High Court judge dismisses all three challenges to Section 377A

High Court judge dismisses all three challenges to Section 377A

377A combi
The men mounting challenges to Section 377A, and their lawyers. (Photos: Facebook/Remy Choo Zheng Xi, Ching S. Sia, Facebook/Roy Tan)

SINGAPORE: Three men have failed in their challenges against Section 377A of the penal code, after a High Court judge dismissed their court actions against the law that criminalises sex between men on Monday (Mar 30). 

In a case summary released by the court, Justice See Kee Oon rejected arguments that the law is unconstitutional, and defended the decision not to pro-actively enforce Section 377A.

He said that Section 377A "serves the purpose of safeguarding public morality by showing societal moral disapproval of male homosexual acts". It cannot be said to be redundant simply because of its non-enforcement, he added.

According to Section 377A of the Penal Code, any man who commits any act of gross indecency with another man in public or in private can be jailed for up to two years. This extends to any man who abets such an act, procures or attempts to procure such an act.

The verdict was delivered in chambers, four months after arguments were made by the lawyers for the three men: Disc jockey Johnson Ong Ming, retired general practitioner Roy Tan Seng Kee and Bryan Choong Chee Hoong, the former executive director of LGBT non-profit organisation Oogachaga.

Mr Choong said in a statement that he is "of course disappointed", but said his eyes "are firmly on the road ahead". 

"I’ll be studying this judgment closely with my lawyers. For now, I want to thank them for their hard work and all well-wishers for their support," he added.

Mr Tan's lawyer, M Ravi, told the media after that short hearing that he is working with a team to study the prospects of appeal.

He said the decision was "astounding" and "utterly shocking" because "you still criminalise these people".

Mr Ravi had argued on behalf of Mr Tan that the "absurd and arbitrary application" of the law is a violation of the Constitution as all gay and bisexual men are obligated to report their consensual private sexual acts to the police.

This is "incongruous with the so-called non-proactive enforcement of Section 377A", said Mr Ravi, who also argued that this law infringes the right to equality, life, personal liberty and expression.

However, Justice See found that issues relating to how the law is enforced are distinct from issues relating to whether it is constitutional, maintaining that it does not violate various articles in the Singapore Constitution.

He held that legislation remains "important in reflecting public sentiment and beliefs".

Mr Choong's lawyers, led by Senior Counsel Harpreet Singh Nehal, had argued based on new historical material that was not available during a 2014 appeal.

They pointed to recently declassified documents demonstrating that the introduction of Section 377A in 1938 was to criminalise "rampant male prostitution" when Singapore was under British colonial rule.

However, Justice See ruled that Section 377A "was not targeted solely at male prostitution when it was enacted", adding that it was "intended to safeguard public morals generally and enable enforcement and prosecution of all forms of gross indecency between males".

Mr Ong's lawyers, helmed by Mr Eugene Thuraisingam, put forth expert scientific evidence on the nature of sexual orientation, arguing that homosexuals cannot wilfully change their orientation and that Section 377A is discriminatory and violates the Constitution.

The court found that "there was no comprehensive scientific consensus that a person's sexual orientation was biologically determined such that it is immutable".

Justice See added that the court is not the "appropriate forum to seek a resolution of a scientific issue that remains controversial".

Mr Ong intends to appeal the decision, lawyer Suang Wijaya told CNA.

The Attorney-General's Chambers had maintained that Section 377A serves a "legitimate and reasonable" state interest, "regardless of whether and how it is enforced".

They said the issue was "a deeply divisive socio-political" one that should instead be decided by Parliament, as the latter comprises democratically elected representatives accountable to Singaporeans.

Source: CNA/ll(rw)

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