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s377A – do not disturb?

Will Singapore see a constitutional challenge of Section 377A in court?

“We do not proactively enforce Section 377A… [but] we have decided to keep the status quo on Section 377A. It is better to accept the legal untidiness and the ambiguity. It works, do not disturb it.” – Prime Minister Lee Hsien Loong, 23 October 2007.

The 2007 debate in Parliament on Section 377A, which criminalises consensual sex between adult men, ended with PM Lee’s statement that the Government will retain this law because “a heterosexual stable family is a social norm… and we do not approve of [homosexuals] actively promoting their lifestyles to others, or setting the tone for mainstream society.” Striking a conciliatory tone, he added that “homosexuals too must have a place in this society, and they too are entitled to their private lives… We do not proactively enforce Section 377A.”

Yet off the radar, this law was nevertheless used to prosecute and jail two men in September 2010. In the same month, another man was charged under s377A for sex in a public toilet. When this man’s lawyer M. Ravi filed an application challenging the constitutionality of s377A, the Attorney-General’s Chambers (AGC) removed the charge, substituting it with a charge of public obscenity under Section 294(a). The man, Mr Tan, pleaded guilty to the s294(a) charge and was fined $3,000 in December 2010.

Though the case under the new charge has closed, the questions remain: Why was s377A used in the first place, when the lesser charge of s294(a) would have sufficed? Why does s377A, which only targets homosexual acts between men without legal distinction between private and public, consensual and non-consensual, mandate a jail sentence of up to 2 years, while the gender-neutral s294(a) has the option of a fine and/or a maximum jail sentence of only 3 months?

These questions might have been asked and addressed in the constitutional challenge of s377A – but this challenge was then struck out by the AGC. In December 2010 and again in March 2011, the Assistant Registrar and High Court respectively affirmed the AGC’s decision, which prevented the constitutional challenge from being discussed in the courts.

But the latest appeal on 27 September 2011 saw an unusual turn of events. Although Appeal Judges Andrew Phang and V K Rajah and Justice Judith Prakash reserved judgment at the end of the two-hour session, they did not clearly reaffirm the prior decisions made by AGC, an Assistant Registrar, and High Court judge Lai Siu Chiu. Instead, the three judges relentlessly questioned Deputy Public Prosecutor (DPP) Aedit Abdullah, often criticizing what one of them described as the “slippery slope” and “circular logic” of AGC’s arguments.

The spectre that is not real?

It is important to remember that even if the three judges decide to rule in favour of M. Ravi and his client, the appeal is still in its early stages. As emphasised by one of the Appeal Judges, the Court of Appeal was not concerned with the arguments of the actual constitutional challenge, because their duty was merely to decide if the s377A challenge should be heard in court or not.

The AGC argued against this, stating that Mr Tan’s actual rights and interests were not affected because he had not been prosecuted under s377A, and therefore did not suffer an injury or any credible threat of prosecution. In fact, there was “nothing left for him to complain about”, according to DPP Abdullah, who also pointed out that s377A had never been used against Mr Tan in the privacy of his home. “It is a spectre that is not real,” he said. In legal terms, AGC was arguing that Mr Tan had no locus standi and there was insufficient controversy in the issue, and therefore the challenge should not be brought to court.

However, in March 2011, this same argument had already been rebutted by Judge Lai Siu Choo, who echoed Justice Karthigesu J.A in Chan Hiang Leng Colin v Minister of Information and the Arts [1996] (“Colin Chan”) that “a citizen should not have to wait until he is prosecuted before he may assert his constitutional rights”, thus concluding that “Tan undoubtedly had locus standi.” Judge Lai also reaffirmed M. Ravi’s point that “the spectre of future prosecution [by s377A] was the second way Tan’s rights could be said to have been infringed.”

M. Ravi emphasised that s377A was indeed a real threat, given that Mr Tan had initially been charged with this. Although the charge was amended after the constitutional challenge, having been publicly identified as a homosexual man, Mr Tan now has to live in fear that the police might decide to change their currently non-proactive stance and arrest him, even in the privacy of his home. “This is not his lone predicament, but a predicament shared by thousands of gay men in Singapore, as they go about their otherwise law-abiding, tax-paying lives.”

No Executive Orders by Parliament

The AGC also frequently spoke of the assurance given by PM Lee, that “we do not proactively enforce Section 377A.”

However, M. Ravi pointed out that this was merely a Parliamentary discussion and not an Executive Order, which has the binding force of law. He compared the situation to Colin Chan [1996] and Eng Foong Ho v Attorney-General [2009] (“Eng Foong Ho”) in which Executive Orders were made. However, given the lack of an Executive Order on s377A’s supposed non-enforcement status, if the police chose to investigate and prosecute men for private consensual homosexual sex, it would still be perfectly legal.

M. Ravi also cited a few cases in which police enforcement took place without actual prosecution. For example in 2005, a man who was robbed after having sex with another man, reported the theft to the police. Instead of being sympathetic to the fact that he was robbed, the police warned him with respect to s377A. Even though he was never prosecuted, the police sent a letter to his employers about the s377A warning, which resulted in an unpleasant public spate in the media, and him eventually losing his job.

