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Successful court challenge could be possible if 377A is not repealed: Law Soc forum panellists

In attendance at the discussion was Law and Home Affairs Minister K Shanmugam who also delivered a speech.

Successful court challenge could be possible if 377A is not repealed: Law Soc forum panellists

Supporters of LGBTQ rights attend the annual "Pink Dot" event at Hong Lim Park in Singapore (Photo: AFP/Roslan RAHMAN)

SINGAPORE: If Section 377A of the Penal Code is not repealed, the risk of a successful legal challenge could have been a real one, said panellists at a discussion co-hosted by the Singapore Academy of Law and the Law Society of Singapore on Monday (Sep 26).

The forum, which was moderated by the dean of Singapore Management University's Yong Pung How School of Law Professor Lee Pey Woan, discussed the implications of Tan Seng Kee v AG on the constitutionality of Section 377A.

Also in attendance was Law and Home Affairs Minister K Shanmugam, who delivered a speech and participated in a panel discussion.

The case was dismissed in February by the Court of Appeal. Mr Tan's case was one of the three challenges mounted against Section 377A. The other two were from disc jockey Johnson Ong Ming, and Bryan Choong Chee Hoong, the former executive director of LGBT non-profit organisation Oogachaga.

At the same time, the Court of Appeal reaffirmed that the law was “unenforceable in its entirety” and posed no credible threat of prosecution.

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. 

Speaking during the panel discussion on Monday, Law Society president Adrian Tan touched on the case, and pointed out that the Court of Appeal did raise "red flags".

"They were saying: 'Look, this time the legal challenge is not going to succeed. But next time, it probably will.'," said Mr Tan.

Professor Leslie Chew, who is dean of the Singapore University of Social Science's law school, said that the outcome of cases is never certain, and things evolve. He pointed out that the apex court is also not bound by its own decisions.

"In our system ... it is your constitutional right to challenge. And if you look at the history of issues that have been thrown up by Section 377A, it dates back to somewhere around 2013, It has been a whole decade of every now and then, (there is) a challenge. So the risk is real," he added.

In his opening address, Mr Shanmugam shared similar observations. He explained that there was a risk of Section 377A being struck down by the courts in the future, on the grounds that it could be judged to be in breach of Article 12 of the Constitution. 

Article 12 of the Constitution states that all persons are equal before the law and entitled to equal protection.

During his National Day Rally speech last month, Prime Minister Lee Hsien Loong announced that Singapore will repeal Section 377A.

The Government will also amend the Constitution to protect the definition of marriage – currently recognised by law as taking place between one man and one woman – from being challenged constitutionally in the courts, Mr Lee said.

IMPORTANT NOT TO "DUCK"

During the panel discussion, Mr Shanmugam also touched on the decision to amend the Constitution to protect the definition of marriage, and emphasised that this was not a "compromise".

"We're not in the business of compromises. We sat down and we looked at the Tan Seng Kee judgment and we asked ourselves: 'Where is our society?' And we also asked ourselves, 'What is fundamental in this society?'," he explained.

"We said that the definition of marriage that exists today in the Women's Charter is something this Government is deeply committed to. And we believe that while many people will either not mind or will welcome the repeal of 377A, we don't think Singaporeans are ready for a major sea-change in the tonality of our society and the way our society is the day after."

The Law Minister also noted in his speech earlier the Court of Appeal's comments that politics seemed the more "obvious choice" than litigation for debating and resolving highly contentious societal issues.

"Courts have said this is within the province of Parliament. That does not mean the courts are saying that they will not act. What they are saying is: 'We leave it to Parliament to go and do what is right'," he said.

"In Singapore, things have worked because each branch does what is right and what is their duty. If there is a law in the books which is unconstitutional, what is the duty of Parliament? What's the duty of the Executive? To deal with it or to put on the helmet, go into the bunker and pretend that it doesn't exist because it's politically too divisive? That's not the way things work in Singapore."

As such, one must do the right thing and not "duck", Mr Shanmugam added.

"You don't say as other parliaments have said: 'Well, we leave it to the courts, hopefully they will deal with it.' If Parliament doesn't do what it has to do, then the courts will do what they don't want to do," he said.

Changing laws through the courts can be "messy", as most laws are interconnected, added Mr Tan.

"There's basically two ways that society can change laws. There's a messy legalistic process, which is asking the court to review a law and there is a neat democratic process which is through the Legislature," the Law Society president explained.

He noted that litigation is an "appeal to law" rather than a consultative process.

"In a sense to me, the Tan Seng Kee case also puts a bigger question to Singaporeans: How do we want to effect change in society? Do we want to do it through our democratic process, or do we want to go to court and challenge laws that we don't like? " he said.

"When you change something through the court, it's quite brutal. The court is not probably going to say, when I strike down this law, I'm also going to look at 10 other laws that may refer to it. The court is just going to strike down that law, and then leave everybody else hanging.

"So my personal opinion is that that's a very messy way to effect change in society."

Editor's note: An earlier version of this story said that Law Society president Adrian Tan noted that changing laws through the legislative process can be messy. It should be changing laws through the courts. We apologise for the error. 

Source: CNA/mt(ta)
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