmale conduct) should cover the social as well as public ill of male prostitution. Whilst we see some three in this particular argument, there are at least two dif?culties with it. Let us elaborate. 132 The first dif?culty relates to the fact that. 23 contains not only the phrase ?persistently soliciting or importuning for immoral purposes?, but also the (more general) phrase ?guilty of any indecent behaviour? [emphasis added]. That these two phrases set out two separate and distinct limbs of the offence under 23 is clear, and is con?rmed by the fact that these two limbs presently exist. as two separate and distinct sections (vie, 519 and s20, respectively) of the Miscellaneous Offences (Public Order and Nuisance) Act (Cap 184, 1997 Rev Ed), the current equivalent of the 1906 Minor Offences Ordinance. This ?rst dif?culty in fact leads us to the second dif?culty, to 71 Lint lilting liiuanigIr AG [2014] SGCA 53 which it is (as we shall see in a moment) closely related. This second dif?culty lies in the fact that both the Objects and Reasons as well as the June 1938 Report did not refer to the need to supplement the 1906 Minor ()ffences Ordinance at all, but referred instead to the need to supplement s377. Section 377 as it stood in 1938 read as follows: Unnatural offences 377. Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with penal servitude for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine or to whipping. is sufficient to constitute the carnal intercourse necessaiy to the offence described in this section. 133 This (apparently) alternative purpose and object of 377A (ie, to supplement 377) is significant because it is consistent with the other (and more general) limb of .23 (which, it will be recalled, relates to the prescription of, inter alia, ?indecent behaviour indeed, this particular limb of 23 was broader than 377 inasmuch as it covered ?indecent behaviour? that included but was not con?ned to anal and/or oral sex (hereafter referred to as ?penetrative sex?); however, it was con?ned to public conduct. Hence, 377A, which would also cover ?grossly indecent" acts between males in private, would apply to situations which were outside the purview of .23. It is also important to note that 377A would simultaneously supplement 3 77 inasmuch as s377A would (like .23) cover even ?grossly indecent? acts which fell short of'penetrative sex. It should he pointed out, at. this juncture, that it follows that 377A would necessarily cover acts ofpenetrative sex as well. Any other interpretation would be illogical since it cannot be denied that acts of penetrative sex constitute the most serious instances of the possible acts of ?gross indecency?. 72 le Strong 1: [2014'] SGCA 53 134 As just mentioned, 377A broadened the scope hitherto covered by 377 to cover not only penctrative sex but also other (less serious) acts of ?gross indecency" committed between Males. However, we would expect that prior to our Parliament?s repeal of 377 via the 2007 Penal Code Amendment Act, where acts of pcnetrative sex were involved, the accused would probably have been charged under 377 as that section imposed a heavier penalty (compared to 377A), although the Prosecution would also have had the option of charging the accused under 377A instead. This is not surprising because, as we have just observed, acts of pcnetrativc sex are the most serious instances of the possible acts of ?gross indecency?. Now that 377 has been repealed, there is no reason in principle why a charge under 377A cannot be brought in a situation involving acts of sex between two males (which, as we have already noted, would, ex hypothesi, fall within the de?nition of ?any act of gross indecency? within the meaning of 377A). We note, however, that the current policy (as declared during the October 2007 parliamentary debates mentioned at [111] above) is for the Prosecution to generally not charge accused persons under 377A, so the point just referred to is in the practical context at least merely academic. It is, nevertheless, an important point to make in the context of the present appeals, particularly in the light of the further written submissions which Ms Barker tendered on behalf of her clients (and which are dealt with below at U441). 135 Returning to the comparison between 377A and 23, 377A was, we mentioned above at [1 33.1, broader in scope than .3 23 inasmuch as 377A covered ?grossly indecent? acts between males in private as well. Such an analysis would explain why Mr I-Iowell referred to the need to supplement the 1.906 Minor foehces ()rdlnanee in his speech to the Straits Settlements Legislative Council (see above at and is in fact supported by the 73 I.th Meng Strung [2014] SGCA 53 reference by Mr Howell himself (in the same speech) to the need to capture acts which were committed in private as well (which acts, he pointed out, were not captured by the 1906 Minor Offences Ordinance as 23 only covered acts committed in public). It would also explain why Mr Howell further referred (as, indeed, did the Objects and Reasons as well as the une 1938 Report) to the fact that 377A was based on English law specifically, on the UK ll, which (despite the lack of clarity as to its precise origins) has always been perceived as a provision having general application. 136 We think that the analysis just set out is the most persuasive because it resolves what appears to be an inconsistency (or even a contradiction) between Mr Howell?s Legislative Council speech (see above at 119]) on the one hand and the Objects and Reasons as well as the June 1938 Report (see above at [121] and [124], respectively) on the other. But, it? that be the ease (te, if 377A was indeed meant to supplement 3 77), it would then follow that 377A itself ought to be given the same general application as 377, and contrary to the Appellants? argument should not be con?ned only to male prostitution. 137 That 377 was intended to be of general application is clear from the language as well as the historical context of that provision. The language itself is self-explanatory. In so far as the historical context ol? 3 77 is concerned, it consisted (originally) of two provisions which were worded quite difterently. They were clauses 361 and 362 of the original drall Indian Penal Code submitted by the then lndian Law Commission (headed by Lord Macaulay) to the then Governor-General of India in Council, Lord Auckland, in 1837. These clauses read as hollows: 74 Lim Meng Strong AG [2014] SGCA 53 OF UNNA TURAL 361. Whoever, intending to gratify unnatural lust, touches, for that: purpose, any person, or any animal, or is by his own consent touched by any person, for the purpose of gratifying unnatural lust, shall be punished with imprisonment of either description for a term which may extend to fourteen years and must not be less than two years, and shall also be liable to fine. 362. Whoever, intending to gratify unnatural lust, touches for that purpose any person without that person?s free and intelligent consent, shall be punished with imprisonment of either description for a term which may extend to life and must not be