Singapores’s S377a: A guide to the gay sex case

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Section s377A of the Penal Code of Singapore states that:  

“Any male person, who, in public or private, commits any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to 2 years.”

Law s377a stems from a British Colonial Penal code 377 enacted in 1871, which was implemented in an effort to stop sodomy, bestiality and necrophilia.

In 2007, the law was repealed in Singapore citing that the law needed to be modernized, and so S377A was introduced to explicitly criminalize all forms of male penetration. The law has been used to effectively punish gay men for having sex with each other.

Long Road to Justice 

Two and a half years ago, Mr. Tan filed his Constitutional challenge to s377a on September 24, 2010. That initial application to challenge s377A had been swiftly rejected by Justice Lai Siu Chiu of Singapore’s High Court in December 2010. The law then was taken up by Human Rights Lawyer M. Ravi who appealed the Court’s decision on his client’s behalf, citing that his client “has a personal interest in living a dignified life.” 

Finally, in September of the following year, Mr. Tan’s appeal was heard by the Singapore’s Court of Appeals. It was the first time in history that the Singaporean Court of Appeals agreed to hear a case relating to sexual orientation.  

Nearly a year later in August 2012, the Court of Appeals released a 106-page judgment, deciding to allow the Constitutional challenge against s377A to go ahead, resulting in a major victory for M. Ravi and Mr. Tan.  23 months after Mr. Tan filed his first challenge, he had finally been granted leave to have his case heard in the High Court.

S377A Challenge Heard

On Wednesday, March 6, Mr. Tan’s civil appeal challenging the Constitutionality of statute s377A of Singapore’s Penal Code was finally put forward to the High Court.  

M. Ravi is arguing against Attorney General Aedit Abdullah that the law against gays, s377a, is unconstitutional. M. Ravi’s case is based on two principles within the Singaporean Constitution: that no person shall be deprived of “personal liberty before the law” and “all people are equal before the law and are entitled to equal protection.” 

The Attorney General’s case however, rests on the ‘public morality’ clause in the constitution that argues that because the majority of Singaporeans view gay people as being “immoral,” laws to suppress homosexuality are therefore constitutional.

Abdullah parallels the gay lifestyle to a public health hazard, saying that the laws are non-discriminatory in the same way that the Environmental Public Health Act is non-discriminatory when it prohibits the spreading of human feces as manure.

Justice Quentin Loh is presiding over the case and is generally understood to be non-partisan and has gone into in depth detail with M. Ravi as to how the law is unconstitutional.

Interview with Human Rights Lawyer M. Ravi

In a brief interview with 429Magazine, M. Ravi talked about the court case:  

429Mag: What is like being the lawyer for this court case?

M. Ravi: It’s really challenging being the only human rights lawyer in Singapore fighting various constitutional and Politically sensitive cases. It has been exhausting but very inspiring to see changes taking place and other lawyers recently coming forward.

429Mag: How do you think the court will rule? 

M. Ravi: That is a very difficult question, but judging from the rigor in which the judge questioned the state at the s377A hearing, I am hopeful for a positive outcome. 

429Mag: What is the current political situation for LGBT people in Singapore? 

M. Ravi: Politically, LGBT people in Singapore face a huge backlash from the conservative Christian community, which is evident by the current opposition to my constitutional challenge before the Court. The response became so heated that even the Prime Minister had to calm the situation down by assuring the public that s377A would be retained by the government. 

429Mag: Are you hopeful about the future of changing social policies in Asia? 

M. Ravi: I am very confident that there will be a massive change in social policies in Asia, given my experience in human rights law in the region and based on feedback from the regional human rights networks. At present, there is an increasing dialogue on how to mitigate against discrimination based on sexual orientation. 

Towards A Decision and Its Impact

Justice Loh is expected to release his decision on s377a in the next few days.

Alex Au, a pioneering gay activist, told 429Magazine how he expects the court to rule:  

“Whether win or lose at the High Court stage, the matter is surely going to go to the Court of Appeals again. There is a long track record of constitutional challenges failing; in fact a law academic once told me that since Singapore’s independence in 1965, no constitutional challenge has ever succeeded. If this succeeds it would be the first successful constitutional challenge. This context may explain why even the lawyers challenging the law are saying the odds aren’t better than 50 percent.”

If the court rules in favor of M. Ravi it would be a landmark court ruling not just for Singapore but for all of Southeast Asia. So far, of the 10 countries that comprise the Association of Southeast Asian Nations (ASEAN) none have liberalized LGBT issues, none have approved of same sex marriage and none have adopted Anti-Discrimination Laws. Countries like Malaysia and Indonesia not only do not embrace LGBT issues but explicitly make homosexual activity illegal with grave consequences.

If M. Ravi is able to win a victory in Singapore it would be the first instance of an Anti-Gay legislation being repealed in Southeast Asia. The influence of Singapore is significant because it is a developed first world nation that is often seen as a model for social policies in its region. If LGBT legislation is passed in a historically socially conservative nation, perhaps others could begin to follow.

429Magazine

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