Veteran diplomat Tommy Koh calls on S’pore’s gay community to mount challenge against S377A

SINGAPORE — In the wake of India's Supreme Court striking down its law against consensual gay sex on Thursday (Sept 6), veteran diplomat and international lawyer Tommy Koh called on the gay community in Singapore to mount another challenge of a similar law here.

His comments drew support from some senior government officials speaking in their personal capacity, while activists hoped Parliament would review that law.

Commenting on a Facebook post by National University of Singapore law dean Simon Chesterman, who shared The New York Times' report on the news in India, Professor Koh said: "I would encourage our gay community to bring a class action to challenge the constitutionality of Section 377A."

Reminded by another Facebook user that a previous challenge four years ago was struck down by the highest court of the land, Prof Koh, Ambassador-at-Large at Singapore's Ministry of Foreign Affairs, said: "Try again."

TODAY has reached out to Prof Koh for further comments.

In 2014, the Court of Appeal in Singapore upheld Section 377A of the Penal Code, ruling that the guarantee of equal protection under the law — as enshrined in Article 12 of the Singapore Constitution — touched only on religion, race, place of birth and descent, but not gender, sex and sexual orientation.

Asked by reporters on Friday about the Indian Supreme Court ruling, Home Affairs and Law Minister K Shanmugam reiterated Prime Minister Lee Hsien Loong's previous remarks on the Government's position on Section 377A.

In a two-day Parliamentary debate over Section 377A in 2007, Mr Lee said that Singapore was still a conservative society and that the issue cannot be forced upon as it could potentially divide and polarise society.

Mr Lee said again in a BBC interview last year that most Singaporeans would want to keep the statute and that Singapore society "is not that liberal on these matters".

The late founding Prime Minister Lee Kuan Yew was "sympathetic and expressed his understanding for those who are gays", added Mr Shanmugam, who was speaking to reporters on the sidelines of a media briefing.

"Singapore, if you look at it on this issue, is a deeply split society. The majority oppose any change to 377A. They are opposed to removing it. A minority, but I have to say a growing minority, want it to be repealed. The government is in the middle," said Mr Shanmugam.

Mr Shanmugam said his personal view is that when it comes to "people's lifestyles… (and) sexual attitudes… (we) really should be careful in treating them as criminal or criminalising that".

"But again, it would be wrong for me to impose my personal views on society or as a policymaker," he said.

"So I think, really, society has got to decide which direction it wants to go, and the laws will have to keep pace with changes in society and how society sees these issues."

Chiming in in his personal capacity on Friday afternoon, chief of government communications Janadas Devan wrote on Facebook that he supported Prof Koh's position.

"377A is a bad law; it is bad law. Sooner or later, it will go. Pray sooner rather than later," he said.

At a book launch on Friday evening, Mr Ho Kwon Ping, chairman of Singapore Management University, also backed Prof Koh’s stance, stating that it is “fundamentally untenable” for the Government to keep 377A without enforcing it. He questioned what it is doing to the notion of “rule of law”.

“Either you have 377A and you justify to people, which (will cause) a furore, or you repeal. You cannot have your cake and eat it too, and say you want to please everybody, it’s on the statutes, it is illegal in Singapore, but you are not prosecuting,” Mr Ho said in response to a question from an audience of more than 100 tertiary students.

His personal views are that to be anti-LGBT  (lesbian, gay, bisexual and transgender) is to be “on the wrong side of history”, as the issue had long evolved from being one framed around one’s morality or sexual orientation to one of fundamental human rights.

Mr Ho, who is also executive chairman of Banyan Tree Holdings, added that it will be good for Singapore to show that “we are on the right side of history, rather than to be the last country in Asia to repeal such a law”.

“We are certainly not going to be the first country — we are not leading it — but it would be a bit embarrassing to be the last man standing,” he said.

Approached by TODAY, advocacy group Pink Dot Singapore's spokesperson Paerin Choa said: "We hope that Parliament will consider the decriminalisation of Section 377A in the coming Penal Code Review, for lesbian, gay, bisexual, transgender, questioning, queer and gender-diverse (LGBTQ+) Singaporeans, like everyone else, should be equal in the eyes of the law."

Oogachaga, a non-profit organisation working with the community, said that it welcomed Prof Koh's comments. Its executive director Leow Yangfa noted that even though Section 377A is not "proactively enforced, as reassured by PM Lee and others since 2007", its presence "creates an environment where it is acceptable to treat members of the LGBTQ community in an unequal way".

WHAT THE COURT OF APPEAL RULED FOUR YEARS AGO

The apex court in October 2014 upheld the law criminalising sex between men, ruling that the guarantee of equal protection under the law as enshrined in Article 12 of the Singapore Constitution touched only on issues relating to religion, race, place of birth and descent, not gender, sex and sexual orientation.

Neither does the statute violate the right to life and liberty — as stipulated in Article 9 — as this referred only to the personal liberty of a person from unlawful incarceration and not the right of privacy and personal autonomy.

The apex court's ruling was the result of two separate challenges to the constitutionality of Section 377A.

Under the provision, a man found to have committed an act of "gross indecency" with another man could be jailed for up to two years. The law does not apply to homosexual acts between women.

Mr Tan Eng Hong, 51, who was caught having oral sex with a man in a public toilet, was the first to launch the legal bid. Later, gay couple Lim Meng Suang and Kenneth Chee pursued a similar challenge. Both cases were heard separately and dismissed by High Court judge Quentin Loh in 2013, which led them to bring their appeals to the apex court in July 2014.

"All that the court can — and must — be concerned with in these circumstances is whether any fundamental rights under the Singapore Constitution... have indeed been violated. While we understand the deeply-held personal feelings of the appellants, there is nothing this court can do to assist them," Judge of Appeal Andrew Phang said. "Their remedy lies, if at all, in the legislative sphere."

ADDITIONAL REPORTING BY FARIS MOKHTAR AND WONG PEI TING