less than seven years, and shall also be liable to line. 138 That the clauses just quoted in the preceding paragraph (as well as the ?successor? provision embodied in 377) were intended not only to be of general application, but also (and more importantly) to en orce societal morality is clearly evidenced in no uncertain terms by the fiillowing observations ofthe then Indian Law Commission (see A Penal (.Tode prepared by the Indian Law Commissioners, and published by command of the Governor General of India in (L?ouncil (Pclham Richardson, 1838', reprinted item the Calcutta Edition and reprinted (in tum) by The Lawbook Exchange, Ltd, 2002) at 117 (also reprinted as Introductory Report upon: the Indian Penal Code in The Works of Lord Macaulay: Speeches Poems d3: Miscellaneous vol X1, pp 3?198 at 144)): Clauses 361 and 362 relate to an odious class of o?'ences respecting which it is desirable that as little as possible should be said. We leave, without comment, to the judgment of his Lordship in Council the two clauses which we have provided for these offences. We are unwilling to insert, either in the test or in the notes, any thing which could give rise to public discussion on this revolting subject; as we are decidedly of opinion that the injury which would be done to the morals of the community by such discussion. would far more than compensate for any benefits which. might be derived from. legislative measures framed with the greatest precision. [emphasis added in italics, bold italics and underlined bold italics] 75 Lim Meng ,S'urmg [2014] SGCIA 53 139 In contrast, it" the Appellants? analysis of the purpose and object of 377A that the provision was only intended to deal with male prostitution) were adopted, there would necessarily be an inconsistency (or even a contradiction) between the purpose and object alleged by the Appellants and the purpose (mentioned in the preceding paragraph) of guarding against ?injury to the morals of the community?. 140 Indeed, after 377A was introduced into the Straits Settlements via 3 of the 1.938 Penal Code Amendment Ordinance, bot/i 377 and 377A were listed under the broad and general heading Unnatural ()[fcnces (see also, to this the relevant heading and provisions in the Penal Code (Cap 119, 1955 Rev This clearly militates against the very specific purpose and object canvassed by the Appellants sis-a-vis 377A. 141 It should also be noted that the relevant historical documents (see above at [121] and [124]) refer to ?acts oi" gross indecency between male persons? [emphasis added] in a general sense, which again militates against the narrow approach advocated by the Appellants. 142 What, then, about the references to male prostitution in the various volumes ol? the Annual Report cited above (at if one looks at the plain language of 377A (reproduced above at and it is clear that the provision would not only capture ?grossly indecent? acts between males in a general sense, but would also necessarily capture (in an aforiiori manner) the (relatively) more specific acts relating to male prostitution, including procurement as well as by third-party pimps. it should also be noted that both the Annual Report for the year 1937 and the Annual Report for the year 1933 (at paras 38 and 45, respectively) referred to the problem of ?persistently soliciting or importuning for immoral purposes? in the context of 76 Lim Moog Smog [2014] SGCA 53 female as opposed to male prostitution. More importantly, perhaps, the Arrow! Report for the year 1937 and the Annual Report for the year 1938 both referred (at paras 33 and 45, respectively) to the need for the Police to safeguard ?public morals" [emphasis added] in a general sense (as opposed to in the context of male prostitution speci?cally). lndeed, the phrase ?public morals" constitutes the heading of the relevant part of the respective Annual Reports mentioned above. This is, of course, wholly consistent with the Respondent?s arguments on the purpose and object of 377A in the present appeals. 143 For the reasons set out above, we are of the view that the available objective evidence demonstrates that 377A was intended to be of general application, and was not intended to be merely con?ned only (or even mainly) to the speci?c problem of male prostitution (notwithstanding the fact. that this would be covered as well). 144 As mentioned above at [134], Ms Barker (with the leave of this court) tendered further written submissions on behalf of her clients after the oral hearing before us had concluded. In essence, she argued, ?rst, that the phrase ?gross indecency? in 377A did not cover sex and conduct which amounted to an ?unnatural offence? under 377. She argued that 377A was intended, instead, to cover other acts of ?gross indecency" oportfi'om acts of penetrotive sex, and that this was the meaning to be attributed to Mr Howell?s Legislative Council speech (reproduced above at [119]) with regard to the ambit of 377A. Ms Barker then proceeded to argue, secondly, that the original purpose of 377A was to suppress mote prostitution. To support this particular argument, she cited not only the historical materials already relerred to earlier in this judgment, but also further materials relating to the suppression of prostitution and brothels in the Straits Settlements. In addition, 77 Mung Strong wit} [2014] SGCA 53 she referred to materials demonstrating that in the English context, the prosecution of the famous author, Oscar Wilde, under the U14. 11 had been pursuant to his sexual activity with persons who were, in el?tect at least, male prostitutes. In this comtection, we note that Mr Ravi similarly tendered further written submissions which adopted Ms Barker?s arguments as stated above. Mr Ravi also advanced arguments based on executive estoppel and doubtful penalisation which were largely premised on Ms Barker?s arguments. 145 With respect, we are unable to accept either Ms Barker?s or Mr Ravi?s arguments. Let us elaborateBarker?s ?rst argument is concerned, we have already explained above (at [133 ) why the phrase ?gross indecency? in 377A must necessarily cover penetrative sex as well. Indeed, it must surely be the case that male prostitution might and, in most cases, probably would involve sex (although, conceivably, other acts of ?gross indecency? could also be involved). 