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14 February 2013 (Singapore) – The first of two lawsuits challenging the constitutionality of Section 377A of the penal code which criminalises “any act of gross indecency” between men were heard in the high court today.

The plaintiffs—graphic designers Gary Lim, 44, and Kenneth Chee, 37 (a couple for 15 years)—were represented by Mr Peter Low and Mr Choo Zheng Xi who argued the case before Justice Quentin Loh in a closed-door session. The named defendant is the Attorney General who was represented by the Public Prosecutor.

The main argument put forward by the plaintiffs is that S377A is “absurd, arbitrary and unreasonable” because, among other things, it criminalises something that individuals cannot change and is unclear on what constitute “gross indecency”.

The plaintiffs argue that its symbolic representation of public morality is flawed because there are many morally objectionable acts that the law does not criminalise. Yet, by leaving S377A on the law books, it causes psychological harm through stigmatisation, makes it more challenging for HIV/AIDS outreach, and causes gay men to become vulnerable to blackmail.

Section 377A fails the test of constitutionality because it is unclear as to what it criminalises (except for singling out gay men), when it is enforced, and—more importantly, how it achieves the stated objectives of the law.

In response, the Attorney General Chambers (AGC) put forward two chief arguments for retaining the section:

1) The legislature is entrusted by the constitution to enact laws on behalf of the electorate. According to the AGC, this puts the burden of proving that there is no justification for the law on the plantiffs. Furthermore, acts of parliament should be accorded the “presumption of constitutionality.” The AGC argued that it is entirely permissible for parliament to legislate for public morality, citing the example of other laws such as obscene publications, which operate along the same principle. While there may be other areas concerning public morality that parliament chooses not to legislate on, it is nevertheless “a choice that the legislature has made and it is empowered to do so simply because its actions are mandated by the electorate.”

2) S377A does not discriminate by sexuality-identification but by gender as it equally applies to non-gay identified men. The AGC then tried to justify this gender discrimination by referring to the 1921 House of Lords debate where it heard that women tend to share the same bed more often than men and hence more liable to blackmail and that proscribing lesbian acts will encourage women to commit the crime.

The judge has reserved judgment on the case; the same judge will be hearing the second lawsuit challenging the constitutionality of S377A by Mr Tan Eng Hong on 6 March 2013.




 

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Posted by rangsit Icon
Posted on 15/02/2013, 12:17 PM
This is really nightmarish how the AGC argues:
1: "presumption of consitutionality": this is rubbish. Paliaments can err and they do this very often. This is the reason, many countries have a constitution court, to review the constitutionality of acts of parliament. Furthermore the argument citing laws regarding obscene publications is totally off track! Obscene publications can have a disturbing effect to certain people and therefore can create a nuisance, also obscene publications can be received by persons requiring specific protection against such, for example children. On the other hand, same gender relationships or intimate actions, in this case solely among males are normally not manifested in the public space but in the private area and therefore not accessible to third parties (public manifestation of such is an act of indecency and is currently sanctioned by existing laws).
Also, it must be held that Section 377A was never expressly approved by the electorate, but was a law existing since the independence of Singapore, given that British laws were converted into local law. Such laws are now being questioned by the electorate as we can see in the current cases.
2: Despite the rationale of the AGC, it is hard to understand how the argument that Section 377A does not discriminate sexuality identification as it also applies to non-gay identified men. Simply, because non-gay identified men, will normally not enter into intimate acts with other non-gay identified men! Furthermore, with todays means of science, crime investigation it is totally deplaced to try to use an analogy of a House of Lords debate from 1921. Also number of blackmail cases claiming such acts is almost non existent, blackmail is a criminal offense per se and civil as well as criminal laws have severe sanctions or remedies for such.
Posted by denykeys Icon
Posted on 17/02/2013, 04:17 PM
Even discrimination by gender itself is morally wrong; the question is, WHY SHOULD THERE BE DOUBLE STANDARDS?
Is a gay any different from lesbians? They are both homosexuals.
If lesbians can make love to one another, why not extend the same right to gays too?
Penal Code 377A is seriously inherently flawed; if the underlying rationale behind its discrimination against gay sex is to ban/discourage homosexual behaviour in Singapore, it might as well ban lesbian sex too.
Posted by bengoh Icon
Posted on 20/02/2013, 10:51 AM
We should take things a step at a time. 377A is a law, it criminalise the people involve in the act. Why penalise those who have a problem? Be it genetic, mental or born this way, it is not their choice. Same goes for suicide act, those not dead will face legal prosecution. They need help not extra problem!
Simply put, attempting suicide is illegal in Singapore. It is punishable with a year’s jail, or fine, by section 309 of the Penal Code. However, in reality it is rarely enforced, similar to the laws on homosexuality, section 377A. This is so as not to aggravate the delicate emotional well-being of an already suicidal person. All criminal offences, such as section 309, are prosecuted only upon the approval of a Public Prosecutor. Therefore, a person who attempts suicide and fails is rarely punished.
Posted by teentitans Icon
Posted on 22/02/2013, 08:41 PM
this...is simply mind fk..
Posted by jw008 Icon
Posted on 27/02/2013, 12:22 PM
1) Yep. rangsit makes sense. To suggest that Legislature EQUALs Constitutionality BECAUSE they have the mandate of the ELECTORATE is unsound. However, this is the presumption of the Singapore establishment.
And truth be said, for now at least, while the ruling party retains 2/3rds majority, they DO have the GODLY ability to amend the constitution. So, in the case of Singapore, it is probably true that the Singapore electorate have given the ruling party the ultimate powers. Let's see how long this lasts, given the way the ground swell is shifting away from the ruling party.
2) Isn't discrimination by gender, still discrimination?
And, in the expedience of law, isn't a gay person identified by gay acts, and a str8 guy but the absence of such?
So, by making the gay act illegal, it is discrimination against gays?
Put it simply, if we BAN smoking (oh how I wish!), are we discriminating against smokers (those who smoke)? Or is this wrong since it equally applies to EVERYONE? After all, EVERYONE can smoke right?
Such an unsound argument. Trust our highest legal eagles to come up with it.
Posted by jw008 Icon
Posted on 27/02/2013, 12:22 PM
1) Yep. rangsit makes sense. To suggest that Legislature EQUALs Constitutionality BECAUSE they have the mandate of the ELECTORATE is unsound. However, this is the presumption of the Singapore establishment.
And truth be said, for now at least, while the ruling party retains 2/3rds majority, they DO have the GODLY ability to amend the constitution. So, in the case of Singapore, it is probably true that the Singapore electorate have given the ruling party the ultimate powers. Let's see how long this lasts, given the way the ground swell is shifting away from the ruling party.
2) Isn't discrimination by gender, still discrimination?
And, in the expedience of law, isn't a gay person identified by gay acts, and a str8 guy but the absence of such?
So, by making the gay act illegal, it is discrimination against gays?
Put it simply, if we BAN smoking (oh how I wish!), are we discriminating against smokers (those who smoke)? Or is this wrong since it equally applies to EVERYONE? After all, EVERYONE can smoke right?
Such an unsound argument. Trust our highest legal eagles to come up with it.
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