By Atticus -
Do you need to be prosecuted under an unconstitutional law before you have the required legal standing to challenge it?
After deliberating for over 1 year, the Court of Appeal has decided in a landmark decision that you don’t:
“Individuals cannot be required to breach the law in order to gain access to justice”.
Earlier today, the Court of Appeal overruled the High Court and ruled that Tan Eng Hoon, represented by M. Ravi, had the requisite standing (or, in legalese, locus standi) to pursue his claim that Section 377A was unconstitutional.
377A will have its’ day in Court
On 9 March 2010, Tan and another man were arrested under Section 377A, for engaging in oral sex in a cubicle in a public shopping mall toilet. Each was later charged for committing an act of gross indecency with another male person under Section 377A.
Tan then applied to court for a declaration that Section 377A was unconstitutional.
Three weeks after he filed his application, the AG substituted the Section 377A charges against Tan and his co-accused, with charges for the commission of an obscene act in a public place under Section 294(a) of the Penal Code.
The AG then applied to strike out Tan’s constitutional challenge on the basis, amongst other grounds, that it disclosed no reasonable cause of action and was an abuse of the process of Court.
The attempt to strike out Tan’s constitutional challenge would essentially have meant that the merits of the constitutional challenge would never be fully ventilated in Court: it would have died a procedural death.
An Assistant Registrar granted the AG’s application in December 2010. Tan appealed. When Justice Lai Siu Chu of the High Court upheld the assistant registrar’s decision, Tan appealed further to the Court of Appeal.
In the meantime, both Tan and his co-accused had already pleaded guilty to the obsenity charges, and each was sentenced to a $3000 fine.
377A “affects the lives of a not insignificant portion of our community in a very real and intimate way”
The Court of Appeal has now found that Tan was entitled to continue with his constitutional challenge to Section 377A.
Delivering the court’s judgment, Judge of Appeal V.K. Rajah was careful to highlight that the Court of Appeal was only making a ruling on a preliminary point, and was not ruling on the substantive merits of Tan’s application at all.
In other words, the court only found that Tan had an “arguable” case that Section 377A is unconstitutional, and did not conclude that it was in fact so.
However, advocates for repeal will have good reason to cheer this decision.
Despite not making a ruling on the merits of the constitutionality, the Court of Appeal contextualized the question of Section 377A for the High Court to now consider when adjudicating the merits of the 377a challenge in a manner that can be interpreted as sympathetic to cause of repeal:
“Without going into the merits of the Application, we want to acknowledge that in so far as s 377A in its current form extends to private consensual sexual conduct between adult males, this provision affects the lives of a not insignificant portion of our community in a very real and intimate way. Such persons might plausibly assert that the continued existence of s 377A in our statute books causes them to be unapprehended felons in the privacy of their homes. The constitutionality or otherwise of s 377A is thus of real public interest. We also note that s 377A has other effects beyond criminal sanctions. One unwanted effect of s 377A is that it may also make criminals out of victims. We will list three illustrations to highlight this point. First, a man who suffers domestic abuse at the hands of his male partner may be reluctant to report it to the police as police investigations may reveal that he (ie, the victim of domestic abuse) is guilty of an offence under s 377A. Second, if a man who has been sexually assaulted by another man reports this to the police, he may lay himself open to a s 377A charge as s 377A is silent on consent. While a charge in such a scenario may be unlikely, the fear of being charged may be sufficient to deter some victims from coming forward. Third, lest it is thought that these scenarios are fanciful, we refer to a reported incident where a man who was robbed after having sex with another man reported the theft to the police and received a warning under s 377A (see “This teacher was caught having sex in public, police tells school”, The New Paper (21 February 2005)).”
Of broader relevance to the public at large, the judgment has also laid down clear guidelines for when people are entitled to file applications to challenge potentially unconstitutional laws.
The long and short of it is that so long as one’s constitutional rights are potentially violated by a law, and there is some benefit to having it resolved (i.e. the question is not purely theoretical), one would generally have the right to file a constitutional challenge.
The Court rejected the AG’s argument that the Government’s legally non-binding assurances of non-prosecution are sufficient, stating:
“if a law is unconstitutional, selective prosecution under that law is not an answer as no prosecutions whatsoever should be brought under an unconstitutional law…the very fact of a real and credible threat of prosecution under such a law is sufficient to amount to an arguable violation of constitutional rights, and this violation gives rise to a real controversy for the court to determine”.
The author writes under a pseudonym for professional considerations.