011 this logical and commonsensical ground alone, the first argument by Ms Barker at [144] above does not, with respect, ring trueBarker?s second argument at [144] above is concerned, the additional historical materials proffered to this court (which included the observations by Ms Nicoll-Jones in ?Report on the Investigation of the Problem of Prostitution in Singapore? covering the period from May 1940 to May 1941) are, at best, neutral. they referred to the suppression of prostitution and brothels generally. Moreover, their focus (as also alluded to above at [142]) was on female (as opposed to male) prostitution. We further note the Respondent?s argument. in its supplemental written case that, in any event, the references to Ms Nicollulones? observations are irrelevant in so far as those observations were made after the enactment of 377A. 78 Lim Meng Huang AG [2014] SGCA Barker?s reference to the trial of Oscar Wilde is concerned, the argument is, again, neutral, at best. As the Respondent pointed out in its supplemental written case, Wilde was also charged under the for engaging in sexual activity with men who were not male prostitutes, and he was acquitted in those instances not because the men concerned were not male prostitutes, but rather, because the Prosecution did not succeed in proving the ingredients of the offence. In any event, it does not necessarily follow from the fact that Wilde might have been convicted under the UK ll for sexual activity with persons who were, in effect at least, male prostitutes that this particular provision was not intended to cover more general situations as well. Indeed, the position is precisely the converse: put simply, if the UK ll covered all situations relating to ?acts of gross indecency? between males, it woalclfollow that similar situations involving male prostitutes would also be covered on an a fortiori basis. In this regard, there is nothing in the legislative background surrounding the UK 11 which suggests otherwise. Further (and more importantly), the legislative background surrounding 377A, which has already been set out in detail above, militates against the interpretation prol?l?ercd by Ms Barker on behalf of her clients. For the same reasons, Mr Ravi?s arguments fall away as they were premised on the very same arguments that Ms Barker advanced. 149 We also note that if the purpose and object of 377A had been so specific as to only or mainly target the problem of male prostitution, it would have been open to Mr Howell to have been much clearer (and, more importantly, more speci?c). He spoke, instead, in far more general terms in his speech to the Straits Settlements Legislative Council (see above at l9l). We also note that given the specificity oi." the purpose and object argued for by the Appellants, it might have been more direct and more relevant for the 79 Lr?m Meng Huang 1) AG {2014] SGCA 53 Straits Settlements Legislative Council to have simply amended the 1906 Minor Oll'ences Ordinance instead (which, of course, was not the measure taken by the Straits Settlements Legislative Council in 193 8). A CDMPARA wee 150 In his speech to the Straits Settlements Legislative Council, Mr Howell referred, inter alia, to the respective situations in Gibraltar and l-long Kong. Unfortunately, what evidence was available before this court as to the situation in those two jurisdictions at that point in time was not particularly Indeed, there appears to be no real historical evidence with regard to the situation in Gibraltar at the material time (although we note that Gibraltar?s equivalent of 377A was abolished legislativeiy in 1993,). 151 In so far as the situation in Hong Kong was concerned, I-Iong Kong?s equivalent of 377A was enacted as 2 of the IIong Kong Criminal Law Amendment ()rdinance 1901 (No 3 of 1901). That was done some years prior to the introduction of 377A into the Straits Settlements. In the ?Objects and Reasons" accompanying the Criminal Law Amendment Bill 1901 (Hit), the then Attorney?General, Mr Meiin Goodman, stated as follows (see the Hongkong erernmertr (rosette (1 February 1901) at 170): Section *2 of this Ordinance extends to this Colony the provisions of section eleven of the English Criminal Law Amendment Act, 1885. When the various sections of Part1 of that Act which is headed ?Proteution of Women and Girls? were considered with a view to their being embodied in our local legislation relating to that subject, section eleven which is out of place in Part I of the English Aet was omitted. 152 Unfortunately, the statement quoted in the preceding paragraph does not aid as in ascertaining what precisely was the purpose and object at" Hong Kong?s equivalent of 377A. indeed, the above statement is somewhat 80 Lim flicng Strong AG [2014] SGCA 53 ambiguous and (at best) merely repeats what the (literal) situation in IIong Kong was at the time the 1385 UK Aet. was promulgated. We should also observe that Hong Kong (like Gibraltar) abolished its equivalent of 377A legislatively in 1991 . (B) ls THE 153 For the purposes of the seeond limb (ie, Limb of the ?reasonable elassi'lieation? test, we agree with the Judge that there is a rational relation between the dil?l?erentia embodied in 377A and the purpose and object of the provision as set out above. lndeed, given our ?ndings with respeet to the two limbs of the ?reasonable classification" test, we hold (as did the Judge) that there is, in l?aet, a complete coincidence in the relation between that differentia and that purpose and objeet. The issue ofillegitimcey 154 As already stated earlier in this judgment, there is no separate or independent test of illegitimncy (Ivisud-vis the objeet ol~ the impugned statute) for the purposes of aseertaining the constitutionality of that statute under Art 12. There is therefore no need for us to consider the issue o1?illegitin1aey in relation to the faets and eireumstanees of the present appeals, given our ?nding (applying the ?reasonable elassizlieation? test to 377A) that there is no illogieality or ineoherenee in the differentia embodied in that provision. It is important to reiterate that the eourts eannot beeome ?mini-legislatures?. That would be an illegitimate use of their powers. Indeed, the present appeals illustrate precisely the dangers of adopting such an approaeh. To elaborate, we have already referred above (at [l I) to the intense eontroversy surrounding the debate on 377A in the extramlegal sphere in general and during the ()etober 2007 parliamentary debates mentioned in that same paragraph in 81 le Meng Suartg' 1! AG [2014:] SGCA 53 particular. This controversy has been marked on both sides of a very stark (and ollen emotional) divide by a great number ofextraulegal arguments which are clearly and wholly outside the remit of the courts, and which fall instead within the purview of the legislature. The status and role ofextraalegal arguments 155 We turn now to consider the status and role of the aforementioned extra?legal arguments, a number of which were made by the parties in both their written as well as their oral submissions before this court. in our view, these arguments are (as already mentioned) clearly neither relevant rear material in so far as the application of the ?reasonable classi?cation" test is concerned. Neither are they relevant in so far as the application of Art 12(2) is concerned. What, then, rmald be the relevance (if any) arguments? In order to answer this more general question, it would be useful, in our view, to consider the specific extra-legal arguments which were made in the context of the present appeals. We should, however, emphasise that in doing so, we are not in any way taking these extra?legal arguments into account for the purposes of our decision on the legal issues set out above at [41 vts-aFvls the constitutionality of 377A. 156 In our view, whilst many of the Appellants? extra-legal arguments are valid (or, at least, plausible) ones, they are not arguments that may be appropriately considered by the court and are thus legallyr irrelevant. Put simply, the court is not the appropriate farum in which to canvass such arguments; the appropriate forum in this regard is, instead, the legislature. We shall demonstrate this with reference to each of the extra-legal arguments profile-red to this court. 