377A challenge: Lawyers use legal, scientific arguments to contest law’s validity

SINGAPORE — The second and third of three challenges to Section 377A of the Penal Code were heard in the High Court on Monday (Nov 18), as lawyers used both legal and scientific arguments to support their claim that the law should be struck down. The first of the challenges was heard last week.

One case on Monday was filed by human rights lawyer M Ravi, who was representing Dr Roy Tan Seng Kee, a 61-year-old retired general practitioner and former organiser of the annual Pink Dot event for the lesbian, gay, bisexual and transgender (LGBT) community.

Mr Ravi argued that it remains “impossible” for a gay or bisexual man here to predict when he may be investigated, although the Government had stated that Section 377A, which ostensibly criminalises sex between men, will not be proactively enforced.

He said that the element of uncertainty remained because a policeman can be penalised for not acting on the arrestable act.

The other case on Monday was set out by Mr Johannes Hadi, Mr Suang Wijaya and Mr Eugene Thuraisingam of law firm Eugene Thuraisingam LLP, They represent disc jockey Johnson Ong Ming, 43, also known as DJ Big Kid.

They argued that Section 377A violates the Constitution as it is absurd, irrational and discriminatory to criminalise a person on the basis of his natural, unchangeable identity and for non-harmful private acts.

Mr Ong’s lawyers based their argument on expert evidence showing that a person's sexual orientation is innate and unchangeable.

The arguments were heard in chambers before Justice See Kee Oon in the High Court. The three Section 377A challenges started last Wednesday and are closed to the public.

The lawyers for the other plaintiff, Mr Bryan Choong, completed their submissions last Wednesday. Mr Choong used to be the executive director of Oogachaga, a non-profit organisation working with the LGBT community.

Next to build their case were Deputy Chief Counsel Hui Choon Kuen, Deputy Senior State Counsels Denise Wong and Jeremy Yeo and State Counsel Jamie Pang, who represent the Attorney-General (AG). Their submissions will be made public only after they wrap up their case on Wednesday.

OBLIGATION TO REPORT TO POLICE 

In setting out Dr Tan’s case, Mr Ravi relied on provisions under Section 424 of the Criminal Procedure Code and Section 119 of the Penal Code.

The first obligates every person aware of the commission of or the intention of any other person to commit an arrestable offence — including Section 377A — to immediately give information to a police officer.

This effectively imposes an obligation for all gay and bisexual men to report to the police their private acts, making it “incongruous” with the non-proactive enforcement of Section 377A, he said in an email to TODAY, summarising the arguments he gave during Monday’s hearing.

And the second raises the spectre of criminal prosecution of the Singapore Police Force for not preventing sexual acts between consenting males in private, Mr Ravi added. With this, the police have no discretion but to arrest and investigate on information or evidence of private consensual sexual acts between adult males, he noted.

“It is accordingly impossible for a gay or bisexual man Singapore to predict when he may be investigated for engaging in consensual sexual activity with another man,” Mr Ravi said.

“Section 377A read with Section 424 and Section 119 will render Section 377A unconstitutional as the unpredictability and uncertainty about how the law is applied is, in itself, a serious interference with the liberty of gay and bisexual men.”

He further asserted that a measure “will not qualify as ‘law’” where it is so absurd or arbitrary that it “could not have been contemplated by our Constitution framers as being ‘law’ when they crafted the constitutional provisions protecting fundamental liberties”.

SEXUAL ORIENTATION 'CAN’T BE CHANGED AT WILL'

Mr Ong’s lawyers gave a more scientific take on their arguments, making it the first time in Section 377A challenges that the court has heard expert evidence on the nature of sexual orientation.

In the previous cases, the court was asked only to take judicial notice of scientific facts, the lawyers pointed out.

In written submissions sent to TODAY, Mr Ong’s lawyers highlighted a state-called expert’s apparent agreement with a psychiatrist they themselves consulted, that a homosexual male cannot wilfully change his sexual orientation or attraction.

Dr Cai Yiming — an emeritus consultant with the Institute of Mental Health’s department of developmental psychiatry who was called by the Government to testify — had cited studies showing that some individuals have been found to experience spontaneous and naturally occurring changes in sexual orientation, as opposed to wilful changes.

The lawyers added that another expert called by the Government, Dr John Tay Sin Hock, who is a retired geneticist and practising doctor and who was formerly the head of division of human genetics at the National University of Singapore, did not express an opinion on this matter.

Does sexual orientation or attraction have social environmental causes? There is no credible scientific evidence in support of this hypothesis, the lawyers said, referring to an expert they consulted, Dr Rajesh Jacob, a senior consultant psychiatrist at Promises Clinic.

They highlighted as well that Dr Cai had accepted that it is not disputed by experts in the field that genetics has some contribution to the causation of homosexuality. Dr Cai also cited studies indicating that hormones play a part.

Dr Tay’s opinion is that cultural and environmental factors likely play a role in determining sexual orientation, but the lawyers argued that no weight should be given to this assertion as he cites no material to support his claim.

The lawyers also built their case by recounting their client’s experience.

They said that Mr Ong, who has never felt attracted to the physiques of women, had tried for a number of years to change his attraction to men by praying, being active in church and dating girls throughout his secondary and junior college years, but he was not successful.

Mr Ong’s homosexuality “would always be a fundamental and unchangeable aspect of him”, they added, noting that their client had started getting together with a man with whom he engages in intimate acts on a regular basis since 2017.

AGC STATEMENT

In a statement on Wednesday (Nov 20), the Attorney-General's Chambers said it has fully responded to the arguments raised by the applicants before the Court and will leave the Court to make its decision on the applications.

One of the applicants argued that the current prosecution position of other offences related to the enforcement of an offence under 377A is unclear, the AGC noted.

"The AG has already stated that where the conduct in question was between two consenting adults in a private place, the Public Prosecutor’s position is that, absent other factors, prosecution under (statute) 377A would not be in the public interest," it said. 

"It would naturally follow from this position that any prosecution under other provisions which would contradict the non-prosecution position of (statute) 377A would likewise not be in the public interest."