The 377A hide-and-seek

On 10 November 2010, Chin Chee Shyong was fined S$3,000 for an “obscene act” in a public place. He had originally been charged under the infamous Section 377A of the Penal Code, but after representations were made to the Attorney-General’s Chambers by his lawyer and others, the charge was reduced to one under Section 294 of the Penal Code, which reads:

294. Whoever, to the annoyance of others —

(a) does any obscene act in any public place; or

(b) sings, recites or utters any obscene song, ballad or words in or near any public place,

shall be punished with imprisonment for a term which may extend to 3 months, or with fine, or with both.

Attending the court hearing this morning, the following was what I gathered about the facts of the case:

On 9 March 2010, two waiters from the restaurant called New York, New York in the underground Citylink Mall called the police when, around 9 p.m., they spotted two men in adjacent toilet cubicles having oral sex under the lavatory partitions.  The waiters’ attention had been drawn by sounds of moaning.

Apparently, this was not the first time they had noticed such incidents. This time however, one of the waiters video’d what he saw.

By the time the police arrived, the two men had left, so the police told the waiters to call them once more should the men be seen again.

The men were not seen again, but another two men happened to use the same public toilet for sex, not long after. They too used separate cubicles, but one reached (crawled?) under the partition to the other and fellatio took place.

What was not clear from the statement of facts read out in court was how the waiters came to notice these other two. Were they watching the toilet closely in the hope of seeing the first two again? Probably, I would think.

Naturally, they called the police again and this time, the second pair of men — Chin and Tan Eng Hong — were still in the toilet when the officers arrived. The two were caught and Tan admitted to performing oral sex in his police statement.

Both Tan and Chin were charged under Section 377A.

However, a few weeks ago, the Deputy Public Prosecutor (DPP) reduced the charge for both to one under Section 294. According to Tan’s lawyer, M Ravi, the DPP explained to the judge that they were doing this “as a matter of public policy” (Ravi said I could quote him as recollecting those words by the DPP), an expression that M Ravi took to indicate that the Attorney-General’s Chambers would not be using Section 377A again for similar incidents.

However, Chin’s lawyer, who attended the same pre-trial conference, did not recall the DPP using any expression like that. If the DPP had used such an expression, it would certainly have pricked his ears, he said. Referring to his notes, he said the DPP merely said that after considering the facts, they were “recalibrating” the charge to one under Section 294.

I am now not certain what significance one should give to this turn of events.

Anyway, Tan’s case will come up later this month. It is not yet clear if he plans to plead guilty. [Update, 26 March 2011: Tan pleaded guilty in mid-December 2010 and was also fined S$3,000]

* * * * *

Prior to the DPP lowering the charge, M Ravi, who is well-known in Singapore for adopting an aggressive position on behalf of his clients, had told the court at the very first court mention of this case that he intended to challenge the constitutionality of Section 377A.

Subsequently, he followed up with an Originating Summons, the first few lines of which says,

Section 377A of the Penal Code is inconsistent with Article 9 of the Constitution, and is therefore void by virtue of Article 4 of the Constitution; and Section 377A is inconsistent with Articles 9 and 14 of the Constitution, and is therefore void by virtue of Article 4 of the Constitution; and for these reasons the charge brought against the accused under Section 377A is void.

What are Articles 4, 9 and 14 of the Constitution?

Article 4 says that the Constitution is the supreme law in Singapore and any act of the legislature that is inconsistent with the Constitution is void.

Article 9 is relatively long, the first sentence of which says “No person shall be deprived of his life or personal liberty save in accordance with law”.

Article 14 guarantees the freedom of speech, assembly and association subject to this and that.

The High Court date for the constitutional challenge, which runs separately from the Section 294 charge against Tan, is set for 7 December 2010. I am given to understand that the Attorney-General’s Chambers (AGC) will be asking the High Court to dismiss this challenge on the ground that there is no outstanding charge under Section 377A for Tan to answer.

M Ravi is going to dispute this line of reasoning. His argument is likely to be as follows:

If the High Court allows this as grounds for dismissing his constitutional challenge, then it effectively says that no legislation can be challenged, however adverse the effects it has on people, unless it is brought by someone being prosecuted under it.

