SINGAPORE: The High Court is set to hear whether a section of the law which criminalises gay sex is unconstitutional. This follows a ruling by the Court of Appeal on Tuesday on a bid by Tan Eng Hong to have Section 377A of the Penal Code declared unconstitutional.
This section of the law states that a man who commits any act of gross indecency with another man shall be punished.
Tuesday's ruling
overturns an earlier High Court decision, which had upheld the move by
the assistant registrar to strike out the application.
Tan was arrested for having oral sex with another man at a public toilet in CityLink Mall on March 9, 2010.
He
applied to have 377A of the Penal Code declared unconstitutional for,
among other things, violating his right to personal liberty.
The
charge against Tan was changed to a different section of the Penal Code -
Section 294(a) - on October 15, 2010, to state that he had committed an
obscene act in a public place.
Tan, and his partner, subsequently pleaded guilty to the amended charge. Each was fined S$3,000.
However,
in the midst of the case, and before Tan and his partner pleaded
guilty, the Attorney-General moved to strike out Tan's application to
have 377A declared unconstitutional.
On December 7, 2010, the
assistant registrar struck out Tan's case on the grounds that it was,
among other things, an abuse of court process.
Tan appealed to
the High Court but the appeal was dismissed as the judge ruled that
there was no real controversy to be decided. This stemmed from the fact
that Tan had already pleaded guilty to and was convicted of a different
charge.
Tan then took his case to the Court of Appeal, which
disagreed with the High Court ruling. It ruled that Tan has a right to
apply to pursue the constitutional challenge.
The Court of
Appeal, presided by Judge of Appeal Andrew Phang, Judge of Appeal V K
Rajah and Justice Judith Prakash, said in a 106-page judgement that they
found an arguable case on the constitutionality of Section 377A that
ought to be heard in the High Court.
They explained that Tan was
at the outset arrested, investigated, detained and charged exclusively
under Section 377A. This, they said, squarely raises the issue as to
whether Tan's initial detention and prosecution were in accordance with
the law.
Secondly, there is a real and credible threat of prosecution under Section 377A.
Based
on these two points, the judges said there is a real controversy to be
decided. They said Tan will be allowed to vindicate his rights before
the courts based on a finding that there is an arguable violation of his
constitutional rights.
"The principle of access to justice calls for nothing less," the judges said in their document.
The
judges also wanted to acknowledge that Section 377A in its current form
extends to private consensual sexual conduct between adult males,
adding that "this provision affects the lives of a not insignificant
portion of our community in a very real and intimate way."
"The
constitutionality or otherwise of Section 377A is thus of real public
interest. We also note that Section 377A has other effects beyond
criminal sanctions," the judges said.
Tan's lawyer, M Ravi, told Channel NewsAsia that his client will be pursuing his case.
-CNA/ac
About time the 377A receives a revision. I find it appalling that consenting adults don't get to fuck who they want to fuck.
"Tan was arrested for having oral sex with another man at a public toilet in CityLink Mall on March 9, 2010."
Said many times, do in private, and make sure there are no complaints. No need to let neighbour or passers by see. Don't do in public place.
What constitutional right to do oral, or anal sex in public toilet, with witnessess? Whether between same sex or opposite sex.
Originally posted by mancha:"Tan was arrested for having oral sex with another man at a public toilet in CityLink Mall on March 9, 2010."
Said many times, do in private, and make sure there are no complaints. No need to let neighbour or passers by see. Don't do in public place.
What constitutional right to do oral, or anal sex in public toilet, with witnessess? Whether between same sex or opposite sex.
Read carefully. He was charged under Section 377A initially and that's what he was challenging. He accepted the other charge that you think he's contesting.
The petitioner is guilty of what he did, but is taking the opportunity to take another dig at Sect 377A PC, which the PP wantonly uses without thinking.
The issue is being rehashed, but separate from the case at hand, which has been dealth with.
s377A.. sandwiched between sex with the dead and animals. lol
If I am not mistaken, Singapore like MY are not parties to the UN Convention for Political and Civil Rights. That itself should be an indicator on how the executive will react to the challenge.
But the mere fact for the first time a constitutional challenge is allowed, albeit a few have all failed in previous years.. *remembed the hudud ban? - challenge failed. Ban reasons -to promite racial and religious harmony "
Looking at the entire context, from Minster of Law's statements, PM Lee, the Judicial reasoning to the parliament and ultimately executive zeal, to repeal or void will have far wider impact to the entire political climate of Sg not to mention other civil liberty groups.
The consequences needs to be fully explored. If say, Courts rules unconstitutional, it's still a long way from being repealed or voided. Is that a low level political gamble ? If so, again the repecussions by other civil liberty rights groups on other issues ? But the successful challenges itself will open up to more constitutional challenges.
Pandora's Box will surely be opened.
Anyways, it will be an interesting development that will have significant impact on how Sg will be governed in the next decade.