82 Lint Men-g Huang AG [201d] SGCA 53 The ?tyranny of the majority" 15'? One of the extra-legal arguments canvassed by the Appellants was that 377A represented the ?tyranny of the majority? vie-awn persons who were in the Appellants? shoes (and who were in the minority). The right to equality under Art 12(1) constituted, so the argument went, the Appellants" legal bulwark against the ?tyranny of the majority". 158 In our view, this particular argument, whilst attractive at ?rst blush, consists more of rhetoric than of substance. Let us elaborate. 159 First, the argument raises a centuries-old philosophical conundrum to which, to the best of our knowledge, there has (despite the vast amounts of ink that have been spilt on this particular subject) hitherto been no satislactory solution. Put simply, ought majoritarian rights always to trump minority rights? It" not, when should the latter trump the former? In our view, invoking the phrase ?tyranny of the majority?, without more, does not address these questions in a practical (nor, for that matter, in a theoretical) maimer. Indeed, the majority could turn the argument just mentioned on its head and contend that likewise, they ought not to be subject to the ?tyranny ofthc minority". 160 Secondly, and turning to a more practical point, what. the minority (in this case, the Appellants) have to demonstrate to make out their argument is that there is a legal basis For claiming that their rights should trump those of the majority. However, this brings as back?tll circle to the interpretation as well as the application 12(7) and Art 12(2) which. we have already undertaken above. Any other (and broader) argument would not be one that the court can legitimately address. If at all, such other arguments should he addressed by the legislature instead. 83 Lint Meng Suang 1' AG [3014] SGCA 53 161 We should, however, observe, in fairness to the Appellants, that perhaps, their reliance on the argument that there should he no ?tyranny of the majority? could also be grounded in the (related) argument that. it would be wrong for the majority to enforce (through 377A) societal morality to the detriment of the individual rights of the minority. This last?mentioned argument will be dealt with below at [162]?u 174] in the course of considering the Appellants? argument based on the absence of harm, to which we now turn our attention. (2) The argument based on the absence of harm (and societal morality revisited) 162 The Appellants? argument based on the absence of harm was that their sexual conduct caused no harm to others. This particular argument was, of course, part of the broader jurisprudential debate on the enforcement of morals between Lord Devlin on the one band (see generally Patrick Devlin, The Enforcement of Morals (Oxford University Press, 1963) (?The Enforcement of Morals?)) and Prof A Hart on the other (see A Ilart, Law, Liberty and Mbrality (Oxford University Press, 1963) as well as, by the same author, The Morality of the Criminal Law: Two Lectures (Magnes Press, Hebrew University, 1964) (the two lectures mentioned in the title of this particular work were the Henry Camp Lectures delivered at Stanford University and the Lionel Cohen Lectures delivered at the Hebrew University of Jerusalem, respectively)). 163 The aforesaid debate stemmed from Lord Devlin?s famous Maccabaean Lecture in Jurisprudence entitled ?The Enforcement of Morals" (1959) 45 Proceedings of the British Academy 129, which was delivered on 18 March 1959 at the British Academy and which was reprinted in the book with the same title (mentioned above) (the lecture constituted the first chapter 84 Lint Meng Suang AG [2014] SGCA 53 of that work, albeit with the new title ?Morals and the Criminal Law"). What is interesting in the context of the present appeals is that this particular lecture by Lord Devlin was prompted by the views expressed in the Report of the Departmental Committee on Homosexual Offences and Prostitution (HMSO, 247, 1957), more popularly known as ?The Wolfenden Report? (after the chairman of that committee, Sir John Wolfenden) and hereafter referred to as ?The Woh?enden Report". Paragraph 61 of The Wol?snden Report states as follows: . We have outlined the arguments against a change in the law, and we recognise their weight. We believe, however, that they have been met by the counter?arguments we have already advanced. There remains one additional counter?argument which we believe to be decisive, namely, the importance which society and the law ought to give to individual freedom of choice and action in matters of private morality. Unless a deliberate attempt is to be made by society, acting through the agency of the law, to equate the sphere of crime with that of sin, there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law?s business. To say this is not to condone or encourage private immorality. On the contrary, to emphasise the personal and private nature of moral or immoral conduot is to emphasise the personal and private responsibility of the individual for his own actions, and that is a responsibility which a mature agent can properly be expected to carry for himself without the threat of punishment from the law. [emphasis added] 164 Brie?y stated, Lord Devlin was of the view contrary to that expressed in the Wolfenden Report - that the law could regulate as well as sanction private acts in order to preserve the moral Fabric of society. in setting out. his views, Lord Devlin proceeded, inter alia, on the premise that there was a societal morality that could constitute the basis upon which private conduct could be regulated and sanctioned by means td'the law. This is, in fact, akin to the approach adopted by the Respondent in the present appeals. 35 Lim Meng Suang [2014] SGCA 53 165 Prof I-Iart, on the other hand, disagreed with this view. Indeed, although Prol'l?lart?s best known works are those cited above (at he in fact pointed to an earlier article (vie, II A Hart, ?immorality and 'l?rcason? The Listener (30 July 1959) at pp as being not only ?one of [hisl better [articles]?, but also the piece that catalysed the entire debate; in Prof Hart?s own words, the article ?attacked Devlin. He was horri?ed. [Sol he [published] a whole book lvis, The Enforcement of'Mnrals] in reply to it" (see ?l-Iart. Interviewed: l-l.L.A. Hart in Conversation with David Sugarman? (2005) 32 Journal of Law and Society 267 at 284'). Put simply, Prof I-lart agreed with the views expressed in The Wolfenden Report. in doing so, he was, in contrast to LordDevlin, proceeding, inter alia, on the premise that the individual liberty of each person was inviolate. such that societal morality could not be utilised as a justification for regulating and sanctioning private conduct except to the (limited) extent (as we shall elaborate upon brie?y below) that harm otherwise result to others. This is. infact, akin to the approach adopted by the Appellants in the present appeals. 