Singapore court OKs challenge to anti-gay law

Colin Stewart is a 45-year journalism veteran living in Southern…

Singapore lawyer M Ravi, who filed the challenge against Section 377A. (Photo courtesy of Fridae.Asia)

Singapore might be moving toward striking down its anti-sodomy laws, which reinforce stigma against gay men, even though the laws are rarely enforced.

Court action today makes it possible for the laws to be overturned as a result of a legal challenge that began two years ago.

In late 2010, a case was filed in Singapore’s High Court to challenge the constitutionality of Section 377A, the section in Singapore’s legal system that criminalized male same-sex sexual behavior. Justice Lai Siu Chu’s decision was to strike down the challenge because there was no real controversy.

The case was then sent to the Court of Appeals. I was fortunate to squeeze into the crowded court and was very pleased to hear all the three judges were genuinely agreeable that there is a case to fight. However, since then there was no news and everyone was waiting.

Finally today, Singapore’s Court of Appeal has reversed Justice Lai’s decision that had rejected the challenge to Section 377A. This means the three judges ruled that the case will be reopened in High Court and we shall see the whole battle restarting.

This is probably the first sign that Singapore is heading towards removal of its anti-sodomy laws.

The background of the case and the specifics of today’s decision are described by the online site Fridae.asia:

The challenge was filed by [Tan Eng Hong], who was first charged under section 377A for having oral sex with another consenting male in a public toilet in a shopping mall. On 24 September 2010, M Ravi, acting for Tan, filed an Originating Summons challenging the constitutionality of this law. Mid-October, the Attorney-General’s Chambers (AGC) withdrew the 377A charges, substituting charges under Section 294 (obscene act in public) instead. Tan was later fined S$3,000 for committing an obscene act in public.
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In a 102-page judgment released today, the bench comprising Judges of Appeal Andrew Phang, V K Rajah and Judith Prakesh, said that as the current law extends to private consensual sexual conduct between adult males, it “affects the lives of a not insignificant portion of our community in a very real and intimate way”.

“We are unable to agree with the AG that violations of constitutional rights only occur when a person is prosecuted under an allegedly unconstitutional law. It is clear that violations of constitutional rights may occur earlier, viz, when an accused is arrested and detained under an allegedly unconstitutional law. …

The court says it affirmed Tan to have standing and it found of the existence of a real controversy to be determined in this case arising from a combination of two factors: Tan was at the outset arrested, investigated, detained and charged exclusively under s 377A and secondly, there’s a real and credible threat of prosecution under s 377A.