Source: Roy Tan / Facebook

Two men who brought legal challenges against Section 377A of the Penal Code — which criminalises sex between men — are set to appeal against the High Court’s decision on Mon (30 Mar) to dismiss their cases.

Counsels for disc jockey Johnson Ong Ming and retired doctor Roy Tan told The Straits Times today (31 Mar) that they have filed appeals in the Court of Appeal.

Mr M Ravi of Carson Law Chambers, who represents Dr Tan, will be appealing “against the whole of the decision”, court documents indicated.

Former executive director of LGBT non-profit organisation Oogachaga Bryan Choong — also one of the three men who brought a legal challenge against Section 377A — will also be filing his appeal against the High Court decision soon, according to his lawyers.

Delivering his judgement in chambers yesterday, Justice See Kee Oon rejected the arguments of three men that the provision violates the Singapore Constitution.

Several issues were raised by the plaintiffs in their challenges, which encompassed the following, but were not limited to:

  • whether Section 377A only covers non-penetrative male homosexual activity and is targeted only at male prostitution;
  • whether the presumption of constitutionality applies to s 377A;
  • whether there exists scientific consensus regarding male homosexuality originating purely from biological factors which may result in Section 377A violating Article 9(1) of the Constitution;
  • whether Section 377A contravened “a non-derogable right” to freedom of expression under Article 14 of the Constitution; and
  • whether the continued criminalisation of male homosexual activity through the retention of s 377A was absurd or arbitrary and hence inconsistent with Article 9(1) of the Constitution.

Justice See, in setting aside the three men’s arguments, reasoned that Section 377A “intended to safeguard public morals generally and enable enforcement and prosecution of all forms of gross indecency between males”.

He added that the provision “was not targeted solely at male prostitution when it was enacted in 1938″.

The judge also rejected the argument that Section 377A is in contravention of Article 12, as the provision “was not under- or over-inclusive”.

Touching on Section 377A and the right to freedom of expression provided for in Article 14(1)(a), the judge said that Section 377A does not violate the said Article.

The right to freedom of expression, according to Justice See, “must be understood to relate to the right to freedom of speech, encompassing matters of verbal communication of an idea, opinion or belief”.

Further, the judge observed that “no comprehensive scientific consensus as to whether a person’s sexual orientation is immutable” exists as of today.

The court, said Justice See, is “not the appropriate forum to seek resolution of a scientific issue that remains controversial”.

Issues surrounding the enforcement of Section 377A, he added is a separate matter from those surrounding the Penal Code provision’s constitutionality.

While Justice See noted that Section 377A is generally not enforced in Singapore, he stressed that “[n]on-enforcement of s 377A in respect of consensual male homosexual activity in private does not render it redundant”.

“Legislation remains important in reflecting public sentiment and beliefs,” according to the judge.

Mr M Ravi viewed the decision as “astounding” and “utterly shocking” because “you still criminalise these people”.

“Societal norms have changed with time and our voices have grown and so we will keep trying – the journey will not end, till section 377A is declared unconstitutional and abolished,” said Mr M Ravi in a Facebook post on Mon.

Last Sep, Mr Tan, who is also an activist for the lesbian, gay, bisexual and transgender (LGBT) community, said that an “anachronistic law” such as Section 377A “adversely affects the lives of gay men”.

“By institutionalising discrimination, it alienates them from having a sense of belonging and purposeful place in our society, and prevents them from taking pride in Singapore’s achievements,” the retired general medical practitioner said.

“On a personal and professional level, I am extremely concerned about the mental and physical health aspects of retaining Section 377A. In my practice, I regularly see how the law can adversely impact the mental health of LGBT people, who frequently present with depression, social isolation and even suicidal tendencies,” Mr Tan added.

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