166 Ideas and arguments do not exist in an intellectual vacuum. Not surprisingly, therefore, both Lord Devlin and Prot?l-lart relied upon works of prior authors in support of their respective views. Lord Devlin?s views are consistent with those of the famous Victorian jurist and judge, James l'i?itzjames Stephen (see James Fitejamcs Stephen QC, Liberty. Equality. Fraternity (Smith Elder, &Co, 2nd Ed, 1874; reprinted, The University of Chicago Press, 1991) (?Stephen?); see also the preface to The Enforcement of Morals at vii), whilst ProfI-lart?s views are consistent with those of the famous British philosopher, civil servant and Member of Parliament, John Stuart Mill see Mill, On Liberty (John Parker and Son, 1859; reprinted with. Editing as well as an Introduction by Gertrude Himmelfarh in Pelican 86 tr?: MengSuang vile [2014] SGCA 53 Books, 1974) whose views were (not surprisingly) the subject of vigorous challenge in Stephen. So the debate between Lord Devlin and Prof Hart was an important debate with weighty protagonists on both sides (including their predecessors). 167 As already alluded to above (at a close analysis of the approach adopted by the Respondent in the present appeals will demonstrate that it is essentially relying upon the approach adopted by Lord Devlin. In particular, Mr Abdullah focused not a iew times upon the argument that 377A gave effect to public morality. Farther, Mr Abdullah submitted that that public morality was one which was determined by the legislature to exist, and such determination was uniquely within the purview of that institution. Any change (including, presumably, the repeal of 377A) therefore lay within. the province of the legislature and the legislature alone. We pause to observe, parenthetically, that the use of the phrase ?public morality? ought to be contrasted with the use ol~ the phrase ?popular morality? as the latter might engender unnecessarin negative (as well as other) perceptions. To avoid any possible misunderstanding whatsoever, we shall henceforth utilise (and, in fact, have already utilised) the phrase ?societal morality? instead. 168 The Appellants, in contrast, are obviously relying on the views of both Prol'l?lart as well as 8 Mill. in particular, Mill enunciated the famous ?harm principle? as follows (see Mill at pp 68?69): The object of this essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties or the moral coercion of public opinion. That principle is that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action. of any of 87 Lim Mei-lg Huang AG SGCA 53 their number is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbcar because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him or visiting him with any evil in case he do otherwise. To justify that, the conduct from which it is desired to deter him must be calculated to produce evil to someone else. The only part of the conduct of anyone for which he is amenable to society is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. himself, over his own body and mind, the individual is sovereign. [emphasis added] 169 Turning, ?rst, to the general debate between Lord Devlin and Prof Hart, the arguments on each side of the philosophical divide are, as mentioned above at [166], weighty ones. What is more important is that given these circumstances and given the nature of the arguments themselves, there are no clear answers not even at a theoretical level and, a fortiori, not at a practical one. This is not surprising. Interesting as these issues are as a matter of jurisprudence and legal philosophy, they are issues that lie quintessentially within the sphere of the legislature. The balancing of rights on a broad philosophical basis is not a task that the court can or ought to undertake. In particular, the Appellants? reliance in these proceedings on the ?harm principle? enunciated by Mill raises the very pertinent issue of what constitutes ?hann? in the ?rst place. It is not as appears to be the implicit assumption of the Appellants necessarily con?ned only to physical harm. But, il?not, how far should the ambit ol??harm? extend? A moment?s re?ection will reveal that the answers to this as well as other related questions lie quintessentially within the sphere of the legislature. This point already made several times in the course of this judgment cannot be emphasised too much. 88 Lim Mertg Suang AG [2014] SIG-CIA 53 Hence, the Appellants? argument based on the absence of harm, when examined more closely, reveals itself to be, in substance if not in form, one which ought (if at all) to be considered by the legislature. 170 As, if not more, importantly, a fundamental difference between the approach adopted by the Respondent on the one hand and that adopted by the Appellants on the other lies (as explained above) in the fact that whilst the Respondent is of the view that it is (pace Lord Devlin) appropriate (and, indeed, legitimate) for the legislature to enforce societal morality through 377A, the Appellants are of the (diametrically opposed) view that it is (pace Prof'Hart) inappropriate for the legislature to do so, except to the extent that harm has resulted (or might result) to others. To recapitulate, it will be recalled (see above at [167]) that one of the premises underlying the Respondent?s approach is that it is appropriate and legitimate for the legislature to ascertain what the prevailing societal morality is, and to decide whether or not (in the context of these proceedings) 3 77A ought to be repealed or retained in view of that societal morality. As already noted above (at and the Appellants are of" the view that such an approach simply discriminates against them and deprives them of their fundamental rights, and as a result, 377A is unconstitutional. 171 In our View, there is much force in the Respondent?s argument as just set out in the preceding paragraph. The legislature is an elected body and thus has the mandate from the electorate to promulgate laws which re?ect as well as preserve societal morality. Whilst it might (as is the situation in the present proceedings) be dif?cult to ascertain what the prevailing societal morality on a particular issue is at any given point in time, it is still the legislature ?s task to make this determination. 89 Lint Meng AG [2014] SGCA 53 172 As we understand the Appellants? arguments, even if the prevailing societal morality can be ascertained, giving effect to it through the law (in this case, 377A) would be a violation of the minority ?s constitutional rights as it would constitute the ?tyranny of the majority". However, we have already noted above (at this argument is a doublewerlged one, for it can equally be argued by the majority that there should be no ?tyranny of the minority?. We hasten to add that this is not to endorse the approach that the majority must always prevail. Rather, this brings us back. to the protections embodied in the Articles on fundamental rights in the Singapore Constitution of which Art 9 and Art 12 are the focus of the present appeals. The Appellants must therefore seek to bring their respective cases within the ambit of these two Articles. 