APEX COURT REJECTS CONSTITUTIONAL CHALLENGES AGAINST SECTION 377A

SINGAPORE — The highest court of the land yesterday upheld the law criminalising sex between men, ruling that the guarantee of equal protection under the law as enshrined in Article 12 of the Singapore Constitution touched only on issues relating to religion, race, place of birth and descent, not gender, sex and sexual orientation.

Neither does the statute violate the right to life and liberty — as stipulated in Article 9 — as this referred only to the personal liberty of a person from unlawful incarceration and not the right of privacy and personal autonomy.

The apex court’s ruling, released yesterday in a 101-page grounds of decision, was the result of two separate challenges to the constitutionality of Section 377A.

Mr Tan Eng Hong, 51, who was caught having oral sex with a man in a public toilet, was the first to launch the legal bid. Later, gay couple Lim Meng Suang and Kenneth Chee pursued a similar challenge. Both cases were heard separately and dismissed by High Court judge Quentin Loh last year, which led them to bring their appeals to the apex court in July this year.

In dismissing their challenges, Judge of Appeal Andrew Phang, who heard the cases together with Justices Belinda Ang and Woo Bih Li, emphasised that the finding would not impact the freedom of individuals and groups to practise their values within the boundaries of the law. This freedom, however, “cannot … extend to an insistence by a particular group or individual that its/his values be imposed on other groups or other individuals”, he said.

Justice Phang noted the “vexing difficulty” in dealing with the extralegal considerations surrounding the topic, but highlighted the “utterly vital” role of the apex court as a neutral arbiter in the matter.

“All that the court can — and must — be concerned with in these circumstances is whether any fundamental rights under the Singapore Constitution … have indeed been violated. While we understand the deeply-held personal feelings of the appellants, there is nothing this court can do to assist them,” the judge said. “Their remedy lies, if at all, in the legislative sphere.”

Arguing their case, lawyer Deborah Barker, who was acting for Mr Lim, 44, and Mr Chee, 37, contended that Article 9 should include “a right of personal autonomy allowing a person to enjoy and express affection and love towards another human being”. She also argued that the law violated Article 12(2), as sexual orientation is a “practically immutable” aspect of one’s identity.

Mr Tan’s lawyer M Ravi argued that the statute was vague, arbitrary and absurd in that it criminalised a minority of citizens on an aspect of their identity that was “either unchangeable or suppressible only at a great personal cost”.

Mr Ravi added that the law was discriminatory for criminalising male homosexuality but not female homosexuality.

Responding to the ruling yesterday, the lawyer described the judgment as “a huge step backwards for human rights in Singapore”. It was disturbing that the court had “thrown this issue back to Parliament” when other Commonwealth countries have dismissed such laws as an “absurd relic of the colonial past”, he added.

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