Three court challenges to Section 377A: A summary of key arguments

Three court challenges to Section 377A: A summary of key arguments

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, flanked by a host of lawyers, took to the High Court this past week to mount challenges to the law that criminalises sex between men, which they claim to be unconstitutional.

The challenges were mounted by Johnson Ong Ming, a 43-year-old disc jockey and producer; Roy Tan Seng Kee, a 61-year-old retired general practitioner; and 42-year-old Bryan Choong Chee Hoong, the former executive director of LGBT non-profit organisation Oogachaga.

The arguments were made in chambers before Justice See Kee Oon and ended on Wednesday (Nov 20), two days ahead of schedule, with a verdict to be released later.

All previous challenges against Section 377A have failed. 

The court actions taken this time come after former Chief Justice Chan Sek Keong called for a review of Section 377A in a paper published online on Oct 14, with two former attorneys-general also making public comments on the law.

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 Attorney-General Chambers (AGC) has argued that "gross indecency" here covers both penetrative and non-penetrative sex acts between men.

Certain criminal laws were repealed in 2007 as they were deemed to no longer reflect societal norms and values in Singapore. Consensual heterosexual oral and anal sex between adults were also decriminalised.

Section 377A was, however, not repealed, with a near-unanimous vote by parliament deciding then that the status quo "struck the correct balance between the majority conservative view on the one hand, and recognising that homosexuals are part of and have a place in Singapore society on the other", read AGC's submissions.

What follows are the key arguments that were put forward by lawyers in each case, as well as the submissions on behalf of the Attorney-General (AG), who was listed as the respondent in the cases.

Case 1: Bryan Choong Chee Hoong

Lawyers: Harpreet Nehal Singh, Remy Choo Zheng Xi, Priscilla Chia, Wong Thai Yong, Jordan Tan

Bryan Choong
Mr Bryan Choong (third from left) seen outside the Supreme Court posing for a photo with his lawyers on Nov 13, 2019. He is one of three men who have mounted challenges to Section 377A of the Penal Code. (Photo: Najeer Yusof/TODAY)

ORIGINAL AIM WAS TO ADDRESS MALE PROSTITUTION

Mr Choong's lawyers argued that recently declassified documents demonstrate that the introduction of Section 377A in 1938 was to criminalise "rampant male prostitution" in a time when Singapore was under British colonial rule, and it now has "no legitimate objective".

"The legislative purpose was never to target private, non-commercial acts of sexual intimacy between consenting male adults," they said.

The lawyers argued that Section 377A targets only commercial sexual acts committed by and with male prostitutes, and that it does not criminalise penetrative sex.

The new historical material was not available during a 2014 appeal by Lim Meng Suang against the gay sex law, which failed.

The lawyers presented crime reports from 1937 which showed a "heightened and urgent increase in concern 'for the newly discovered' widespread existence for male prostitution" as a cause for law enforcement concern.

Even if the court did not accept this argument, the fresh material should lead the court to conclude that the legislative purpose of Section 377A is "uncertain or obscure", they argued.

Case 2: Johnson Ong Ming

Lawyers: Eugene Thuraisingam, Suang Wijaya and Johannes Hadi 

Johnson Ong
Mr Johnson Ong Ming outside the High Court with his lawyers. (Photo: Ching S. Sia)

THE SCIENTIFIC ARGUMENT

The arguments for Mr Ong's case were based on expert evidence on the nature of sexual orientation, where before the court was asked only to take judicial notice of scientific facts, which required a different legal test.

They argued that scientific evidence shows that homosexuals, like heterosexuals, cannot wilfully change their sexual orientation or attraction, with no credible scientific evidence supporting the proposition that therapy aimed at changing sexual orientation is safe or effective.

Both experts for Mr Ong and the Government cited in the lawyers' case agreed that genetic and non-social environmental factors contribute to sexual orientation, with "little if any" scientific evidence supporting the proposition that social environmental factors play any role in sexual orientation.

Therefore, Section 377A violates the Constitution and is discriminatory, criminalising a person based on his "natural, unchangeable identity and for non-harmful private acts", argued the lawyers.

"All that Section 377A does is to simply express the majority’s 'good old-fashioned discrimination' against male homosexuals, who are a minority," said the lawyers. 

