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377A objective ‘clear’, High Court dismisses challenge

SINGAPORE — The High Court has dismissed one of two legal challenges that Section 377A (S377A) of the Penal Code — which criminalises sex between gays — is unconstitutional, ruling that its objective of criminalising a conduct that “is not acceptable in society” is “clear”.

A view of the Supreme Court along Hight Street in Singapore.

A view of the Supreme Court along Hight Street in Singapore.

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SINGAPORE — The High Court has dismissed one of two legal challenges that Section 377A (S377A) of the Penal Code — which criminalises sex between gays — is unconstitutional, ruling that its objective of criminalising a conduct that “is not acceptable in society” is “clear”.

In his 92-page judgment, Justice Quentin Loh said that in Singapore’s legal system, whether a social norm that has “yet to gain currency” should be discarded or retained is decided by Parliament — which in 2007 had voted to retain S377A.

“To my mind, defining moral issues need time to evolve and are best left to the legislature to resolve,” said Justice Loh, noting that Singapore society is “in the midst of change”.

He added: “It is not that the courts do not have any role to play in defining moral issues when such issues are at stake. However, the court’s power to intervene can only be exercised within established principles.”

Graphic designers Gary Lim Meng Suang, 44, and Kenneth Chee Mun-Leon, 37, who have been a couple for 15 years, had contended that the statute discriminates on the basis of sexual orientation, which makes it a violation of Article 12 of the Constitution stating that “all persons are equal before the law and entitled to the equal protection of the law”.

Represented by lawyers Mr Peter Low, Mr Choo Zheng Xi and Ms Indulekshmi Rajeswari, they had argued that S377A is “absurd, arbitrary and unreasonable”.

Since S377A is selectively and arbitrarily enforced, it does not serve the function of signalling that male homosexual conduct is undesirable and should not be practised openly, Mr Low had argued.

However, in his ruling, Justice Loh said that this argument was “without merit”. “It is questionable whether in order for a criminal provision to fulfil its function that it must be enforced,” he said.

“In the case of S377A, the legislature has decided that retaining the section without advocating the enforcement is enough to fulfil the purpose of S377A.”

As for Article 12, Justice Loh noted that Parliament is entitled to pass laws that deal with “the myriad of problems that arise from the inherent inequality and differences pervading society”.

In doing so, it is “inevitable that classification will produce inequality in varying degrees”.

Therefore, “equality before the law and equal protection of the law under Art 12 (I) does not mean that all persons are to be treated equally, but that all persons in like situations are to be treated alike”,” he said.

The views aired during the parliamentary debate in 2007 “are without a doubt controversial and disparate among various segments of our society”, but what is clear is that “Parliament has decided that S377A should be retained”, Justice Loh said.

“Our courts cannot substitute their own views for that of Parliament,” he added. The judge has reserved judgment on the second challenge brought forward by Mr Tan Eng Hong.

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