The "Limited" Assistance of Foreign Jurisprudence: Lessons from India and the United States on Sexuality and Governance

Abstract

The most recent Singapore Supreme Court decision of Ong Ming Johnson v Public Prosecutor [2020] SGHC 63 follows a slew of unsuccessful constitutional challenges to Singapore’s anti-sodomy legislation, s377A of the Penal Code. Despite growing domestic activism, there is little hope that the provision will be repealed by a conservative Parliament. The onus is therefore on the Singaporean judiciary to abolish this archaic feature of Singapore’s colonial past, and this Note proposes new strategies for challenging s377A. The failure of past s377A challenges does not foreclose the possibility of future success, and Singaporeans may take cues from the successes of United States and Indian litigants in challenging their domestic anti-sodomy laws. This Note adopts a cross-jurisdictional analysis of anti-sodomy challenges and argues for enhanced constitutional protection of the LGBTQ+ community under Art. 9 (right to life and liberty) and Art. 12 (equal protection) of the Singaporean Constitution.