173 Put simply, Art 9 and Art l2 would constitute a legal basis on which the Appellants can seek to vindicate their rights. The Appellants cannot ask the court to vindicate their rights based simply and without more on the argument that they feel that the prevailing societal morality is wrong as it deprives them of their ?'eeolom. This is not to state that such an argument carmot be made. But, a moment?s rellection will reveal that in order to succeed in this argument, the Appellants will necessarily need to bring to bear a great number of extra-legal arguments, which, as we have already emphasised, are uniquely within the purview of the legislature. 'l?hese extra-legal arguments include empirical data in the form of; inter alia, surveys (some of which were referred to by both the Appellants and the Respondent in the course of the present appeals) which this court is not equipped to assess. At this particular juncture, the vitally important distinction between the judicial function on the one hand and the legislative function on the other must be emphasised yet again. Put simply, the court cannot and must not attempt to (still less actually) operate as a ?mini?legislature? lest the vital role of the court as an 90 Lint Meng Sitting AG [2014] SGCA 53 independent and neutral institution deciding objectively, on the basis of objective legal rules and principles, the rights which parties have in a particular situation (among other issues) he reduced to naught. 174 Indeed (and consistent with the observations just made), it is also highly significant, in our view, to note that he Wolfenden Report, which (as we mentioned above at [163]) was the effective catalyst of the jurisprudential debate between Lord Devlin and ProfIIart, ultimately led (albeit only a decade later) to legislative action on the part of the UK Parliament (in the form of the Sexual Offences Act 1967 (e60) (UK), which, inter olia, abolished the UK. equivalent of 377A). 175 Let us now turn to yet another extra-legal argument which the Appellants proffered to this court, via, the argument based on immutability and/or the intractable difficulty of change on the part of male homosexuals. (3) The argument based on immutability and/or the intractable difficulty of change 176 Put simply, the Appellants? argument based on immutability andtor the intractable difficulty of change on the part of male homosexuals was this: if the Appellants" sexual orientation was biologically determined, they ought not to be discriminated against via 377A. In particular, Mr Ravi submitted that there was overwhelming evidence supporting the proposition that a person?s sexual orientation was biologically determined. This is primarily a scientific and extreulegal argument which, again, is outside the purview of the court. We agree with the Judge (see Ton Eng Hung (substantive) at that the scientific evidence on this particular issue is contrary to what Mr Ravi submitted unclear inasmuch as there is no definitive evidence pointing clearly to one side of the divide or the other. In any event, as just mentioned, 91 Lint Meng Suang [20 d] SGCA 53 the court is not in a position to arrive at a conclusive detennination on this issue. Again, this argument should if at all be addressed by the legislature instead. (4) The safeguarding ofpublic health 177 It should be noted that the Respondent, in its case before this court (of its case in the court below (see above at did not rely upon the safeguarding of public health. This was, in our view, the correct approach simply because, once again, the court is not in a position to arrive at a conclusive determination in this particular regard. That having been said, we hasten to add that this is by no means an inappropriate argument, but it should if at all be addressed by the legislature instead as it raises what are clearly extra-legal (in. this instance, medical as well as scientific) issues. Summary of our discussion of the Appellants? extrawlegal arguments 178 The underlying thread of our discussion at [l above is clear and may be stated simply: all the arguments re [erred to in those paragraphs are extra?legal arguments that, whilst not necessarily unpersuasive, ought nevertheless to be raised in the appropriate lbrum, which is the legislature. Correlatively, the court is not the appropriate forum to consider such arguments. As emphasised right at the outset of this judgment, only relevant legal arguments can (and should) be considered by the court. it is also important to emphasise that the Appellants are not thereby deprived of the opportunity to proffer the extra-legal arguments they have raised, but they have to do so at. a different forum, rte, before the legislature. At this juncture, it is appropriate to note the following perceptive observations by Lord Reid in the extrajudicial lecture referred to above at [78] (see The Judge As Law Maker at 23): 92 Lim [Weng Huang [2014-] SGCA 53 Now let me come to the real difficulty about judges making law. Everyone agrees that impartiality is the first essential in any judge. And that means not only that he must not appear to favour either party. It also means that he must not take gides on poligical issues. When public opinion is sharply divided on any question whether or not the division is on party lines a- no judge ought in my view to lean to one side or the other if that can possibly be avoided. But sometimes we get a case where that is very dif?cult to avoid. Then i think; we must play safe. We must decide the case on the preponderance of existing authority. Parliament is the right place to settle issues which the ordinary? man regards as controversial. On many questions he will say: ?That is the lawyers? job, let them get on with it.? But on others he will say: ?1 ought to have my say in this. I am not going to accept dictation from the lawyers." [emphasis added in italics, bold italics and underlined bold italics] 179 (Sin a related note, Lord Bingharn of Cornhill, quoting from Lord Reid?s aforesaid lecture, classi?ed the situation where ?public opinion is sharply divided on question? as a situation the question involves an issue of current social policy on which there is no consensus within the community" (see Tom Binghain, ?The Judge as Lawmaker: An English Perspective? in The Business of Judging: Selected Essays and Speeches (Oxford University Press, 2000) ch 2 at and stated that judges should, consequently, refrain t?i?orn making new law in such a situation. Lord Bingham also referred (at 32 of the same work) to another situation where, in his View, judges ought to refrain from making new law, namely: [therc the issue arises in a field far removed from ordinary judicial experience. This is really another way of saying that whereas the Judges may properly mould what is sometimes called lawyers? law, they should be very slow to lay down farareaching rules in fields