S377A – Tan Eng Hong will have his day in court

Media Release

Court rules that the original challenge to s377A will be heard in up-coming appeal

SINGAPORE, October 10, 2013– Today the Court of Appeal ordered that Mr Tan Eng Hong, who has been pursuing a Constitutional Challenge to Singapore’s anti-gay law for more than three years, should be allowed to appear before the Court with Mr Kenneth Lim and Mr Gary Chee, who applied more recently to challenge the same statute.

While hearing the arguments presented today by Mr M Ravi, lawyer for Mr Tan, Ms Debra Barker, counsel for Mr Lim and Mr Chee and the Attorney-General’s Chambers, represented by Mr Aedit Abdullah, the Justices recognized that the points of Constitutional Law were so closely related in the two appellant’s matters that there were no sufficient grounds that their appeals should not be consolidated, as Mr Tan had requested.

Justice Rajah noted that it was unfortunate that the judgement had been delayed in Tan’s case. This is given the fact that he was the first Singapore citizen to launch the challenge to s377A of Singapore’s Penal Code 3 years ago. The Court of Appeal also made observations that if they should decide that Lim and Chee have no standing, given the fact that they were neither charged nor prosecuted under s377A, unlike Tan, their appeal could be dismissed on that ground alone, without having to consider the main arguments of their case.

“This gives greater hope for the s377A challenge to succeed because Tan was given standing by the Court of Appeal in 2012 when he won he previous appeal. This further reinforces Mr Tan’s critical role in the challenge to overturn this anachronistic legislation which is a sad remnant of colonial law” stated Mr Ravi, who has acted as Mr Tan’s pro bono counsel in this matter for more than 3 years. “Mr Tan has made immense sacrifices from all fronts to pursue justice and has been resolute in his belief that justice will be done and his fundamental rights will be protected under the constitution. He believes the Court will recognize his immutable personal sexual orientation and recognize his right to live with dignity in this society.”

Mr Tan is encouraged that he is able to continue and finish this challenge, which was initiated by him, and that his efforts have been recognized today with the justices’ determination that he should have his day in Court.

Mr Ravi presented the following arguments in his address to the Court this morning as grounds for the consolidation of the appeals:

1. It is desirable in the interests of the orderly and efficient administration of justice that unnecessary duplication of hearings before the Courts be avoided where possible. The Court will likely be faced with hearing the same issues twice unless the appeals are heard together.
2. It is desirable where a common issue of law arises on two appeals, especially one involving Constitutional issues of intense public interest and concern, that all relevant arguments and materials are presented to the Court at the same time so that the matter can be considered comprehensively and not piecemeal.
3. Even though the Court of Appeal has jurisdiction to depart from its own decisions., this is not done lightly and where an appeal has been heard and determined, the onus of having that same issue  decided differently would be heavy to the point of possible prejudice, and where this can be avoided through a concurrent listing, it is desirable to do so.
4. It is self-evident that allowing the consolidation would have the beneficial effect of preventing multiplicity of actions and preventing the same questions of law and constitutional issues from being resolved on separate occasions with potentially different results. This is clearly in the interests of procedural fairness and efficiency.