By Ariffin Sha
After a 4-year legal battle to have the case heard, the Court of Appeal on Monday began deliberations on the constitutionality of Section 377A of the Penal Code, a controversial law that criminalises sex between two males.
The application was filed by 51-year old Tan Eng Hong through his lawyer, M Ravi.
Arrested and charged under Section 377A
Tan and another man were charged under the 76-year old Section 377A in 2010 for engaging in oral sex in a public toilet in a shopping centre. The men faced up to two years’ imprisonment.
In September of 2010, Tan’s lawyer, M Ravi, lodged a challenge in the courts on the constitutionality of Section 377A.
A month later in October, the prosecutor withdrew the charge and substituted it with one under Section 294 – commission of an obscene act in public.
Both accused pleaded guilty to the new charge and were fined S$3,000 each.
However, the constitutional challenge to Section 377A proceeded, and in 2012, the Court of Appeal overturned an earlier judgement by the High Court that there was no “real controversy” which required the court’s attention – meaning that it was not a matter of importance to be decided by a court.
In what was a momentous judgement, the 3 Court of Appeal judges – Andrew Phang, VK Rajah and Judith Prakesh – said that as the current law extends to private consensual sexual conduct between adult males, it “affects the lives of a not insignificant portion of our community in a very real and intimate way.”
The judges, however, made it clear that they were “not deciding here that 377A is inconsistent with Art 12” of the Constitution.
“We are merely deciding that it is arguably so,” it said.
A matter of “real public interest”
The apex court said that the issue of whether Section 377A was constitutional was a matter of real public interest and that the “continued existence of Section 377A in our statute books causes them (gay men) to be unapprehended felons in the privacy of their homes.”
The judges’ decision set the stage for a “full-blown battle to knock out Section 377A”, Mr Tan’s lawyer, M Ravi, said at the time.
One of the judges who laid down that judgement, VK Rajah, has since been appointed Attorney General.
In 2012, following the judgement by the Court of Appeal, gay couple Gary Lim and Kenneth Chee, filed a similar challenge in the courts.
The two cases – that of Tan and the couple – were ordered by the courts to be heard together at the Court of Appeal, which took place this week on Monday and Tuesday.
Social policy or constitutionality?
One of the questions posed to Mr Ravi by the judges was whether the court was being asked to decide on “social policy.”
Judge Andrew Phang said the court was not a legislature. The decision to void the statute was up to the Parliament, which also, unlike the court, has the right to decide social policy, he said.
Mr Ravi, who is representing Mr Tan, argued that he was not asking the court to decide on questions of social policy but to deal with the issue of whether Section 377A unlawfully discriminates against a segment of society.
“To characterise the potential violation of a fundamental right against a not insignificant segment of society as a matter of social policy that is up to the legislature is to completely disregard the function of this court,” he said.
“This case is squarely a matter of constitutional law,” he said. “The legal issue the court is constitutionally mandated to determine is whether 377A unlawfully discriminates against a segment of our society.”
Mr Ravi argued that homosexuality was a fundamental aspect of human personality. He also noted that former Prime Minister Lee Kuan Yew, Prime Minister Lee Hsien Loong, the Singapore Ministry of Health and the Health Promotion Board have all taken the position that sexual orientation is a fundamental attribute.
Mr Ravi said Section 377A infringes on the right to equality under Article 12 and violates the rights of gay people to life and personal liberty under Article 9 of the Constitution.
Article 9 renders unlawful any deprivation of personal liberty unless it is authorised by a legal rule which is clear and precise.
Instead, Mr Ravi said “Section 377A is incapable of justifying detention because it is vague, arbitrary and absurd.”
Article 12(1) provides a general guarantee of equality before the law and equal protection of the law. It applies to all persons and ensures that people in like situations are treated alike under the law.
However, Mr Ravi argued gay males and lesbians were treated differently under the law – Section 377A only criminalises sex between males, but not between females.The point was also raised by the lawyer for Lim and Chee, Senior Counsel Deborah Parker, in her submissions.
Ravi argued that since Section 377 itself has been repealed by the government (in 2007), section 377A cannot stand as Section 377a was meant to cover what was not covered by Section 377.
Section 377 had outlawed oral and anal sex – without defining that this only applied to homosexuals.
Historical documents provide clarity
Copies of historical documents which were circulated by the Court of Appeal to both parties also raised questions on the purpose of Section 377A.
The documents suggest that Section 377A may have been enacted in 1938 to stamp out male prostitution and not to prosecute the private acts of consenting adults.
Ms Barker said that this inference was in line with the fact that the first reported offence under Section 377A involved a captain prosecuted for acts with a male prostitute at his home in 1941.
Responding, Mr Aedit Abdullah, from the Attorney-General’s Chambers, strongly cautioned against drawing any conclusion as the documents in question may not give the full picture.
Mr Ravi responded that his client’s position was that the court can refer to these archival documents because they “may well have been the position that Section 377A was never intended to criminalise consensual conduct between adult males in private such as in loving homosexual relationships.”
Mr Ravi said, “It would be inimical to justice if the court were simply to ignore documents on the historical record in construing a provision that is at best difficult for anyone to understand (including the parties to this proceeding and the Court, not to mention anyone trying to regulate their behaviour in accordance with it).”
Section 377A meant to curb male prostitution
The documents, he explained, showed that before the enactment of Section 377A, there was “widespread existence of male prostitution” which “was discovered and reported to the Government.”
In 1937, the government resolved to institute “a policy … to stamp out this evil”.
Mr Ravi explained, “In 1938, Section 377A was passed. It was said in the 1938 Annual Report [page 414, paragraph 48] that ‘male prostitution and other forms of beastliness were stamped out as and when opportunity occurred.’ It was clear that this was done under force of law.”
As such, Mr Ravi argued, Section 377A “was indeed to capture instances of male prostitution.”
Thus, it “was never intended to criminalise consensual conduct between adult male couples not engaged in transactional sex”, he said.
“As such,” Mr Ravi continued, “it cannot include such consensual conduct today and what is needed for clarity and finality on this long-unresolved and vexed matter is for the court to declare, at a minimum, that Section 377A does not criminalise consensual sexual intimacy between adult males.
“Thus, ‘gross indecency between males’ captures transactional sex and nothing more.”
In conclusion, Mr Ravi said the issue at hand are legal issues: does the criminalisation of a segment of society based on a fundamental characteristic violate the supreme law of this land.
“We submit, Your Honours, that it clearly does, and therefore Section 377A should be struck down.”
The court-comprising Judge of Appeal Andrew Phang, Justice Belinda Ang and Justice Woo Bih Li reserved judgement and will deliver its decision at a later date.
Additional reporting by Andrew Loh.