Such a narrow window of opportunity is unreasonable and does not adequately serve the interest of justice. Laws can have effects even when no prosecution results; is one to say that short of being prosecuted, no one can ever challenge the constitutionality of any piece of legislation?

For example, let’s suppose Parliament passed a law that says only females aged 40 and above can be granted a licence to do a certain kind of business. The government thus routinely refuses to issue such licences to younger women and men who also wish to carry on such a business. Because no one wants to take the risk of being charged and going to jail for conducting a business without the requisite licence, no one openly flouts the law, in which case no one is actually prosecuted.

Is there no route open to anyone affected by the law (i.e. younger women and men) to challenge it? Should our courts take the view that since Mr A or Miss B has not been prosecuted for flouting the law, they have no right to challenge it? Wouldn’t that be the same as saying, too bad, if Parliament deprives you of the equal right to conduct this kind of business, you’ll just have to lump it?

Same with Section 377A: it has effects even when no one is being prosecuted. One direct effect is when the Education Ministry (MOE) refuses to allow any other sex education but that which paints homosexuality in a negative light. Right up there in its Sexuality Education guidelines is the requirement that providers must stress that “homosexual acts are illegal”, and that the “MOE does not . . .  promote homosexuality”. As we all know in Singapore, “not promote” is a euphemism that is taken to mean that no positive or even neutral speech about homosexual orientation is to be allowed. Any and all discussion of homosexual orientation must paint it in negative light. Does that not undermine the self-confidence and self-esteem of the gay teenager? Does that not perpetuate the stigma and prejudice held by his peers, who will grow up to be adults?

Another effect, albeit indirect, of Section 377A, is unequal censorship. After the Education Ministry has made its strenuous efforts to perpetuate prejudice, the Information Ministry then says, oh look, the majority of Singaporeans dislike encountering gay-positive characters and themes in media; that being the case, we have a popular mandate to censor out anything that makes gay people look good. The censorship and resulting bias in media portrayal in turn reinforce that same stigma and prejudice, leading to job discrimination and the overall second-class position for gay people in society.

Are our courts going to say that no recourse is open to anyone so affected until he has been caught and charged under Section 377A?

Well, we shall see what happens in December when this motion by the AGC to dismiss is heard.

19 Responses to “The 377A hide-and-seek”

  1. 1 Legally Blonde 10 November 2010 at 20:46

    Dear Yawning Bread,

    I’m writing as a foreign lawyer who has taken an interest in these cases, but I am not a specialist in constitutional law. I just thought I would mention some quick thoughts on the issues you’ve raised, this is not intended as any kind of authoritative statement!

    It’s an interesting article, and it’s good news for those involved that the charge was reduced whatever the reason, whether as a matter of policy or to avoid a constitutional challenge. I believe the lawyer was right to raise the constitutional issue.

    I don’t want to go into the facts of the case, but no doubt the definition of privacy needs to be considered in the section now charged; I would just point out that in England, a locked cubicle in a public toilet would probably have been in private, except that it was EXPRESSLY SPECIFIED not to be private in the legislation (attempts to remove this qualification failed). For example, behind bushes in a secluded area was held to be private in English cases. Behind a locked door would certainly be if not for the special reference to public toilets in the legislation.

    I would expect specialist advice to be sought on the constitutional aspect. If I were acting in a similar case I would hire a QC or find one willing to act pro bono given the importance of the issue; as it would be a matter of public importance it might also be ordered to be publicly funded if it was a similar case in England.

    I’m very surprised if no mention is made in the summons of clause 12 (1) of the constitution, which I believe deals with equal protection under the law. 377A targets homosexual men, who are a group or class of people (as has been established in higher court decisions in common law jurisdictions all over the world). 377A targets them, depriving them of the right to a love life. And so far as I am aware, that, in the view of most (possibly all) judges who have considered the issue around the world, is a breach of equal protection under the law. I believe there is a fairly good analysis of this in the judgement of the Delhi High Court, which recently overturned this clause in India as regards adult men in private. So I am concerned it may be necessary to seek to amend the summons after getting specialist advice, to add reference to this clause.

    I’m not clear why the lawyer considers that without a prosecution no one can challenge the constitutionality of a law, as I would have thought it possible to do so through judicial review, though I have seen comments that this is prohibitively expensive in Singapore, and I do not know whether an NGO such as PLU would have standing (locus) there in the way that NAZ and other groups did in India.

