Section 377A of Penal Code upheld in Constitutional challenge

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 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.

  • Thinker

    I can see Singapore flag flying half mast in spirit. It is indeed a sad day for many Singaporeans and it is indeed personal to many LGBT.

  • Albert_HFM

    We’re on the wrong side of history on this issue.

  • ASE

    “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.”

    Okay! We can discriminate people based on gender now! In fact, we can discriminate on any grounds at all, where you live, what you do, how you eat, since all that is not covered by Article 12! Thank for clearing that up Supreme Court!

    • Madison Chua

      Exactly. Article 12 didn’t mention “gender”, “sex” and “sexual orientation”. Then what about discrimination based on disability? Article 12 didn’t mention that too. On age? Discrimination on pregnancy? Article 12 also never mentioned those so is it okay to discriminate based on gender, age, disability, marital status, physical features, pregnancy and ailments? Please tell us, and tell the world!!!!

      • Filbert Lam

        Article 12 states, “(2) Except as expressly authorised by this Constitution, there shall be no discrimination against citizens of Singapore on the ground only of religion, race, descent or place of birth in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.”

        There are two parts to this provision, first the bit that states “on the ground ONLY of religion…”, and the second which is “except as expressly authorised by this Constitution”.

        Unless discrimination is expressly authorised in the Constitution, any sort of discrimination is unauthorised.

        Further, if you have actually read the provision, it only outlaws discrimination with regards to:
        (1) “appointment to any office or employment under a public authority” OR
        (2) “in the administration of any law relating to the acquisition, holding or disposition of property” OR
        (3) “carrying on of any trade, business, profession, vocation or employment”.

        It is not simply merely “no discrimination allowed” in general terms. Article 12 refers to equal protection under very specific circumstances, laid out in Article 12(2).

    • Sicko

      It sound like we cannot discriminate religion under Article 12, but S377A allows religion to discriminate sexual orientation. Religion can thus rule this country, no wonder war is everywhere. There won’t be peace nor grace to speak of. It looks dark in this part of the world.

      • JT

        You don’t have to believe that religion, right?

  • Madison Chua

    Article 12 is interesting. Then what about discrimination based on gender? On age? On Disability? Discrimination on pregnancy? Article 12 also never mentioned those so is it okay to discriminate based on gender, age, disability, marital status, physical features, pregnancy and ailments? Please tell us, and tell the world!!!!

  • Alan

    Just wonder hor … why of all things you want to have homo sex in a public toilet? Some more get caught?

    And now because you get caught, you wanted to axe the law that safeguard us against your kind of act in full display.

    And all of you are supporting that claiming discrimination!

    If you were successful will we have more homosexual scene in public viewing? Will we have more passion among gays displaying in front of us?

    Is this another display of selfishness again when the minority try to force their view on the majority through legal mean.

    Is there any due respect that we have to Co exist in this little island where we can live comfortably without imposing our inconvenience to another?

    When you are claiming human rights to one individual, should we deprive human rights to other party?

    As a disclaimer I’ve no discrimination against the 3rd gender.

    • JT

      They just want to be in-your-face, man! By the way, Alan, you do not need to qualify whether you discriminate or not. Free speech, remember? So long as not hate speech.

      • Alan

        Just a note to keep me away from stupid questions on why I discriminate or anything! They’ll attack me with everything irrelevance.

  • Judges, shame on you for your woeful refusal in giving recognition
    to the existence of a clear-cut discriminatory legislation prevailing for years
    in our legal system.
    What hope can we have when people with years of legal training
    and practice cannot think rationally?