In general, the judges agreed that PM Lee’s statement was not a binding promise. One of them commented that “377A seems alive and kicking!” and that “as long as [the law] is on our statute books, you can’t say it won’t be used” – a point that the AGC also conceded. Another one reiterated that a mere “Parliament [discussion] does not bind AGC, and AGC does not bind future AGCs.”

On protecting minors and victims of non-consensual sex

The AGC also declared that “there are situations where 377A needs to be enforced, for example, if the people involved are below the age of maturity, or if it was not consensual.”

However, M. Ravi reminded the court that other gender-neutral laws already exist to protect people against such situations. Section 376A, for example, is meant to protect young people from sexual assault, regardless of gender. Section 294(a) protects public decency, and Section 376 protects everyone, regardless of gender, from non-consensual sexual penetration. In other words, even without s377A, gay men who commit crimes could still be convicted under these other Sections that would be equally applied to crimes involving heterosexual or lesbian acts.

Opening the floodgates to trivial constitutional challenges?

Another key thrust of the AGC’s arguments was that if this constitutional challenge was allowed to proceed, there would be a potential “flood of litigation” from anyone who felt that a particular law was unconstitutional. “The courts would be tied up by countless issues brought by people who have suffered no direct impact by the law” in cases that were “divorced from facts,” DPP Abdullah argued. The role of the courts would then shift from being a “litigator of conflicts” to being “a supervisor of Parliament” which should not be the case, he pointed out.

This point was described by one of the judges as a “slippery slope argument”. One of them also disgreed with DPP Abdullah, adding that “as far as we know, there have been no floodgates [causing a flood of litigation] in other countries” which allow constitutional challenges from those who have not been directly prosecuted by the law in question.

M. Ravi also mentioned the similar case of Leung T C William Roy v Secretary for Justice [2004] (“William Leung”) in Hong Kong, in which the Hong Kong Court of Appeal did not make prosecution a prerequisite for a constitutional challenge by a homosexual man. After William Leung [2004], Hong Kong has not experienced a surge in litigation, M. Ravi added, and there are many other factors that inhibit litigation besides standing: cost, time, even ability to find legal counsel willing to take on constitutional challenges.

An “exceptional case” of public interest?

M. Ravi also argued that this s377A constitutional challenge also fits the category of “exceptional cases”, as cited in William Leung [2004] which required “a cogent public or individual interest which could be advanced by the grant of a declaration” for a constitutional challenge to be heard.

He described the many ways in which gay men suffer under s377A even without actual prosecution – through passive enforcement that encourages abuse and exploitation of gay men, and a fear of prosecution that hinders their ability to access essential services for health and legal justice. According to M. Ravi, these inequalities suffered by gay men due to s377A make it a matter of public interest that deserves a constitutional challenge in court.

He also pointed out the legal incongruence with the Government’s latest statement at the UN CEDAW session, that “the principle of equality of all persons before the law is enshrined in the Constitution of the Republic of Singapore, regardless of gender, sexual orientation and gender identity” (Section 31.1, Pre-session working group report, CEDAW, July 2011).

Unfortunately, during the Court Appeal, the AGC did not address these arguments about the sufficient controversy created by the harmful trickle-down effects of passive enforcement for all gay men, except to repeat PM Lee’s assurance that s377A “would not be proactively enforced.”

Implications of a constitutional challenge of s377A

The difficulties involved in bringing the constitututional challenge of s377A to court is part of a broader picture of Singapore’s civil liberties, because the attitude towards one civil liberty issue necessarily pervades another, creating the overall climate for a country. A simple indicator of this is Singapore’s hesitation in signing the UN International Covenant on Civil and Political Rights (1966), which 74 countries have signed, and 167 more ratified or acceded to.

In such a climate, if a constitutional challenge of s377A is heard in court, this could potentially be a watershed case for Singapore’s civil liberties. Then again, will this have any real effect, in light of PM Lee’s prior declaration in 2007 that “the continued retention of section 377A would not be a contravention of the Constitution”?

The answer may well be a surprising yes. In 2009, the Law Minister K Shanmugam stated that while the present-day Government will not decriminalise gay sex, the courts have the power to decide how the law, Section 377, is applied. This comparatively relaxed attitude can be sharply contrasted to the Law Minister’s statement in 2010, in which he explicitly supported the mandatory death penalty as a “trade-off” the Government makes to protect “thousands of lives”. Perhaps the Government views a substantive voiding of s377A as a relatively low-risk political gamble that would improve Singapore’s international reputation, and stem the discontent of civil rights activists.

Whatever the political reasons, if s377A is modified or declared void due to a successful constitutional challenge, it would be a first for Singapore, and a step forward not just for gay men, but for supporters of general civil liberties. Even an unsuccessful constitutional challenge in court would openly address various civil liberty issues, and set the stage for future discussion. However, if a constitutional challenge is denied in spite of what the judges themselves describe as AGC’s “slippery slope” argument and “circular logic”, this would beg many more questions why – but for now, the jury is still out.

By Lisa Li