SINGAPORE: The Singapore High Court Tuesday dismissed one of two legal challenges that Section 377A of the Penal Code is unconstitutional, ruling its objective of criminalising a conduct that "is not acceptable in society" is "clear". Section 377A criminalises sex between men.
In his 92-page judgment, Justice Quentin Loh said that in Singapore's legal system, whether a social norm that has "yet to gain currency" should be discarded or retained is decided by Parliament. Parliament voted in 2007 to retain Section 377A.
"To my mind, defining moral issues needs time to evolve and is best left to the legislature to resolve," said Justice Loh, noting that Singapore society is "in the midst of change".
He added: "It is not that the courts do not have any role to play in defining moral issues when such issues are at stake. However, the court's power to intervene can only be exercised within established principles."
Graphic designers Gary Lim Meng Suang, 44, and Kenneth Chee Mun-Leon, 37, had contended that the statute discriminates on the basis of sexual orientation, which makes it a violation of Article 12 of the Constitution stating that "all persons are equal before the law and entitled to the equal protection of the law". The pair has been a couple for 15 years.
Represented by lawyers Mr Peter Low, Mr Choo Zheng Xi and Ms Indulekshmi Rajeswari, they argued that Section 377A is "absurd, arbitrary and unreasonable".
Since Section 377A is selectively and arbitrarily enforced, it does not serve the function of signalling that male homosexual conduct is undesirable and should not be practised openly, Mr Low argued.
However in his ruling, Justice Loh said that the argument was "without merit".
"It is questionable whether in order for a criminal provision to fulfil its function that it must be enforced," he said.
"In the case of Section 377A, the legislature has decided that retaining the Section without advocating the enforcement is enough to fulfil the purpose of Section 377A."
As for Article 12, Justice Loh noted that Parliament is entitled to pass laws that deal with "the myriad of problems that arise from the inherent inequality and differences pervading society". In doing so, it is "inevitable that classification will product inequality in varying degrees".
Therefore, "equality before the law and equal protection of the law under Art 12 (I) does not mean that all persons are to be treated equally, but that all persons in like situations are to be treated alike"," he said.
The views aired during the parliamentary debate in 2007 "are without a doubt controversial and disparate among various segments of our society", but what is clear is that "Parliament has decided that Section 377A should be retained", said Justice Loh.
"Our courts cannot substitute their own views for that of Parliament," he added.
The judge has reserved judgment on the second challenge brought forward by Mr Tan Eng Hong.