Court upholds law banning gay sex

The highest court in Singapore has upheld Section 377A of the Penal Code, the law that criminalises sex between men, rejecting arguments that the provision contravenes the Constitution.

In ruling that the provision is constitutional, the three-judge Court of Appeal yesterday rejected two separate challenges to strike down the law.

Mr Gary Lim, 46, and Mr Kenneth Chee, 38, as well as 51-year- old Mr Tan Eng Hong, argued that the provision was discriminatory and should be declared void.

Their case was that Section 377A infringed their right to equal protection under the law, as guaranteed by Article 12 of the Constitution, and violated their right to life and personal liberty, as guaranteed by Article 9. The offence carries up to a two-year jail term for men who commit acts of "gross indecency" with other men, in public or private.

Mr Tan first filed a challenge against the statute in 2010 after he was charged with having oral sex with a man in a public toilet. Mr Lim and Mr Chee later filed their own challenge. Their cases were separately dismissed by the High Court last year but their appeals were heard together in July.

Yesterday, in a 101-page written judgment delivered by Judge of Appeal Andrew Phang, the court held that "personal liberty" in Article 9 refers only to the liberty of a person from unlawful incarceration. The court rejected the arguments of the couple's lawyer, Senior Counsel Deborah Barker, that the phrase should be interpreted to include the right to privacy and personal autonomy of an individual to express love towards another person.

As for Article 12, the court held that Section 377A passed a classification test used by the courts to determine whether a statute that differentiates between classes of persons is constitutional.

In fact, Section 377A fell outside the scope of Article 12, which specifically forbids discrimination of citizens on grounds of religion, race, descent and place of birth. The words "gender", "sex" and "sexual orientation" are absent, said the court. It stressed that while arguments mounted by each side of the divide involved "extra- legal considerations and matters of social policy", it can consider only legal arguments.

"Whilst we understand the deeply held personal feelings of the appellants, there is nothing that this court can do to assist them. Their remedy lies, if at all, in the legislative sphere," it said.

Mr Tan's lawyer M. Ravi called the decision a "huge shock".

Mr Lim and Mr Chee, who have been in a relationship for 17 years, said they were "deeply disappointed" and hoped Parliament would - as the court had - consider the issue in detail. "While the legal road for us has ended, we believe and hope that this case has inspired Singaporeans - straight, gay, bisexual and transgender - not to keep silent in the face of prejudice and inequality."

selinal@sph.com.sg

This article was first published on October 30, 2014.
Get a copy of The Straits Times or go to straitstimes.com for more stories.