High Court reserves judgement on constitutionality of Penal Code section

SINGAPORE: A hearing into whether a section of the law that criminalizes gay sex is unconstitutional was conducted at the High Court on Wednesday morning.

Justice Quentin Loh has reserved judgement for now, but is expected to deliver his verdict at a later date.

Tan Eng Hong brought his case to court arguing that Section 377A of the Penal Code goes against Article 12 of the constitution, which says all persons are equal before the law.

Section 377A of the Penal Code criminalises sex between gays.

His bid began in 2010 when he was first arrested for having oral sex with another man at a public toilet in CityLink Mall.

He applied to have Section 377A declared unconstitutional for, among other things, violating his right to personal liberty.

Tan was then charged under a different section of the Penal Code, and his application to declare that Section 377A is unconstitutional was initially struck out.

But after he took his case to the Court of Appeal, it ruled last year that he had a right to apply to pursue the constitutional challenge.

The three judges who presided over that hearing said that they found an arguable case on the constitutionality of Section 377A that ought to be heard in the High Court.

In arguing Tan’s case on Wednesday during the closed—door hearing, lawyer Mr M Ravi said that Section 377A is "inherently absurd, arbitrary, vague and discriminatory."

Mr Ravi said: "Article 12 of the Singapore Constitution assures to all individuals the right to equal treatment with other individuals in similar circumstances. That adult consensual sexual relations are fully legal for heterosexuals and lesbians, but criminalised for gay men is a patent example of different treatment in similar circumstances."

He also pointed out that 377A stigmatises gay men on a daily and lifelong basis, makes those who are victims of sexual assault or domestic violence reluctant to report such crimes, and hampers outreach to those suffering from HIV or AIDS.

"By criminalising the gay population, outreach to vulnerable communities is hampered, prevention and treatment services are more difficult or risky for men to access, and at—risk men are left isolated and stigmatised," said Mr Ravi.

But Mr Aedit Abdullah, who is representing the Attorney—General, submitted that 377A has the purpose of reflecting public morality.

He added that Singapore society is still largely conservative on the issue of homosexuality, and that views have been expressed in Parliament that the retention of 377A preserves traditional family values underpinning society in Singapore.

Mr Aedit also argued that 377A is founded on an intelligible difference based on gender.

He pointed out that 377A existed in Singapore’s law long before its constitutional documents were drafted, and it continued to exist and be applied by courts through that process of drafting and beyond.

"It is reasonable to expect that our constitutional drafters, who included judges and other legal experts of the day, would have been aware of Section 377A and have raised concerns if they felt it fell short of the standards of legality... There is no evidence of such concern," added Mr Aedit.

Just last month, Justice Loh also presided over the hearing between the AGC and graphic designers Gary Lim and Kenneth Chee.

The pair also sought a repeal of Section 377A, arguing that it goes against Article 12 of the constitution.

Justice Loh also reserved judgment in that case.

— CNA/xq/ac