SINGAPORE — More than six years after the Court of Appeal dismissed a challenge to Section 377A of the Penal Code, which criminalises sex between men, the apex court on Monday (25 January) heard three similar challenges seeking to strike down the law.
The suits by Bryan Choong Chee Hoong, Johnson Ong Ming, and Roy Tan Seng Kee had been thrown out by the High Court in March last year.
The five-judge apex court – comprising Chief Justice Sundaresh Menon and Justices Andrew Phang, Judith Prakash, Tay Yong Kwang and Steven Chong – will issue its verdict at a later date.
Section 377A states that, “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.”
CJ Menon pointed out during Monday’s hearing that the court would have to consider the government’s assurances that it would not proactively enforce the law in reaching its decision, local broadsheet The Straits Times reported online.
“In assessing the constitutionality of 377A today, you have to look at the total package,” he was quoted as saying.
The three challenges
The lawyers for Choong, Ong and Tan argue, among other things, that Section 377A was enacted to curb commercial gay sex amongst British civil servants in colonial Singapore; that one’s sexual orientation cannot be changed; and that gay and bisexual men are “doubly criminalised” – by the sexual act itself, and by not reporting these acts to the police.
The challenges came after India’s Supreme Court legalised gay sex in 2018, while Taiwan and Ecuador legalised same-sex marriage in 2019.
Choong is a former executive director of non-profit LGBTQ social support group Oogachaga, while Ong is a disc jockey and music producer known as DJ Big Kid. Tan is a retired general practitioner and LGBT activist.
The Attorney-General’s Chambers contend, among other things, that the three challenges were prompted by foreign judicial pronouncements based on different constitutions, as well as a judicial activist approach that does not feature in Singapore’s legal system.
The AGC maintains that the issue on whether to decriminalise male homosexual sex is for Parliament to decide, and that the scientific evidence on sexual orientation is inconclusive.
Section 377A was enacted in 1938 and public feedback on the law has been divided, with a majority in favour of retaining it, according to surveys.
Other surveys, including one by Yahoo News Singapore in 2018, show society almost equally split on the issue of whether Section 377A should be repealed.
Former Chief Justice Chan Sek Keong, as well as former Attorneys-General Walter Woon and V. K. Rajah, are among those who have argued against retaining the law.
In 2007, the Penal Code was amended after a public consultation and then a debate in Parliament, with heated discussions both inside and outside the House over Section 377A; proponents and opponents petitioned MPs to speak on their behalf.
Prime Minister Lee Hsien Loong said then, “I take my legal advice from the Attorney-General and his advice to the government is quite clear: The continued retention of Section 377A would not be a contravention of the Constitution. The government has not taken this matter lightly.”
Singapore should strive to maintain a balance, he said, “to uphold a stable society with traditional heterosexual family values, but with space for homosexuals to live their lives and to contribute to the society”.
He also noted that homosexuals work in all sectors and are “free to lead their lives” with gay bars and clubs out in the open.
“They don't have to go underground. We don't harass gays. The government does not act as moral policeman. And we don't proactively enforce Section 377A on them,” Lee told MPs during the debate.
But the tone of the overall society remains conventional and straight, and society does not approve of gays “actively promoting their lifestyle to others or setting the tone for mainstream society,” he said.
“It's better to accept the legal untidiness and the ambiguity. It works, don't disturb it...I don't think it's wise to try to force the issue,” he added.
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