Dr Roy Tan (left) and his lawyer, M Ravi in front of the Singapore Supreme Court building.

Second 377A challenge: Arbitrary enforcement and investigation of Section 377A makes it unconstitutional

Section 377A of the Singapore penal code is a colonial-era law which criminalises acts of “gross indecency” between men, carrying a penalty of up to two years imprisonment. It has been a matter of debate in Singapore and the region for years, especially recently with countries like India repealing their version of 377A and Taiwan legalising same-sex marriage.

This year, there are constitutional challenges on Section 377A being heard in the Singapore Courts. The first challenge Mr Bryan Choong, was heard last week on 14 November. The second and third were heard on Monday, 18 November.

One of the challenges heard on Monday was for the case brought by Dr Roy Tan, a retired general medical practitioner and long-standing advocate of LGBTQ+ rights in Singapore. In a statement in September, Dr Tan described the law as “archaic and discriminatory”.

Representing Dr Tan is human rights lawyer M Ravi, who addressed the court on their arguments which centred on Article 9(1) of the Constitution that says “No person shall be deprived of his life or personal liberty save in accordance with law”.

In a statement to the media, M Ravi notes that one of the arguments in the challenge is that the arbitrary nature of the enforcement of 377A renders it arbitrary in a way that it does not constitute ‘law’ within the meaning of Article 9(1), making it unconstitutional.

Double criminalisation

In their argument, M Ravi argued that the Section 424 of the Criminal Procedure Code (CPC) says that commissions of such acts as mentioned in 377A, the intention to commit, or the knowledge of commission of such acts by others must be reported to the police. Failure to do so is punishable by up to one month imprisonment or a fine of up to $1,500 under Section 172 of the Penal Code.

Counsel argued that retaining Section 377A, therefore, doubly criminalises gay and bisexual men. On the first level, for committing acts prohibited in 377A and on the second level, for not reporting those acts to the authorities.

As such, Section 377A when read with Section 424 of the (CPC) and 176 of the Penal Code, infringes on the right of these men to life and liberty afforded to them under Article 9(1) of the Constitution.

The lawyer also argued that Section 424 is another uncertain and inconsistent aspect of the enforcement of 377A since people may not be aware whether a failure to report such acts given the Attorney-General’s non-prosecution policy constitutes a reasonable excuse not to do so.

Furthermore, M Ravi argued that Section 424 obliges gay and bisexual men to report their sexual activities or intentions to the police while also imposing an obligation on their friends, families, and even neighbours to do the same.

“This leads to an absurd and arbitrary application of Section 424 on openly gay and bisexual men as it may subject them to surveillance by their acquaintances as well as to the humiliating and degrading acts of enforcement mandated by the law,” argued the lawyer.

Non-enforcement and non-investigation policy

In terms of enforcement of 377A, M Ravi said: “The discretion vested in the Attorney-General towards the non-prosecution of sexual conduct between consenting male adults in private needs to be considered against this statutory obligation imposed on the police to investigate complaints.”

He added that the circumstances in which the private sexual conduct between two consenting men will be investigated or prosecuted are unpredictable and vague.

The third prong of this argument is that Section 119 of the Penal Code also makes it an offence of public servants not to take action against those who might commit offences, including those outlined in 377A. In fact, it is the duty of a civil servant to prevent the commission of offences or risk being caught by Section 119.

To illustrate this, the lawyer gave an example of a domestic worker reporting to the police that her male employer is having sex with a consenting adult male. In such a case, the police is mandated by law to prevent the offence from taking place. Failing to do so will result in a criminal penalty as outlined in Section 119.

M Ravi argued that based on the evidence that the police will never, in practice, investigate allegations of private consensual sexual activities between men, it follows that 377A is arbitrary since it has no practical effect on law enforcement or alleged aims behind the legislation.

“Instead it only serves to identify gay and bisexual men as potential criminals and gives rise to fear that they may, one day, be prosecuted,” said the lawyer.

In his conclusion, M Ravi said “A measure will not, qualify as “law” where it is so absurd or arbitrary a nature that it could not have been contemplated by our constitution framers as being “law” when they crafted the constitutional provisions protecting fundamental liberties.”

“By extension, a provision which occasions an approach to enforcement is absurd or arbitrary may also infringe Article 9(1).”

As for their other arguments in relation to Article 12 which takes into account evidence relating to the purpose of the legislation being introduced in 1938 to combat male prostitution; and Article 14 argument on the freedom of expression, their arguments are similar to those outlined by the other two legal challenges on 377A.

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