outside their experience. They should be alert to recognize their own limitations. [emphasis added in italics and bold italics] 180 Indeed, our legislature can, apart from actually abolishing 377A, also effect solutions which are clearly beyond the powers of the court. For example, Ms Barker strongly urged this court (as a possible alternative) to at 93 Lim Meng Huang 11th [20 1 SGCA 53 least delete the words ?or private? in 377A, hence ?reading down? 377A to that extent (see the paragraphs; of Lim and Chee?s Appellants? Case which we referred to above at However, consistent with the analysis set out above, this proposed solution is clearly outside the powers of this court, although it is an approach which can be taken by our Parliament (if it is so persuaded). Our riding on the constitutionality ofs 3 77.4 under Art 12(1) 181 For the reasons set out above, we are of the view that 377A satis?es both limbs of the ?reasonable classification? test. It therefore passes legal muster pursuant to Art 12(1). However, that is not the end of the matter. Consistent with the applicable principles set out earlier in this judgment, and given that a challenge was also mounted to the constitutionality of 377A under Art 12(2), it is now necessary for us to proceed to consider a further and more speci?c issue: although 5 377A does not violate Art 12(1), does it nevertheless fall within the scope of Art 12(2), and if so, does it violate that provision? Whether 377A falls within the scope of Art 12(2), and if so, whether it violates that provision 182 It is clear, in our view, that 377A does not violate Art 12(2) for the simple reason that it does not even fall within the scope of Art 12(2) to begin with. As we have already noted (see above at the words ?gender?, ?sex? and ?sexual orientation? are noticeably absent from Art 12(2). When viewed item a historical context, this is not surprising. in particular, para 33 of the 1966 Report furnishes us with more than a hint as to why Art 12(2) was drafted the way it was. 133 Paragraph 33 of the 1966 Report reads as follows: 94 Lim Slicing AG [2014] SGCA 53 We consider, having regard to the multi-racial, multia cultural, multinlingual and multi-religious composition of the population of Singapore and of its citisens, that Q: recommendgtions we haye outlinedin the pregpding paragraph will not only form an impregnable shield against racial communalism and religious bigotry as well as an effective weapon to wipe away any fears the minorities may harbour concerning discriminatory treatment but will also lay a ?rm and lasting foundation on which to build a democratic, equal and just multi- racial society in Singapore. We accordingly recommend that the present Article 8 [the then Malaysian equivalent of our Art 12] should be deleted and in its place we recommend the following two Articles: an. All persons are equal before the law and entitled to the equal protection of the law. 813. Except as expressly authorised by this Constitution and subject to the provisions of this Article? no law shall make any provision that is discriminatory either of itself or in its effect; and no persons shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority. (2) In this Article, the expression ?discriminatory? means affording different treatment to different persons attributable Wholly or mainly to their respective descriptions by race, place of origin, colour or creed whereby persons of one such description are subject to disabilities or restrictions to which persons of another such description are not: made subject or are accorded privileges or advantages which are not afforded to persons of another such description. (3) Paragraph of this Article shall not apply to any law so far as that law makes provision ?u for the appropriation of the general revenues of Singapore; [in] with respect to persons who are not citizens of Singapore; 95 Lint lilting Strung [2014] SGCA 53 with respect to adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law. (4-) Nothing contained in any law shall be held to be inconsistent with or in contravention of paragraph of this Article to the extent that it makes provision with respect to standards or qualifications (not being standards or qualifications specifically relating to race, place of origin, colour or creed) to be required of any person who is appointed to any office in the public service, any of?ce in a disciplined force, or any office in the service of a body corporate established by any law for public purposes. (5) Paragraph of this Article shall not apply to anything which is expressly or by necessary implication authorised to be done by any such provision of law as is referred to in either of the two preceding paragraphs. (6) For the purposes of paragraph (1M6) of this Article, the certificate of the Attorney?General that the exercise of any discretion relating to the institution, conduct or discontinuance of criminal proceedings in any court that is vested in him or in any other person. by or under this Constitution or any other law has not been discriminatory shall be conclusive and shall not be called in question in any court. [emphasis added in italics, bold italics and underlined bold italics] 184 The last sentence of para 32 of the 1966 Report (reproduced in full above at is also relevant and is, in fact, to in para 33 of the same report (see the text in underlined bold italics in the quotation in the preceding paragraph). The last sentence ofpara 32 of the 1966 Report reads as follows: Lastly, it should also be clearly and categorically laid down that there shall be no discrimination in the administration of any law, except as expressly authorised by the Constitution, against any person on the ground only of race, religion, place of birth or descent. {emphasis added in italics, bold italics and underlined bold italics] 96 Lint Meng Haring AG [.2014] SGCA 53 185 It can be seen that the 1966 Report was concerned, in the main, with the entrenching of fundamental rights relating to race, language as well as religion in a constitutional context. As pointed out in the 1966 Report itsel l'(at para 33), given Singapore?s status as a newly-independent sovereign State at that time, ?an impregnable shield against racial communalism and religious bigotry? [emphasis added] had to be put in place; otherwise, societal division andfor friction on racial, linguistic andlor religious lines could have resulted in an acutely painful (or even fatal) rending or tetn'ing apart of Singapore?s social fabric. That Singapore was (and continues to be) a multi-racial, multi- religious, multi?cultural as well as multi-lingual society meant that it was (and remains) particularly susceptible to such a tragic late if minority rights in relation to race, language and religion are not protected constitutionally. More importantly for the purposes of the present appeals, there was no focus whatsoever on the issue of discrimination based on gender, sex ancUor sexual orientation in the 1966 Report, and hence, no inclusion of these factors as prohibited grounds of discrimination under what is now Art 12(2). It might well be the case that the time is now appropriate for the inclusion of these factors as prohibited grounds of discrimination within our constitutional framework. However, that is a matter which is entirely outside the remit of the court, and must (if at all) be effected (as already explained above at by our legislature via a constitutional amendment instead. Retuming to the present appeals, it is clear, in our view, that given the linguistic as well as historical contexts set out above, 377A (which relates to matters of gender, sex and/or sexual orientation) does not fall within the scope of Art 12(2). For that reason, it cannot possibly be inconsistent with. Art 12(2). 