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Section 377A meant to curb male prostitution, not consensual sex

Published

10 years ago

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supreme-court
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.

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Current Affairs

TJC issued 3rd POFMA order under Minister K Shanmugam for alleged falsehoods

The Transformative Justice Collective (TJC) was issued its third POFMA correction order on 5 October 2024 under the direction of Minister K Shanmugam for alleged falsehoods about death penalty processes. TJC has rejected the government’s claims, describing POFMA as a tool to suppress dissent.

Published

12 hours ago

on

6 October 2024

By

The Transformative Justice Collective (TJC), an advocacy group opposed to the death penalty, was issued its third Protection from Online Falsehoods and Manipulation Act (POFMA) correction direction on 5 October 2024.

The correction was ordered by Minister for Home Affairs and Law, K Shanmugam, following TJC’s publication of what the Ministry of Home Affairs (MHA) alleges to be false information regarding Singapore’s death row procedures and the prosecution of drug trafficking cases.

These statements were made on TJC’s website and across its social media platforms, including Facebook, Instagram, TikTok, and X (formerly Twitter).

In addition to TJC, civil activist Kokila Annamalai was also issued a correction direction by the minister over posts she made on Facebook and X between 4 and 5 October 2024.

According to MHA, these posts echoed similar views on the death penalty and the legal procedures for drug-related offences, and contained statements that the ministry claims are false concerning the treatment of death row prisoners and the state’s legal responsibilities in drug trafficking cases.

MHA stated that the posts suggested the government schedules and stays executions arbitrarily, without due regard to legal processes, and that the state does not bear the burden of proving drug trafficking charges.

However, these alleged falsehoods are contested by MHA, which maintains that the government strictly follows legal procedures, scheduling executions only after all legal avenues have been exhausted, and that the state always carries the burden of proof in such cases.

In its official release, MHA emphasised, “The prosecution always bears the legal burden of proving its case beyond a reasonable doubt, and this applies to all criminal offences, including drug trafficking.”

It also pointed to an article on the government fact-checking site Factually to provide further clarification on the issues raised.

As a result of these allegations, both TJC and Annamalai are now required to post correction notices. TJC must display these corrections on its website and social media platforms, while Annamalai is required to carry similar notices on her Facebook and X posts.

TikTok has also been issued a targeted correction direction, requiring the platform to communicate the correction to all Singapore-based users who viewed the related TJC post.

In a statement following the issuance of the correction direction, TJC strongly rejected the government’s claims. The group criticised the POFMA law, calling it a “political weapon used to crush dissent,” and argued that the order was more about the exercise of state power than the pursuit of truth. “We have put up the Correction Directions not because we accept any of what the government asserts, but because of the grossly unjust terms of the POFMA law,” TJC stated.

TJC further argued that the government’s control over Singapore’s media landscape enables it to push pro-death penalty views without opposition. The group also stated that it would not engage in prolonged legal battles over the POFMA correction orders, opting to focus on its abolitionist work instead.

This marks the third time TJC has been subject to a POFMA correction direction in recent months.

The group was previously issued two orders in August 2024 for making similar statements concerning death row prisoners.

In its latest statement, MHA noted that despite being corrected previously, TJC had repeated what the ministry views as falsehoods.

MHA also criticised TJC for presenting the perspective of a convicted drug trafficker without acknowledging the harm caused to victims of drug abuse.

Annamalai, a prominent civil rights activist, is also known for her involvement in various social justice campaigns. She was charged in June 2024 for her participation in a pro-Palestinian procession near the Istana. Her posts, now subject to correction, contained information similar to those presented by TJC regarding death penalty procedures and drug-related cases.

POFMA, which was introduced in 2019, allows the government to issue correction directions when it deems falsehoods are being spread online.

Critics of the law argue that it can be used to suppress dissent, while the government asserts that it is a necessary tool for combating misinformation. The law has been frequently invoked against opposition politicians and activists.

