Last Friday, 30 November 2012, a new constitutional challenge was filed in the High Court against the constitutionality of Section 377A of the Penal Code. The plaintiffs, Gary Lim and Kenneth Chee, partners for 15 years, say the law entrenches “stigma and discrimination against lesbian, gay, transgender and bisexual people in society.”
The Singapore constitution’s Article 12 promises equal protection under the law.
Section 377A of the Penal Code says:
Any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to 2 years.
It was first enacted into our statute books in 1938, but closely follows the model of the Labouchere Amendment passed by the UK parliament in 1885. The UK has repealed this and related laws. In fact, the government of David Cameron has begun consultations for legalising same-sex marriage in the UK.
This new case is separate from that of Tan Eng Hong which, I understand, is still ongoing. Tan’s case has gone through several stages in which the Attorney-General’s chambers had tried to argue for striking out. Ultimately, the Court of Appeal ruled on 21 August 2012 that any gay male has locus standi to challenge the constitutionality of the s377A, and that he does not have to be first charged with an offence under it. Despite the Prime Minister saying in parliament in 2007 that the law would not be proactively enforced, the court noted that (vide para 180 of the judgement) “‘no proactive enforcement’ is, in our view, of a totally different complexion from ‘no enforcement’”, and that (para 179) “The very fact of a real and credible threat of prosecution under such a law is sufficient to amount to an arguable violation of constitutional rights.”
The court added (para 184) that “this provision affects the lives of a not insignificant portion of our community in a very real and intimate way.”
Gary and Kenneth have retained as their lead counsel the well-known lawyer Peter Low.
Said Stuart Koe, who supports their effort and is getting an informal group together to help them where needed: “We whole-heartedly support Gary and Kenneth’s challenge and are glad that they have taken up the matter on behalf of the community.”
Since locus standi and a real controversy has been established, it is expected that the case, for which hearing dates in the High Court have not yet been set, will proceed on merits. Tan Eng Hong’s case is also likely to be going ahead on merits, though I have not yet heard definitively from him or his lawyer, M Ravi.
What may happen though is that the High Court, in the interest of efficiency, may hear the two cases in tandem. This means they will remain separate cases, but have synchronous hearing dates under the same judge.
Singapore remains an oddity with this law. As Gary and Kenneth pointed out in their press statement last week, only four countries in East and South East Asia have similar laws against homosexuality. The four countries are Singapore, Burma, Malaysia and Brunei, all ex-British colonies. In Hong Kong, the law has been repealed. Large countries such as China, Japan, Indonesia do not criminalise homosexual acts. Even India, which inherited a similar law from colonial Britain, has read the law down, though an appeal is currently going through the Supreme Court.
377A is not just about male-male sex alone. As Lynette Chua, a law academic researching such laws around the region noted, its effects “radiate” in many ways: to employment rights, censorship, housing, medical care, education and freedom to form organisations, creating discrimination in all these areas.
It is almost certain that the AGC will argue the constitutionality of s377A, and it may take up to two years for the case to be concluded since whichever side loses in the High Court is likely to appeal to the Court of Appeal.
Meanwhile, it won’t surprise me if all manner of homophobes, particularly religious ones, will organise to write letters to members of parliament and otherwise try to sway public opinion. They will forget that their very freedom to do so rests on exactly the same principles of tolerance, liberty and equality they wish to deny to others. For example, as much as people of religion X may think that adherents of religion Y are wrong, sinful, idolatrous and so on, the law is clear that it is not its business to enforce religion X’s views on followers of religion Y. By the same token, whatever one may think about homosexual love, the law is not there to impose one side’s views on others’ liberty and right to equality.
Even so, I suspect this plain logic will escape them. Let’s hope the courts are free from such modes of thinking.