Leaving Gays or 377A Alone
An interesting development. The judiciary, often unfairly seen as a homogeneous lot from the eyes of pundits, is laying out that 377A can be challenged. The court of appeal allowed Tan Eng Hong to challenge the constitutional basis of 377A and that no crime was committed by him when he had oral sex with another man in a public toilet. Gay rights activists would be pleased. Conservative Christians and Muslims would be displeased.
377A is a live and let live law and the government earlier signaled its intention to leave it as another colonial quirk in 2007. This status quo move was to please both the gay and anti-gay camps in spirit, but turned out that it offended the gay community instead as it essentially made them criminals in the eyes of the law. Yet if it was live and let live, why was this gay man dragged to court and initially charged under 377A? The official line is that he committed an act of public indecency – yes, it was a public toilet. But we don’t hear of heterosexual couples having oral sex in cars and public toilets being arrested for public indecency. M Ravi, the lawyer defending Tay Eng Hong, has a strong case here and after the repeal of the mandatory death penalty in drug offences, fixed another feather in his dandy cap soon.
In 2007, the government pledged that they would leave gays alone, and leave 377A alone. The arrest of Tay Eng Hong in a Citylink public toilet in 2010 showed that the government went back on its word. No more, no less.
SINGAPORE — Singapore’s highest court has cleared the way for a constitutional challenge against a law criminalising sex between men, local media reported Wednesday.
The Court of Appeal on Tuesday struck down a High Court decision disallowing the challenge, launched by a man who was arrested after being caught with a male partner in a public toilet cubicle in 2010.
The new ruling is expected to trigger a fresh debate over a provision in the penal code known as Section 377A, which traces its origins to British colonial rule and carries a maximum penalty of two years in jail for homosexual acts.
While the provision has not been enforced actively by Singapore authorities against men who engage in consensual sex in private, the local gay community and rights activists want it totally scrapped.
The constitutional challenge was first filed two years ago by Tan Eng Hong, a 49-year-old man initially charged under the section after being caught engaging in oral sex with another man in a toilet cubicle at a shopping centre.
After Tan’s lawyer raised the constitutional issue, the charge was reduced by prosecutors to one of committing an obscene act in public, for which the two accused men were fined Sg$3,000 ($2,400) each, the Straits Times said.
Tan pursued his challenge against the provision, saying it clashes with a constitutional article guaranteeing equal protection under the law.
The appeal court’s ruling, published Wednesday on a website run by the Singapore Academy of Law, said the “constitutionality or otherwise” of Section 377A was “of real public interest”.
It said the provision “affects the lives of a not insignificant portion of our community in a very real and intimate way”.
“Such persons might plausibly assert that the continued existence of Section 377A in our statute books causes them to be unapprehended felons in the privacy of their homes,” the ruling added.
Section 377A states: “Any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to 2 years.”
Singapore officials have openly promised that gays won’t be hounded under this law, but say it must stay in the books because most Singaporeans are conservative and still do not accept homosexuality.