Exorcising specters: The issue of 377A

Claudia Petrat/

We’ve returned as Sisyphus might to the symbolic boulder that is Section 377A of the Penal Code. That was the reason the Supreme Court was abuzz on the morning of Tuesday 27 September, when human rights lawyer Mr M. Ravi delivered his case before the Court of Appeal.

The topic at hand should be familiar enough – whether Section 377A is, in fact, unconstitutional and impeding on the rights of gay men in Singapore.

This time, a different route was being taken – via the judiciary, where the case of Tan Eng Hong might result in the lawfulness of Section 377A finally being heard before a court.

In this case, two men were arrested for sex in a public toilet and charged under Section 377A. Those charges were later replaced by charges under Section 294 of the Penal Code – committing an obscene act in a public place – to which both men had pleaded guilty.

Before the charges were dropped however, Mr Ravi had already filed a constitutional challenge against Section 377A on behalf of his client. The hearing on Tuesday was to determine if the courts would hear the merits of Mr Ravi’s argument; the Attorney-General’s Chambers had, in the lower courts, successfully argued that this constitutional challenge should not continue since Mr Ravi’s client no longer faced a prosecution under Section 377A.

Delivering his speech to a packed courtroom, Mr Ravi maintained the stance he has held throughout – that Section 377A is essentially a violation of Articles 9 (liberty of the person) and 12 (prohibition against discrimination) of the Constitution of Singapore, thus rendering it void by way of Article 4 of the Constitution. Because of this and the fact that his client faces a real threat of future prosecution, he ought to be able to bring forth this constitutional challenge.

Citing the earlier Singapore precedent of Colin Chan and drawing examples from common law jurisdictions such as Hong Kong, Mr Ravi delivered a solid argument on the reasons why his client had the legal standing to challenge Section 377A, and why it was in the interest of the courts to listen to the substantive merits of this challenge.

After neatly summarizing Mr Ravi’s arguments, the esteemed judges turned their full attention on to the prosecution. They grilled the prosecution on their submission that there was “no real controversy” in this matter.

The prosecution’s argument goes that because the charge under Section 377A against Tan Eng Hong had been dropped, he faces no real threat of prosecution and therefore has no standing to challenge the section.

They went on to state that despite the existence of Section 377A in the statute books, the Government has expressed that its policy is to not prosecute under this section except in exceptional circumstances. Therefore, Tan, and other gay men, really have nothing to complain about.

Justice V.K. Rajah was quick to challenge this by suggesting that there is always the “spectre of prosecution in the future” and the “spectre of fear that they may be prosecuted [and remain] un-apprehended felons in the confines of their own home”. Justice Andrew Phang added that the prosecution could not give a binding promise that nobody would ever be prosecuted under Section 377A, and the fact was that charges could be brought under it so long as it remained in the statute.

What was evident was the prosecution’s glaringly erroneous and tautological argument, which might be summed up in their assertion that the case dealt with “spectres that are not real”.

So what happens next?

There are three possible outcomes:

1. The case is dismissed for a lack of standing by Tan Eng Hong

This would, however, be going against the Court of Appeal’s earlier decision in Colin Chan, where it was held that a citizen need not wait to be prosecuted before challenging the constitutionality of the law. In this instance, the court may well rely on an “opening the floodgates” argument to explain its decision. The result would be to pass this issue back to Parliament.

2. The Court of Appeal allows the challenge to continue, but it eventually fails on the merits

In this scenario, the court allows the constitutional challenge to continue; in that case, there will be another hearing where the substantive merits of the challenge will be fully heard and argued; but the court in that subsequent hearing finds that Section 377A is not incompatible with the Constitution.

To date, this writer is not aware of a successful constitutional challenge against a law in Singapore. But the silver lining in this outcome would be the continued visibility of the issue in various avenues.

3. The Court of Appeal allows the challenge to continue, and it eventually succeeds on the merits

This would be unprecedented and revolutionary, and will be a milestone in judicial history in Singapore. Many would celebrate such a new dawn in Singapore.

There are many more mountains to cross in this seemingly Sisyphean struggle. However, the judges’ robust approach in Tuesday’s hearing showed their willingness to consider this matter in a sensitive and receptive manner. In any case, the outcome of this challenge will hold many interesting implications for Singapore’s continued progress towards becoming a mature democracy.

The writer is a final-year law student in Singapore

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