    If however there are still grounds to proceed with the summons now that 377A has been dropped from the prosecution I do hope all interested parties can get together to put forward a strong case; and if it can’t proceed, perhaps there is the question of the abortive costs of the 377A charge – can these be awarded against the AG? That in itself may require a determination as to whether they wrongly charged under 377A, and so as to it”s constitutionality.

    Good luck guys!

  2. 2 Anonymous 10 November 2010 at 22:36

    I am not a lawyer. I dislike this case being used to challenge the constitutionality of 377A. As strong as the legal arguments can be, essentially the in the court of public opinion the cause is already lost because this has to do with sexual acts in a public restroom.

  3. 3 James 11 November 2010 at 03:04

    Pretty sure you can challenge the constitutionality of a law without being prosecuted under it. It is called judicial review. Not sure about the legal procedure involved though – M Ravi might have to file a separate application on behalf of an actual client who wants to challenge the constitutionality of 377A.

    Anyway, it seems like the AGC backed down from the fight. Maybe even they think that 377A is unconstitutional and won’t survive judicial scrutiny.

    • 4 yuen 11 November 2010 at 05:28

      I dont think that is an issue; parliament has the power to define the constitution so decides what is “constitutional”.

      However, during the debate on this topic a few years ago, it was repeatedly said “we keep the law on the books in view of prevailing public opinion but have not been enforcing it”; departing from this position would open a new can of worms

      • 5 Soliman le Magnifique 11 November 2010 at 10:40

        What do the worms look like in Hongkong, China, Taiwan, North Korea(!!!), Japan?

        Yuen seems to be the only one posting in YB about these
        mythical worms. It’s a magic word for “let’s not talk about
        it since I am perfectly happy with the way things are but
        too bad for you”.

      • 6 Charlie Chan 11 November 2010 at 10:54

        Would your “can of worms” argument apply in the case of laws like the US “Chinese Exclusion Act”?

        Imagine the same thing being done with this law: allow Chinese immigration but keep the law in the books to show the “prevailing public opinion” about non-White minorities.

      • 7 Habemus Papam 11 November 2010 at 11:07

        Yuen really needs to expand his horizon beyond Singapore.

        What is the prevailing public opinion in the “Vatican City” (for his info:a sovereign state headed by the Pope)?

        And let’s not get me started about the worms there…

      • 8 James 12 November 2010 at 13:33

        That is false. Yes, the parliament decides what to write in the Constitution, but it is the courts that decide what is constitutional. If the parliament does not like how the courts have interpreted the Constitution, it can amend it via proper procedure, but it cannot claim to overrule the court’s interpretation.

      • 9 yuen 12 November 2010 at 13:50

        this seems to be playing with words, but at least, unlike the other guys, you were not so concerned about worms

  4. 10 yuen 11 November 2010 at 11:04

    not sure why you guys are so interested in worms; surely you got bigger problems to worry about?

  5. 13 yuen 11 November 2010 at 11:10

    >Yuen really needs to expand his horizon beyond Singapore.

    isnt YB discussion the situation in singapore? does Vatican have “377A hide-and-seek”?

  6. 16 gambit 11 November 2010 at 13:50

    as always, an interesting read.

    “obscene song”. seriously??

  7. 17 thornofplenty 12 November 2010 at 08:51

    I wonder how “obscene” is defined in Singapore.
    The US has the (laughable) 7 dirty words. what are Singapore’s standards?

  8. 18 kudaclub 16 November 2010 at 14:58

    I think public toilet is not meant to be used for sex whether gay or otherwise and these people must be prosecuted. Our position is of course we can not support any act against nature for the sake of humanity.

    Kuda Ckub

  9. 19 yuen 16 November 2010 at 17:51

    someone actually tried to argue that a locked toilet cubicle is private; I assume by “private” he/she meant “not openly accessible” because the cubicle is locked; however, I dont think this is the common understanding of “private” here

    if you some kind of proprietary rights like owning or renting a place, then it is private; is a toilet owned/rented by a restaurant/club, but open to use by anyone on the premises, private or public? this is probably a legally grey point, but I believe the common community view here would be “public” even when the door is locked

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