Singaporean DJ files constitutional challenge against Section 377A

A court challenge has been filed on constitutional grounds against Section 377A, a provision in the Singapore Penal Code which criminalises sexual activity between two men, by internationally renowned Singaporean disc jockey (DJ) and Pink Dot SG ambassador Mr Johnson Ong Ming on Monday (10 Sep).

Mr Ong Ming, or better known by his stage name DJ Big Kid, filed the challenge just four days after the Supreme Court of India struck down a similar legislation in a landmark decision that made waves worldwide, as it signals a shedding of one of the final bastions of British colonialism in India.

Homophobic legislation in Commonwealth countries, including India and Singapore, finds its roots in Victorian-era “morality”.

Mr Ong, who is in a relationship with another man, said he was aware of the court ruling in 2014 that rejected the constitutional challenge filed by Mr Tan Eng Hong and gay couple Mr Gary Lim and Mr Kenneth Chee who had also argued that Section 377A was discriminatory.

However, he argued that given the global legal and judicial developments concerning same-sex relationships and activity since then, particularly India’s recent Supreme Court ruling, the Singapore courts should also depart from that precedent.

He will also reference a 2015 report by the United States Substance Abuse and Mental Health Services Administration which argues that “sexual orientation is unchangeable or suppressible at unacceptable personal cost” in his challenge.

Mr Ong also highlighted that Section 377A only penalises gay men and not gay women despite the similar nature of their relationships and activity, and thus violates the right to equality enshrined in Article 12 of the Singapore Constitution.

Counsel Mr Eugene Thuraisingam will be acting pro bono on behalf of Mr Ong against the Attorney General, and a pre-trial conference has been scheduled to take place on 25 Sep.

Speaking to The Straits Times, Mr Thuraisingam said: “We will be presenting medical and scientific evidence to show that sexuality is inherent and is not a choice,” noting that the previous challenge in Singapore did not deal strongly with this point.

Should his point that sexual orientation is innate be successfully proven, it follows that Section 377A will contradict Article 9 of the Singapore Constitution, which guarantees life and personal liberty, argued Mr Thuraisingam.

However, it was previously held by the court that Section 377A did not contradict Article 9 of the Singapore Constitution, as the phrase “life and liberty” is only to be used in reference to the protection of the personal liberty of a person from unlawful incarceration, and not to the right of privacy and autonomy in personal relationships.

Section 377A of the Singapore Penal Code states that “any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to two years.”

In the 2007 Penal Code review, the provision was retained, and whether the act was performed privately or publicly was of no relevance from a legal standpoint in terms of prosecuting men who engage in the acts listed in Section 377A.

Ambassador-at-Large at the Ministry of Foreign Affairs, Professor Tommy Koh, has previously raised the prospect of initiating a new court challenge against Section 377A, following India’s Supreme Court decision.

Petitions campaigning for the repeal of Section 377A have also attracted large numbers of signatories, particularly in wake of the repeal of Section 377 by the Indian Supreme Court. A petition by Mr Gabriel Tang-Rafferty addressed to the Singapore Government has pulled in 17,610 signatories out of the targeted 25,000 as of today (12 Sep). Another petition called #Ready4Repeal, which was started by Mr Glen Goei and Mr Johannes Hadi, has gained 32,062 signatures as of today. The latter petition’s lead signatories include Banyan Tree Holdings founder and CEO Mr Ho Kwon Ping, and Member of Parliament Mr Kok Heng Leun.

In contrast, a petition called “Please Keep Penal Code 377A in Singapore” was started by Paul P, and has garnered 94,486 signatures out of its targeted 150,000 as of today, aimed at Singaporeans, who, like himself, believe that “the vocal minority” should not “impose their values and practices on the silent majority who are still largely conservative,” and that marriage should only still be “an acceptable norm between a man and a woman”.

Minister of Law Mr K. Shanmugam highlighted in response to the heated debate that the majority of Singaporeans are “opposed to any change to Section 377A,” particularly the prospect of having the legislation repealed, as Singapore society is still considered to be fairly “conservative” at large for a secular, cosmopolitan state.

However, he notes that a “growing minority” is opposed against the retention of Section 377A.

“The Government is in the middle,” he said, adding: “Can you impose viewpoints on a majority when (the issue is) so closely related to social value systems?”

Mr Shanmugam added that while he personally believes that care has to be taken against criminalising lifestyles and sexual attitudes, he also believes that it would be “wrong” for him to “impose” his “personal views on society,” particularly “as a policymaker”.