Constitutional obiter dicta on male–male sex and fundamental rights in Singapore

Abstract

The Singapore Court of Appeal held a law prohibiting male–male sexual intercourse (s 377A of the Penal Code) unenforceable on non-rights-based grounds. The court's remarks about the rights to life and liberty (including whether sexual orientation is mutable), freedom of expression, and equality are obiter. But they are significant, since in Singapore, there are few constitutional rights cases and the courts focus on spelling out the limits to executive and legislative power without necessarily striking down exercises of such power on rights grounds. Indeed, the obiter dicta prompted the Legislature to repeal s 377A. Given the repeal, the obiter dicta about constitutional rights have receded into the background of public discourse. This article refocuses attention on these dicta, unpacking them in their constitutional, sub-constitutional, and societal context and critically analysing their implications, and presenting them as a case study about the role of obiter dicta in rights adjudication generally.