LGBT activist launches fresh High Court challenge to Section 377A

SINGAPORE — A long-time activist for lesbian, gay, bisexual and transgender (LGBT) rights in Singapore has mounted a fresh legal challenge to Section 377A of the Penal Code, which criminalises sex between men.

Dr Roy Tan, a 61-year-old retired general practitioner, filed the application in the High Court on Saturday (Sept 21) through his lawyer M Ravi. The application contends that the provision is discriminatory and should be declared void by the court.

Dr Tan said in a media statement on Wednesday that his legal challenge is based on “novel arguments conceived by Mr Ravi”, who has been involved in various high-profile human rights cases.

One of the arguments relates to what he called the “selective enforcement” of the law as to whether or not to prosecute a person under Section 377A.

The law provides that any male person who is caught in the act of “gross indecency with another male person”, whether in a public or a private space, will be punished with up to two years in jail.

Dr Tan said Section 14 of the Criminal Procedure Code, meanwhile, requires the police to “unconditionally investigate” all complaints made in relation to laws including Section 377A, whether the acts occur in public or private.

However, he asserted that the laws were selectively enforced and that current and former attorneys-general (AGs) held differing views on the matter.

Dr Tan stated that the current AG Lucien Wong had said that “where the conduct in question was between two consenting adults in a private place, the public prosecutor had, absent other factors, taken the position that prosecution would not be in the public interest”.

In the media statement, Dr Tan referred to an “incongruity” between the public prosecutor’s discretion over whether to prosecute and a legal requirement for police to investigate all complaints.

This incongruity subjects gay men to the “potential distress” of an investigation into private conduct where they have a “legitimate expectation” that the State will decline to prosecute, he added.

“It represents not only a contradiction between the public prosecutor's prosecutorial discretion and the non-discretionary carriage of criminal justice on the ground, but is also a restriction on their personal liberty which is not consistent with Article 9(1) of the Constitution,” he said. Article 9(1) states: “No person shall be deprived of his life or personal liberty save in accordance with law.”

Dr Tan asserted that former AGs Mr VK Rajah, Professor Walter Woon and Mr Chan Sek Keong, who subsequently served as Singapore’s Chief Justice before retiring, as well as the current Deputy AG Hri Kumar Nair, have also commented on the “constitutionally unsatisfactory status quo” of Section 377A.

He said that the arguments stemming from the breadth of experience of the former AGs and Mr Nair will be cited as evidence in the legal challenge.

Dr Tan added that the Court of Appeal had erred in finding that Section 377A meets the requirements of the so-called “reasonable classification” test. (In a 2014 case in which Mr Ravi appeared, the Court of Appeal upheld the constitutionality of Section 377A.)

The Singapore courts have used the reasonable classification test to determine whether a statute that differentiates between classes of people is consistent with Article 12 of the Constitution, which states that "all persons are equal before the law and entitled to the equal protection of the law".

Under the test, a statute that differentiates is constitutional if the classification is based on an "intelligible differentia", which means a distinguishing feature that is discernible, and if those distinguishing features bear a rational relationship to the objective of the law.

Dr Tan said Section 377A “fails the reasonable classification test on both counts” because it is not based on intelligible differentia.

He said: “Acts of ‘gross indecency’ may take place between males only, females only and mixed males and females.

SECTION 377A CRIMINALISES SEX 'ONLY BETWEEN MALES'

“However, Section 377A only proscribes acts between males. There is therefore no intelligible differentia as Section 377A is intended to proscribe acts of gross indecency, and such acts cannot be meaningfully distinguished across the three classes listed.”

The challenge against Section 377A by Dr Tan is the third such challenge by a Singaporean in recent times.

In September last year, disc jockey Johnson Ong filed a challenge against the penal code. Two months later, in November, a similar challenge was reportedly mounted by Mr Bryan Choong, former executive director of Oogachaga, a non-profit organisation working with the LGBT community. TODAY understands that both cases are still at the pre-trial conference stage.

Dr Tan said “this is an opportune time” for the courts to reconsider the constitutionality of Section 377A, and contemplate striking it down in light of developments around the world.

He said that India had recently struck down a legislative provision that is analogous to Section 377A, and eight other countries have decriminalised same-sex relations.

“I would like to see this archaic law, which has no place in modern society, struck down,” said Dr Tan.

He added: “By institutionalising discrimination against and stigmatising them, it sets the gay community apart from mainstream society.

“This alienates them from having a sense of belonging to the country, a purposeful place in the society and taking pride in its achievements.”