Court of Appeal rules that Section 377A that criminalises sex between men is constitutional

Court upholds law banning gay sex
It rejects case that Section 377A of Penal Code is unconstitutional
By Selina Lum, The Straits Times, 30 Oct 2014

THE highest court in Singapore has upheld Section 377A of the Penal Code, the law that criminalises sex between men, rejecting arguments that the provision contravenes the Constitution.

In ruling that the provision is constitutional, the three-judge Court of Appeal yesterday rejected two separate challenges to strike down the law.

Mr Gary Lim, 46, and Mr Kenneth Chee, 38, as well as 51-year- old Mr Tan Eng Hong, argued that the provision was discriminatory and should be declared void.



Their case was that Section 377A infringed their right to equal protection under the law, as guaranteed by Article 12 of the Constitution, and violated their right to life and personal liberty, as guaranteed by Article 9. The offence carries up to a two-year jail term for men who commit acts of "gross indecency" with other men, in public or private.

Mr Tan first filed a challenge against the statute in 2010 after he was charged with having oral sex with a man in a public toilet. Mr Lim and Mr Chee later filed their own challenge. Their cases were separately dismissed by the High Court last year but their appeals were heard together in July.

Yesterday, in a 101-page written judgment delivered by Judge of Appeal Andrew Phang, the court held that "personal liberty" in Article 9 refers only to the liberty of a person from unlawful incarceration. The court rejected the arguments of the couple's lawyer, Senior Counsel Deborah Barker, that the phrase should be interpreted to include the right to privacy and personal autonomy of an individual to express love towards another person.

As for Article 12, the court held that Section 377A passed a classification test used by the courts to determine whether a statute that differentiates between classes of persons is constitutional.

In fact, Section 377A fell outside the scope of Article 12, which specifically forbids discrimination of citizens on grounds of religion, race, descent and place of birth. The words "gender", "sex" and "sexual orientation" are absent, said the court. It stressed that while arguments mounted by each side of the divide involved "extra- legal considerations and matters of social policy", it can consider only legal arguments.

"Whilst we understand the deeply held personal feelings of the appellants, there is nothing that this court can do to assist them. Their remedy lies, if at all, in the legislative sphere," it said.

Mr Tan's lawyer M. Ravi called the decision a "huge shock".

Mr Lim and Mr Chee, who have been in a relationship for 17 years, said they were "deeply disappointed" and hoped Parliament would - as the court had - consider the issue in detail. "While the legal road for us has ended, we believe and hope that this case has inspired Singaporeans - straight, gay, bisexual and transgender - not to keep silent in the face of prejudice and inequality."

Why Court of Appeal rejected arguments that Section 377A was unconstitutional
By Selina Lum, The Straits Times, 30 Oct 2014

The Constitution is the supreme law of Singapore and any law enacted by Parliament which is inconsistent with the Constitution is considered void, or invalid.

Mr Tan Eng Hong and gay couple Mr Gary Lim and Mr Kenneth Chee contended that Section 377A contravened Articles 9 and 12 of the Constitution and so should be struck down. But the Court of Appeal on Wednesday rejected their arguments and ruled that Section 377A was constitutional.

Article 9 states that "no person shall be deprived of his life or personal liberty save in accordance with the law".

Senior Counsel Deborah Barker, acting for the couple, argued that the right to life and personal liberty under Article 9 should include a right to privacy and personal autonomy for a person to express love towards another human being. But the court rejected this interpretation, holding that the phrase "life or personal liberty" refers only to a person's freedom from an unlawful deprivation of life and unlawful incarceration.

Mr M Ravi, acting for Mr Tan, argued that Section 377A was so vague, arbitrary and absurd that it did not qualify as "law" under Article 9. The court disagreed that the phrase "act of gross indecency with another man" in Section 377A was vague. Also, the concept of indecency is found in other Singapore laws, such as the Women's Charter and the Children and Young Persons Act.

The court also rejected Mr Ravi's argument that Section 377A was absurd because it criminalised a minority based on a core aspect of their identity which was unchangeable. The court noted that there are still conflicting scientific views on whether sexual orientation is unchangeable so it was premature to express any conclusive views on it. In any case, the supposed unchangeability of sexual orientation is an "extra-legal" issue that is outside the remit of the court.

Article 12 states that "all persons are equal before the law and entitled to the equal protection of the law". It specifically forbids discrimination against Singapore citizens on grounds of religion, race, descent or place of birth.

While Article 12 guarantees equal protection, the courts have long held that lawmakers are allowed to pass laws that treat people differently - if it is based on a reasonable classification.

In Singapore, the courts have used what is known as the reasonable classification test to determine whether a statute that differentiates is consistent with Article 12. Under this test, a statute that differentiates is constitutional if the classification is based on an "intelligible differentia", meaning a distinguishing feature that is discernible, and if the differentia bears a rational relation to the objective of the law.

The court held that the classification prescribed by Section 377A - men who perform acts of gross indecency with other men - was based on an intelligible differentia.

After analysing historical documents on the enactment of Section 377A, the court ruled that there was a "complete coincidence" in the relation between that differentia and the purpose and objective of Section 377A, to enforce societal morality. As such, Section 377A passes legal muster under this test.

The court went on to note that Article 12 does not address the issues involved in Section 377A. While the provision specifically prohibits discrimination based on religion, race, descent or place of birth, the words "gender", "sex" and "sexual orientation" are noticeably absent.

A missed chance to show S'pore as inclusive: LGBT groups
By Lim Yi Han, The Straits Times, 30 Oct 2014

SEVERAL LGBT (lesbian, gay, bisexual and transgender) groups yesterday hit out at the decision by the Court of Appeal to uphold the law which criminalises sex between men.

In a joint statement, 14 groups, including LGBT counselling service Oogachaga and gay rights movement Pink Dot SG, said a chance "to showcase Singapore as a truly accepting, open and inclusive society... has been missed".

On Wednesday, the three-judge Court of Appeal ruled that Section 377A did not violate the Constitution. The judgment added: "(The appellants') remedy lies, if at all, in the legislative sphere."

The case came after a gay couple, and a man charged with having oral sex with another man in a public toilet, applied to the courts to void S377A, arguing it was discriminatory.

The LBGT groups in their statement yesterday added: "(S377A) gives carte blanche for discrimination and reinforces prejudice, leading to censorship in the media and the aggravation of negative stereotypes..."

US-based campaign group Human Rights Watch also said on its website on Wednesday that the ruling is a "major setback for equal rights in Singapore".

MP Baey Yam Keng, who supported the repeal of 377A in Parliament in 2007, told The Straits Times yesterday that the issue was one which "the Government has to make a call when society is ready".

"I can understand where the LGBT community is coming from, but challenging the court is usually not the constructive way to get things done," he said.

"It's better to have more meaningful dialogues within society, so more people are aware of the issue and able to make a call on whether Singapore should move on it."