Tuesday, 26 September 2023

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Section 377A of Penal Code upheld in Constitutional challenge

 M ravi court
The Court of Appeal today rejected two separate Constitutional challenges to Section 377A of the Penal Code, the law that criminalises sex between men, maintaining that the law does not contravene Singapore’s Constitution.
Judges Andrew Phang, Belinda Ang and Woo Bih Li, the three-judge in the Court of Appeal, rejected the two challenges that sought to strike down the law.
Tan Eng Hong, 51 had mounted the first challenge in 2010 after he was charged with having oral sex with another man in a public toilet. Gay couple Gary Lim, 46 and Kenneth Chee, 38 mounted the second challenge.
Both cases contended that the provision is discriminatory and should be declared void by the court, as it infringes their right to equal protection under the law, as guaranteed by Article 12 of the Constitution, and violates their right to life and liberty, as guaranteed by Article 9.
However, the court held that Section 377A did not violate Article 9 as the phrase “life and liberty” referred only to the personal liberty of a person from unlawful incarceration, not their right of privacy and personal autonomy.
The court also ruled that Section 377A fell outside the scope of Article 12, which forbids discrimination of citizens on grounds of religion, race and place of birth, but with no mention of “gender”, “sex” and “sexual orientation”, which related to Section 377A.
The following is the media release issued by lawyer M Ravi’s office. Mr Ravi has been representing his client Mr Tan Eng Hong, and had called the ruling a “huge step backwards for human rights in Singapore”, and an “unequal treatment in the law.”

Today, in a huge step backwards for human rights in Singapore, the nation’s highest court released a judgement in the Constitutional challenge of statute 377A of the Singapore Penal Code, upholding the law which makes intimacy between men an arrestable offence. In today’s judgement, Justices Andrew Phang, Belinda Ang and Woo Bih Li have found that the statute has not infringed the rights of the appellant, Mr Tan Eng Hong, and is not inconsistent with Articles 9 and 12 of the Constitution of the Republic of Singapore, which ensure that one will not be deprived of his life or personal liberty save in accordance with law and that all persons are equal before the law and entitled to the equal protection of the law, respectively.
Mr Tan’s challenge has been before the Courts for 4 years and its precedent could be far-reaching, as today’s decision has legitimised discrimination against gay men and approved the criminalisation of the conduct of their private lives by statute. Over the coming months, this judgement will be read closely by Constitutional scholars and human rights activists to examine whether this could open the door for Parliament to pass legislation that in effect violates the fundamental rights of a segment of society as a matter of social policy and establishes that the Court will not exercise its duty to safeguard the Constitutional rights of those affected.
“This judgement comes as a huge shock to us, as statute 377A is particularly aimed at criminalizing gay men, whilst female homosexuals are treated differently under the law simply because our society disapproves of one group over another. This unequal treatment in the law is based on hatred for hatred’s sake and discrimination for discrimination’s sake and nothing else,” states Mr M Ravi, Mr Tan’s lawyer who has acted pro bono in this matter for more than 4 years.
“Under this law, there is a real risk that homosexual men will be imprisoned for who they are, as recognized by the preponderance of medical science that homosexuality is an innate quality. This is further recognized by the Singapore Health Promotion Board as well as the Prime Minister of Singapore, Mr Lee Hsing Loong and the former Prime Minister Mr Lee Kuan Yew.”
“It appears that this absurd and discriminatory law criminalizes the core aspect of an individual’s identity, in this case, homosexual men. What is even more disturbing is that the Supreme Court has now thrown this issue back to Parliament, when other Commonwealth countries have struck down this legislation as discriminatory and absurd relic of the Colonial past.”

Judgment passed on the two appeals.
Judgment 29.10.14.

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