A new challenge of Section 377A of the Penal Code is being brought to Singapore’s High Court, this time by Mr Bryan Choong, former executive director of non-profit organisation Oogachaga, looking to repeal the law on several grounds.
This is the first of three cases against Section 377A which will come before the High Court in November. The other is an action brought by DJ Johnson Ong Ming and another by veteran LGBT activitst and retired general practitioner Roy Tan.
In written submissions by Mr Choong’s lawyers, it was argued that the court didn’t consider colonial documents from the UK National Archives when making a judgement in the previous challenge of the constitutionality of 377A made in 2014 by then-graphic designer Lim Meng Suang and his partner.
Those documents, which were declassified between 2014-2016, show that the original purpose for Section 377A enacted by the colonial rulers of Malaya was to combat male prostitution, not discriminate against male homosexuals, argued Mr Choong’s lawyers.
The legal team includes Senior Counsel Harpreet Singh Nehal of Audent Chambers, Mr Jordan Tan of Cavenagh Law and Mr Remy Choo Zheng Xi, Mr Wong Thai Yong and Ms Priscilla Chia Wen Qi of Peter Low & Choo.
Their arguments were heard by Justice See Kee Oon on Wednesday (13 November).
In their case, the lawyers also referenced the opinion of former chief justice Chan Sek Keong on Section 377A which was laid out in a 72-page article published in the Singapore Academy of Law journal last month.
The argument laid out archival documents from the UK which show correspondences between government officials in Britain with colonial officers in the Straits Settlement, dating back to 1938.
The lawyers said that Section 377A was passed in the Legislative Council of the Straits Settlements to combat the widespread problem of male prostitution in the area, especially among British civil servant. Singapore later inherited this law.
They also argued that the full text of Section 377A covers any male person who “abets the commission of, or procures or attempts to procure the commission by any male persons” of such acts – referring to acts of “gross indecency”. This, they said, is in line with the purpose of the law to deal with prostitution as it covers pimps and traffickers.
The lawyers noted that these documents were not considered by the Court of Appeal back in 2015 when it dismissed another challenge on 37AA by Mr Lim Meng Suang.
Another point presented by the legal team was that Section 377A did not cover penetrative sex, only non-penetrative acts of “gross indecency”, which they supported by citing the 1938 speech of then-Attorney-General Charles Gough Howell to the Legislative Council of the Straits Settlements.
Mr Howell had said in this speech that 377A was necessary. He said, “As the law now stands, such acts can only be dealt with, if at all, under the Minor Offences Ordinance, and then only if committed in public.”
Mr Choong’s legal team said that as penetrative sex was already covered by Section 377, carrying with it a heavier sentence of up to 10 years in jail and a fine, Section 377A serve no legislative purpose given that it carries a lighter sentence of up to two years in jail and no fine.
The team also noted that the now-declassified documents revealed that Section 377 was used to press charged in cases of penetrative sex including cases involving male prostitutes.
Going further, they argued that 377A is incompatible with Article 12 and 14 of Singapore’s Constitution. Article 12 provides equality under the law while Article 14 grant freedom of expression.
The lawyers noted that Article 12 requires discriminatory laws to distinguished between those it covers and those it does not, based on “intelligible differentia”, and have rational relation to the objective of the law.
They added that even if the court finds that there is a difference between gay men and straight men, that fact has no rational relation to the objective of the law which, as they said before, was intended for commercial sex.
As for argument on the freedom of expression, the team cited court rulings in other countries around the world which have ruled that sexual intimacy is a form of free expression – countries like Canada, Belize, India, Trinidad and Tobago, Botswana, and Hong Kong.
As for Singapore, they said that Article 14 of the Consitution grants freedom of expression but stipulates that only the country’s Parliament can introduce such laws.
Given that 377A is a piece of pre-independence legislation which Singapore inherited and not passed by Singapore’s parliament, it cannot fall within the scope of Article 14’s exception.
The judge will continue to hear arguments later on 15 November.