High court vexed when asked to think about law

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?

* * * * *

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.

* * * * *

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?

18 Responses to “High court vexed when asked to think about law”

  1. 1 Ronald 11 December 2010 at 08:01

    I’m not sure about the specific procedural issues implicated by this case, but the Court of Appeal has stated quite clearly before that you don’t need to be prosecuted for a crime to launch a constitutional challenge.

    In Chan Hiang Leng Colin v Minister for Information and the Arts, the Court of Appeal said:

    “If a constitutional guarantee is to mean anything, it must mean that any citizen can complain to the courts if there is a violation of it… A citizen should not have to wait until he is prosecuted before he may assert his constitutional rights.”

    [FYI, Colin Chan was a case regarding Jehovah’s Witnesses. The constitutional right at stake was the freedom of religion.]

    I suspect that the Assistant Registar decided the way she did because M Ravi did not follow the proper procedure for launching a constitutional challenge. The proper means to do so would be through an application for judicial review.

    • 2 MG 21 December 2010 at 12:03

      “I suspect that the Assistant Registar decided the way she did because M Ravi did not follow the proper procedure for launching a constitutional challenge. The proper means to do so would be through an application for judicial review.”

      A fully baseless suspicion which is entirely wrong. This application was brought by OS, which is the proper process for judicial review applications.

  2. 3 KiWeTO 11 December 2010 at 10:12

    When you don’t exist as recognized sub-class/group, there can be nothing but frivolity and vexations about complaining about discrimination.

    3rd-world legal systems are what we have as an outcome. There need no respect be if there be nothing seen to respect.


  3. 4 Kudaclub 11 December 2010 at 15:08

    I think for act against the order of nature, rightly so in Singapore, there is nothing to be challenged as the norm of society is against the practice despite a minority group advocates for it to be made legal. We live in a society whereby we have to respect the majority’s norm otherwise if all sorts of minorities wanted to assert their rights, the place will be chaotic. Having said that it is always of course a matter of degree.

    My personal view point however on act against the order of nature however is not acceptable both in Singapore and for the sake of humanity.


  4. 5 winnieyap 11 December 2010 at 18:03

    Geez, more of this kind of opinion.

    Kudaclub, I think it is also against the order of nature to be left-handed. What should we do with such perverse people? After all, as you said, we must respect the majaority’s norm otherwise people will demand rights for minorities. Speaking of which, the majority of Singaporeans are Chinese. Since majority is the same meaning as norm, as you implied, then we should also have laws that make non-Chinese unacceptable otherwise this place will become chaotic, like you pointed out so well. Therefore, all Malays, Indians, Eurasians, Angmohs, etc cannot be tolerated and must face the full force of the law. As you said, for the sake of humanity.

    • 6 Desmond 11 December 2010 at 23:07

      Furthermore to the above, we should have a law that states adultery is punishable by imprisonment of 3 years. Since, majority of Singaporeans are against adultery, and have affairs is totally against God’s law.

      We should have enact a law that states kissing is forbidden since it is unnatural (if from what Kudaclub means by unnatural is “against nature” -> “not found in nature”) since animals don’t kiss, and don’t get me started on french kissing.

      We should also enact a law that states flying on a machine is unnatural and should be banned, also using electricity.

      Maybe what Kudaclub said is right, we should n’t do thinks that are against the order of nature and become like the Armish. Then we would be totally “with the order of nature”

      P.S. Can any show me animals that wear clothes?

  5. 7 Kudaclub 12 December 2010 at 08:57

    I actually expected responses to twist and turn on what I have written. First of all, you have ignored my key words of ” a matter of degree” Secondly, we talk about against the order of nature on sex here and not on race, left handed etc. Thirdly, human is also animal by nature though we like to make it a difference as a higher specie.

    Can you imagine if the whole world is turn into gays and lesbians? The human race will disappear in one to two generations. We in Kudaclub is not against some private arrangement but we are against make it as a norm and be acceptable like in the US same sex marriage etc. in the open.

    We prefer to ride the mormal way bwteen two different sex male and female period.

    VP Exco
    Kuda Club

  6. 8 Kudaclub 12 December 2010 at 09:01

    Desmond, for your information, I have seen some monkeys and dogs wearing clothes on TV. Actually, my neighbour always put a t shirt on his dog. Regarding, kissing, I have seen monkeys doing it and for french, I have seen dogs doing it too. So do open yoir eyes big big lar.

    VP Exco

  7. 9 Gimmeabreak 12 December 2010 at 09:28

    What does “a matter of degree” mean? How many degrees and by whose measure? But why only obsess about sex?

    And if gays are accepted as a norm (but not even a majority), will you become gay yourself?

  8. 10 KiWeTO 12 December 2010 at 09:45

    the signs on the internet highway usually say:

    “Don’t feed the trolls”.

    [I/we? … complex.]

  9. 11 Kudaclub 12 December 2010 at 13:26

    Thats right give me a break. Try not to write rubbish and dont be an asshole.

    As far as our members are concerned, we stand firm in the interest of humanity. We only choose the right target to ride in Kudaclub.

    VP, Exco

  10. 12 tk 13 December 2010 at 10:46

    kudaclub you are an absolute joke.

  11. 13 anti-cult 14 December 2010 at 01:23

    Is Kudaclub a Cult / part of a Cult? Why such an extreme stand? Get a Life. Not everybody has to conform to your “Rules”…. YOU pseudo-KKK clans!!

  12. 14 wikigam 14 December 2010 at 09:51

    To : Kudaclub

    1)Can you list the benefit of 377A to our Nation (Singapore) in term of economy and country developing ?


  13. 15 kudaclub 19 December 2010 at 16:50

    anti-cult, kudaclub is a club not a cult. the club was formed like 10 years ago with a group of friends in the Asia Pacific region with different nationalities from koreans to Singaporeans. We have common interest in social function like karaoke and we choose the right target to ride and we are atrongly against acts against the order of nature though we do not object to private arrangement as a concession from our stand.

    for tk, this is not a joke and we are very serious in what we believe in. you and anti cult may not agreed but we expect you to respect our stand.

    As for wikigam, benefits are numerous to list but one can list reversing a declining population as one among many others.


  14. 16 wikigam 21 December 2010 at 11:04

    To : kudaclub

    1) Can clarify what you mean ” stand” in sentence “we expect you to repect our stand”

    2) Can explain detail your point “a declining population as one among many others” .


  15. 17 Poker Player 21 December 2010 at 13:14

    Lighten up!

    Kudaclub is satire. He is only parodying social conservatives. What more effective argument against them than to imitate their reasoning and speech patterns. Think Tina Fey as Sarah Palin.

  16. 18 kudaclub 25 December 2010 at 07:53

    wikigam, if everyone practices the act aainst the order of nature, where is the next generatio going to come from? from the lab u said and this is also against the order of nature.

    having anal sex is not against the order of nature but for a male to ride on another male is.

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