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High Court reserves judgment on S377A challenge

SINGAPORE — The High Court reserved judgment yesterday on a challenge — the second such legal action to be heard in less than a month — that Section 377A of the Penal Code which criminalises sex between men, is unconstitutional.

SINGAPORE — The High Court reserved judgment yesterday on a challenge — the second such legal action to be heard in less than a month — that Section 377A of the Penal Code which criminalises sex between men, is unconstitutional.

Lawyers for Mr Tan Eng Hong contend that the statute violates Article 12 of the Constitution, which states that “all persons are equal before the law and entitled to the equal protection of the law”.

The statute of S377A, argued Mr Tan’s lawyer, Mr M Ravi, is “inherently absurd, arbitrary, vague and discriminatory”. He said: “There is no room for doubt that homosexual men are normal, productive, contributing members of our society and yet 377A tells them on a daily basis that their identity renders them criminals.”

In March 2010, Mr Tan was arrested for having oral sex with another man in a public toilet. He then applied to have S377A of the Penal Code declared unconstitutional, and he was preferred a charge of committing an obscene act in public. Mr Tan and his partner were subsequently fined S$3,000.

Mr Tan, 49, then took his application to the Court of Appeal, which ruled that he had the right to apply to pursue the constitutional challenge.

Urging Justice Quentin Loh yesterday to dismiss Mr Tan’s application, lawyers from the Attorney-General’s Chambers argued that the retention of S377A during a debate in Parliament in 2007 was “a conscious and considered legislative decision based on the continuing protection of public morality”.

The State Counsel, led by Senior Counsel Aedit Abdullah, pointed to three tenets which stood out during the 2007 debate.

First, Mr Aedit noted that the majority of Singaporeans still find homosexual acts offensive and unacceptable. Second, the retention of S377A recognises and helps to preserve the heterosexual family as the social norm, he added.

“The retention of S377A and policy of non-enforcement of the section is a political compromise meant to appease a variety of parties.

“It is the balance that has been struck by the legislature, which has had the opportunity and expertise to consider the polycentric nature of the debate,” said Mr Aedit.

Mr Ravi argued that even if the protection of public morality were a genuine and permissible object, S377A bears no rational relation to it.

“Criminalising a minority group for who they are does not advance public morality in Singapore. It merely perpetuates prejudice, which is quite a different thing,” he added.

But Mr Aedit countered that the moral stance taken in respect to sexual acts between homosexual females has not been the subject of debate in Parliament.

“That female with female acts are not caught by S377A is but a reflection of the legislature’s decision not to proscribe such acts. The legislature is entitled to consider what action or whether no action should be taken against various forms of behaviour,” he added.

Last month, Justice Loh had reserved judgment on a constitutional challenge on S377A, brought by two graphic designers who have been a couple for 15 years.

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