International Bar Association’s Human Rights Institute condemns S'pore decision to uphold Section 377A

The International Bar Association’s Human Rights Institute (IBAHRI) on Mon (6 Apr) criticised the Singapore High Court's last month to dismiss the constitutional challenges of three men against Section 377A of the Penal Code. Highlighting that Section 377A is a relic from British colonial rule that has resulted in the criminalisation of male homosexual activity since 1938, IBAHRI in a statement today pointed out that the Singapore High Court decision on 30 Mar serves as a "stark contrast to a series of recent rulings from high courts in Africa, the Caribbean and India" regarding similar laws. The decision, IBAHRI added, "violates the Court’s responsibility to deny equality to citizens". Former Australia High Court judge Michael Kirby, who co-chairs IBAHRI, compared -- in essence -- Section 377A to provisions in several other Commonwealth countries that penalise people "on the grounds of their race", as both discriminate against traits that are innate within individuals. "The plain fact of the matter is that provisions in the inherited colonial criminal law of Singapore stigmatise, isolate and punish lesbian, gay, bisexual and transgender (LGBT) citizens of that country for an indelible feature of their nature which they do not choose and cannot change. "Given the long history of criminal laws in several Commonwealth countries that discriminated severely against, and criminalised, people of the Chinese race, it is surprising and disappointing that such laws should be upheld today as compatible with the constitutional obligation designed to ensure equality of treatment of all citizens in the nation concerned," said Mr Kirby, who is also a jurist and an academician. Mr Kirby served as a Justice of the Australian High Court from 1996 to 2009. He married his partner Johan van Vloten in a civil ceremony in Sydney in Feb last year after 50 years together. Australia legalised same-sex marriage in 2017. General secretary for the Swedish Bar Association Anne Ramberg, who also co-chairs IBAHRI, branded Section 377A as "extremely outdated, and upholds archaic principles with severe disregard to well-enshrined international human rights principles, including Article 2 of the Universal Declaration of Human Rights which ensures". "Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status," she added. Ms Ramberg highlighted that while Section 377A only refers to sexual relations between men, retaining the legislation -- in her view -- "legitimises a dangerous culture of homophobia for the whole LGBT community in Singapore which is highly inconsistent with international standards". In a statement by the Human Dignity Trust, the Trust’s Director Téa Braun warned that the High Court ruling "will also echo harmfully around Asia, where millions of people are criminalised simply because of their sexual orientation or gender identity.’" Five years in May 2010, IBAHRI passed the Resolution on Sexual Orientation and Human Rights, which recognises that discrimination against anybody on the grounds of their sexual orientation and gender identity is contrary to fundamental principles of human rights.

Section 377A “intended to safeguard public morals generally and enable enforcement and prosecution of all forms of gross indecency between males”: S'pore High Court Justice See Kee Oon

Delivering his judgement in chambers on 30 Mar, 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 “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. Counsels for disc jockey Johnson Ong Ming and retired doctor Roy Tan told The Straits Times on 31 Mar that they have filed appeals in the Court of Appeal. Mr Ravi of Carson Law Chambers, who represents Dr Tan, will be appealing “against the whole of the decision”, court documents indicated. The human rights counsel 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 Ravi in a Facebook post. 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.