This is just a quick update on the constitutional challenge to Section 377A of the Penal Code, Singapore’s law against male-male sexual acts. The challenge was filed by lawyer M Ravi, on behalf of his client Tan Eng Hong, on 24 September 2010. In a hearing held 7 December 2010, the Assistant Registrar of the High Court, Then Ling, agreed with the Attorney-General’s Chambers’ (AGC) application to strike out the case. The case reference is OS994/2010 SUM5063/2010.
It is not known whether Ravi and his client intend to appeal the Assistant Registrar’s decision.
I had earlier written about this constitutional challenge in The 377A hide and seek. I mentioned then that the AGC was filing an application to strike out the Originating Summons on the ground that plaintiff (Tan Eng Hong) had no standing. This was because the Deputy Public Prosecutor had since downgraded the initial charge Tan faced from Section 377A to Section 294 of the Penal Code.
Tan’s Section 294 case has still not been disposed of. He is being accused of engaging in sexual acts with another male person within a toilet stall in a shopping centre.
A young lawyer who attended the hearing, Mohan Gopalan, reported on Facebook that “registrar struck out the case on grounds that plaintiff (a gay man) does not have standing, and therefore the proceedings are frivolous and vexatious and abuse of process,” and that “registrar accepted the argument that to have standing, one must be prosecuted under 377A. No prosecution, no standing.”
In my earlier article I argued that it would be a denial of justice to institutionalise such a restrictive rule that one must be prosecuted in order to challenge a law that has wide effects on a class of persons, including indirect effects.
However, a possibility that I suspect one needs to bear in mind is that the affidavit supporting this summons was phrased in a way that could have made the case contingent upon Tan Eng Hong being prosecuted under Section 377A. Paragraph 3 opens with the statement that:
The Plaintiff had been charged with an offence under Section 377A of the Penal Code, Chapter 224, for allegedly having oral sex with another consenting male who is also charged with a similar offence . . .
Not being a lawyer, I am only speculating how and whether such a reference might have bound the challenge tightly to a prosecution charge. What if a class-action suit were filed instead? Would the reasoning used for dismissing this challenge apply?
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On a related note, it’s worth recalling that the constitutional challenge filed by the Naz Foundation against India’s Section 377 was also dismissed at the outset for lack of standing. Naz had to appeal to get this reversed before the case could proceed, eventually reaching the Delhi High Court where the substance of the matter was finally argued. July 2009 saw the court decide in its favour, reading down Section 377 and legalising homosexual relations between consenting adults.
The case, however, is not yet over. Although the central government of India decided to accept the Delhi High Court’s decision and not appeal it to the Supreme Court, various private parties, mostly religiously-affiliated, have sought leave to appeal. Whether or not any of them will be granted standing to appeal is as yet undecided. Should the Supreme Court allow one or more parties standing to appeal, then the whole case will have to be argued again in the Supreme Court.
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This same week, the Ninth Circuit Court of the United States had a two-hour hearing over Proposition 8, the 2008 voter measure in California that banned future marriages for same-sex couples (but left pre-existing marriages intact). US Federal District Judge Vaughn Walker had ruled middle this year that Prop 8 was unconstitutional. It is this decision that is being challenged at the next level. After two-and-a-half hours of oral arguments, the Ninth Circuit Court adjourned without issuing a decision, but the searching questions — you can find on the internet plenty of reports on the 6 December hearing — that the three judges asked of all the lawyers arguing before them reveal a degree of intellectual dissection that puts Singapore courts and judges to shame.
Over here, the 377A challenge was not only struck out on the basis of lack of standing, a technicality which at least may be arguable, it was also characterised as frivolous and vexatious, which is uncalled for. On what basis? When an entire class of people are aggrieved, how can it be frivolous and vexatious? Vexatious to whom? To the process of law? Or to the political masters who don’t like to be contradicted?