"The role of our Constitution and the Court is to protect minorities against the absurd, irrational prejudices of the majority."

Case 3: Dr Roy Tan

Lawyer: M Ravi

Roy Tan
Dr Roy Tan with his lawyer M Ravi at the Supreme Court. (Photo: Facebook/Roy Tan)

INVESTIGATION AND ENFORCEMENT IS "ARBITARY", INCONSISTENT

Mr Ravi said that all gay and bisexual men are obligated under a section of the Criminal Procedure Code to report their consensual private sexual acts to the police.

This is "incongruous with the so-called non-proactive enforcement of Section 377A, thus resulting in absurd and arbitrary application" of the law which is a violation of the Constitution, he argued.

He said failure to report an offence under Section 377A is punishable under the law, and to retain the section would "doubly criminalise" gay and bisexual men, as they would commit what is considered an offence under Section 377A and not report them.

He claimed that the circumstances in which private sexual conduct between consenting men are investigated or prosecuted are "vague and unpredictable".

"Should a report be made, the police will have an obligation to act and investigate in cases where complaints are lodged by persons in respect of offences under Section 377A," he said.

He also argued that Section 377A infringes the right to equality, life, personal liberty and expression under Singapore's Constitution.

SECTION 377A SERVES A LEGITIMATE STATE INTEREST, PARLIAMENT SHOULD HANDLE ANY REPEAL: AGC

Lawyers representing the AG in the hearings were Deputy Chief Counsel of litigation, transactions and administration Hui Choon Kuen, Deputy Senior State Counsel Jeremy Yeo, executive director at the AGC Academy Denise Wong, and State Counsel Jamie Pang.

In their submissions numbering more than a hundred pages, the lawyers said that Section 377A's purpose is to send "a certain moral signal" by its mere existence. It advances a legitimate and reasonable state interest, reflecting an aspect of societal morality, "regardless of whether and how it is enforced".

They urged the court to find Section 377A constitutional and to dismiss all three applications, calling this "a deeply divisive socio-political issue" that should rightfully be decided by the legislature or Parliament.

This is because Parliament comprises democratically elected representatives who are installed by, and directly accountable to the Singaporean people, they said.

"Whether or not to repeal Section 377A on policy grounds is an extremely difficult issue but, with all due respect to the Judiciary, it is a problem that constitutionally belongs to the Legislature and not the Judiciary," said AGC's lawyers.

Parliament House Singapore, top down view
Parliament House, Singapore. (Photo: Hani Amin)

They said the approach in the applicants' arguments would have "a strong potential impact on other national policies" including family, marriage, housing and education, if accepted.

Repealing it would be a major change from long-held societal norms, said the lawyers, and some segments of the population deeply opposed to the repeal would have "strong feelings about this".

If Parliament enacts the changes, they can work with the Executive or Cabinet to prepare the ground for change by engaging relevant communities and their leaders.

On the issue of enforcement, AGC's lawyers said the Government’s position is that the police will not take proactive action to enforce Section 377A. 

"On his part, the Public Prosecutor will not pursue prosecution where the homosexual sex acts were conducted in private between consenting adults," they said.

Section 377A does not violate the articles in the Constitution as argued by the applicants, said AGC's lawyers. For one, the acts it criminalises do not concern speech or expression in the sense protected in the Constitution.

The argument that it is absurd and arbitrary to deprive homosexuals of their sexual conduct asserts that sexual freedom is a constitutional right protected by the Constitution, said AGC's representatives.

"There is, however, no unenumerated free-standing right to sexual freedom or privacy in the Constitution," they said. "The legality of various forms of voluntary sexual conduct are questions of societal values and morality for Parliament to decide."

AGC'S OFFICIAL STATEMENT POST-HEARING

After the hearings concluded on Wednesday, AGC issued a statement saying it would leave the court to make its decision.

It said the AG has "already stated that where the conduct in question was between two consenting adults in a private place, the Public Prosecutor’s position is that, absent other factors, prosecution under Section 377A would not be in the public interest". 

"It would naturally follow from this position that any prosecution under other provisions which would contradict the non-prosecution position of Section 377A would likewise not be in the public interest."

A judgment will be released at a later date. According to lawyers, this could take up to several months.

Source: CNA/ll(rw)

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