As of October 2024, Minister K Shanmugam has issued 17 POFMA directions, more than any other minister. Shanmugam, who was instrumental in introducing POFMA, is followed by National Development Minister Desmond Lee, who has issued 10 POFMA directions.

Major media outlets, including The Straits Times, Channel News Asia, and Mothership, have covered the POFMA directions. However, as of the time of writing, none have included TJC’s response rejecting the government’s allegations.

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Current Affairs

Hotel Properties Limited suspends trading ahead of Ong Beng Seng’s court hearing

Hotel Properties Limited (HPL), co-founded by Mr Ong Beng Seng, has halted trading ahead of his court appearance today (4 October). The announcement was made by HPL’s company secretary at about 7.45am, citing a pending release of an announcement. Mr Ong faces one charge of abetting a public servant in obtaining gifts and another charge of obstruction of justice. He is due in court at 2.30pm.

Published

3 days ago

on

4 October 2024

By

SINGAPORE: Hotel Properties Limited (HPL), the property and hotel developer co-founded by Mr Ong Beng Seng, has requested a trading halt ahead of the Singapore tycoon’s scheduled court appearance today (4 October) afternoon.

This announcement was made by HPL’s company secretary at approximately 7.45am, stating that the halt was due to a pending release of an announcement.

Mr Ong, who serves as HPL’s managing director and controlling shareholder, faces one charge under Section 165, accused of abetting a public servant in obtaining gifts, as well as one charge of obstruction of justice.

He is set to appear in court at 2.30pm on 4 October.

Ong’s charges stem from his involvement in a high-profile corruption case linked to former Singaporean transport minister S Iswaran.

The 80-year-old businessman was named in Iswaran’s initial graft charges earlier this year.

These charges alleged that Iswaran had corruptly received valuable gifts from Ong, including tickets to the 2022 Singapore Formula 1 Grand Prix, flights, and a hotel stay in Doha.

These gifts were allegedly provided to advance Ong’s business interests, particularly in securing contracts with the Singapore Tourism Board for the Singapore GP and the ABBA Voyage virtual concert.

Although Iswaran no longer faces the original corruption charges, the prosecution amended them to lesser charges under Section 165.

Iswaran pleaded guilty on 24 September, 2024, to four counts under this section, which covered over S$400,000 worth of gifts, including flight tickets, sports event access, and luxury items like whisky and wines.

Additionally, he faced one count of obstructing justice for repaying Ong for a Doha-Singapore flight shortly before the Corrupt Practices Investigation Bureau (CPIB) became involved.

On 3 October, Iswaran was sentenced to one year in jail by presiding judge Justice Vincent Hoong.

The prosecution had sought a sentence of six to seven months for all charges, while the defence had asked for a significantly reduced sentence of no more than eight weeks.

Ong, a Malaysian national based in Singapore, was arrested by CPIB in July 2023 and released on bail shortly thereafter. Although no charges were initially filed against him, Ong’s involvement in the case intensified following Iswaran’s guilty plea.

The Attorney-General’s Chambers (AGC) had earlier indicated that it would soon make a decision regarding Ong’s legal standing, which has now led to the current charges.

According to the statement of facts read during Iswaran’s conviction, Ong’s case came to light as part of a broader investigation into his associates, which revealed Iswaran’s use of Ong’s private jet for a flight from Singapore to Doha in December 2022.

CPIB investigators uncovered the flight manifest and seized the document.

Upon learning that the flight records had been obtained, Ong contacted Iswaran, advising him to arrange for Singapore GP to bill him for the flight.

Iswaran subsequently paid Singapore GP S$5,700 for the Doha-Singapore business class flight in May 2023, forming the basis of his obstruction of justice charge.

Mr Ong is recognised as the figure who brought Formula One to Singapore in 2008, marking the first night race in the sport’s history.

He holds the rights to the Singapore Grand Prix. Iswaran was the chairman of the F1 steering committee and acted as the chief negotiator with Singapore GP on business matters concerning the race.

 

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