186 Ms Barker argued in her written submissions that domestic law, including the Singapore Constitution, should as far as possible be interpreted 97 Lim Meng Strong [2014] SGCA 53 consistently with Singapore?s international obligations (see Yong Vui Kong at She further argued that one of these obligations was to eliminate discrimination on the basis ol? sexual orientation, and pointed out that our had stated that the Singapore Constitution contained protection l?rom discrimination on this particular basis. In support ol~ this contention, Ms Barker cited Singapore?s ?Responses to the list of issues and questions with regard to the consideration of the fourth periodic report? dated 12 May 2011 to the United Nations? Committee on the Elimination of Discrimination against Women (?Singapore?s 12 May 2011 Response"). Paragraphs 31 and 31.1 ol'Singapore?s 12 May 2011 Response state follows: 31. Please comment on reports with regard to prevalent and systematic discrimination against women based on sexual orientation and gender identity in the social, cultural, political and economic spheres in the State party. What measures are being undertaken to address these problems, especially with a View to destigmatlaing and promoting tolerance to that end. 31.1 The principle of equality of all persons before the law is enshrined in the Constitution of the Republic of Singapore, regardless of gender, sexual orientation and gender identity. All persons in Singapore are entitled to the equal protection of the law, and have equal access to basic resources such as education, housing and healtheare. Like heterosexuals, homosexuals are free to lead their lives and pursue their social activities. Gay groups have held public discussions and published websites, and there are films and plays on gay themes and gay bars and clubs in Singapore. 187 With respect, we do not think there is any merit in this argument by Ms Barker. First, the above extract From para31.1 of Singapore?s 12 May 2011 Response does not in any way suggest that Art 12(2) should be expanded to include protection from discrimination based on ?gender, sexual orientation and gender identity" since it makes no reference to either Art 12(2) or its prohibited grounds of discrimination (viz, race, religion, place of birth and 93 Lim Meng Strong [2014] SGCA 53 descent). The phrase ?equality of all persons bel?ore the law? in the above extract is, in our view, a reference to Art 12(1), under which the ?reasonable classi?cation" test would indeed apply to all persons regardless of ?gender, sexual orientation and gender identity? (see above at 188 Secondly, and more fundamentally, international law and domestic law are regarded in Singapore as separate systems of law, and the lbrmer does not form part oi" the latter ?until and unless it has been applied as or definitely declared to be part of domestic law by a domestic court? (see, in the context l~ customary international law, Yong Vat Kong at [91] as well as the decision of this court in Nguyen Tnong Van at Therefore, for the purposes of the present appeals, Singapore?s treaty obligations under international treaties such as the Convention on the Elimination of All Fonns of Discrimination against Women would not automatically have the effect ol" amending the Singapore Constitution to include new prohibited grounds of discrimination under Art 12(2). Conclusion 189 The present appeals were argued by both Ms Barker as well as Mr Ravi with great passion on behalf of their respective clients. This is not surprising, especially when one takes into account the intensely controversial (and even emotional) nature of the arguments surrounding the nature and function of 377A which have been canvassed by proponents on either side of the extrawlegal divide. Indeed, many of the arguments tendered to this court, whilst valid (or, at least, plausible) in their own right, involved extra?Zegai considerations and matters afsocial policy which were outside the remit ofthe court, and should, instead. have been canvassed in the legislative sphere. It is entirely appropriate, at this juncture, to reiterate a point we have already made 99 .Lim Mei-2g Sitting AG . [20 SGCA 53 several times in the course oi" this judgment, not least because it is an extremely important and fundamental one: the court can only consider legal (as opposed to extra?legal) arguments. This ensures that it will not become a ?mini?legislature?. The court cannot and must not assume legislative functions which are necessarily beyond its remit. To do so would be to efface the very separation of powers which confers upon the court its legitimacy in the ?rst place. If the court were to assume legislative Functions, it would no longer be able to sit to assess the legality oi" statutes From an objective perspective. Worse still, it would necessarily be involved in expressing views on extra?legal issues which would in the nature of things be (or at least be perceived to be) subjective in nature. This would further erode the legitimacy . of the court, which might only to sit to administer the law in an objective 1113.111le . 190 We have carefully considered all the legal arguments tendered to this court in all their various forms (including the relevant historical materials). For the reasons set out above, we dismiss both the present appeals. Given the unusual nature of these proceedings (not least because the decision of this court has implications for male homosexuals or bisexual males who might fall within the ambit of 377A generally), we make no order as to costs both here and below. The usual consequential orders will apply. Whilst we understand the deeply?held personal feelings of the Appellants, there is nothing that this court can do to assist them. Their remedy lies, if at all, in the legislative sphere. 1?7 ll l" Andrew Phaug Boon Leong Belinda Ang Saw Ean Woo Bih Li Judge of Appeal Judge Judge .100 Ce "wilt-ltd or its loopy ?m ft 11/ in!" t-lrivtite {secrets ?y to .lut'lge Andrew l'r?l'tang, Mt ii t1 prcme tilott rt, it i it get pore Lim Meng' Huang AG [201 4] SGCA 53 Deberah Barker SC, Ushan Premaralne and Hg Junyi (KhalizarWeng LLP) for the appellants in Civil Appeal No 54 of 2013; Ravi (L Violet. Nette) for the appellant in Civil Appeal No 125 ef2013; Aedit. Abdullah SC, Seew Zhixiang, Nee Xiulin Sherlyn, Tee Siqi and .lurena Chan Pei Shah (Attei?neyn?eneral?e Chambers) for the respondent in Civil Appeals Hes 54 and 125 of 2013. 10]