Trio appealing against court’s ruling on Section 377A

SINGAPORE — A gay couple and another man are seeking for Section 377A of the Penal Code, which criminalises sexual acts between men, to be declared void in its entirety.

The couple — Mr Lim Meng Suang, 46, and Mr Kenneth Chee Mun-Leon, 37 — are appealing against the dismissal of their earlier challenge to declare the statute unconstitutional.

Together with Mr Tan Eng Hong, 51 — whose challenge was also dismissed by the High Court — they are contending that the law violates Articles 9 and 12 of the Constitution, which protect life and personal liberty and against unlawful discrimination, respectively.

In a joint hearing yesterday, the couple’s lawyer, Senior Counsel Deborah Barker, submitted that Mr Lim and Mr Chee were not seeking to change the Constitution, but only to enforce it.

This does not “thrust this Court into the thick of social controversy” as the Attorney-General had suggested, she argued.

Should the appeal not succeed, they want, as an alternative, for the Court of Appeal — the highest court of the land — to modify the statute to exclude consensual acts in private between adults and omit the words “in private”.

“The appellants are not asking for ‘social change’ or the affirmation that male homosexual conduct is acceptable in Singapore,” Ms Barker said, during the two-hour submission. “Instead, the appellants call on this court to find that the majority cannot through the guise of public morality target an unpopular minority group by restricting their intimate conduct in private.”

She also argued the statute was passed as long ago as 1938 by a colonial government and at a time when societal norms were vastly different.

Lawyer M Ravi, representing Mr Tan, argued that there was no “rational basis” for criminalising male homosexuality, but not female homosexuality and that it was “discriminatory” and “prejudiced”.

He also submitted that the statute was “grossly disproportionate” for the sake of expressing disapproval of homosexual conduct.

In response, Senior Counsel Aedit Abdullah, who represented the Attorney-General, argued that Section 377A does not violate “in any way” the two articles in the Constitution and that its purpose of upholding public morality is a permitted purpose and remains valid.

He also said that whether the statute included female homosexuality was “immaterial” and that a contest between values is best deliberated in Parliament and not in a judicial setting.

Mr Lim and Mr Chee, who have been a couple for 17 years, had contended that Section 377A discriminates on the basis of sexual orientation, but had their challenge dismissed by the High Court last April. Mr Tan who was arrested for having oral sex with another man in a public toilet in 2010 is the first to challenge the statute. The three later decided to file their appeals together.

The hearing continues today.