Questions raised on purpose of gay sex law

Questions raised on purpose of gay sex law

SINGAPORE - The possibility that the law which criminalises sex between men may have been enacted in 1938 to stamp out male prostitution - rather than prosecute the private acts of consenting adults - was raised yesterday in an ongoing court challenge against the provision.

This came after copies of historical documents, the oldest of which dates back to 1901, were circulated by the Court of Appeal to the parties debating the constitutionality of Section 377A of the Penal Code.

However, no conclusion was drawn by the court on whether this was indeed the purpose of the colonial government when it passed the section into law.

The three-judge court reserved judgment on the constitutionality of the provision and will deliver its decision at a later date.

Gay couple Gary Lim, 46, and Kenneth Chee, 38, as well as 51-year-old Tan Eng Hong, are urging the court to strike down or modify the provision, which they argue is discriminatory and a violation of their constitutional rights.

On Monday, the court - comprising Judge of Appeal Andrew Phang, Justice Belinda Ang and Justice Woo Bih Li - distributed the documents to parties and asked for their views.

The five sets of records include correspondence to the Colonial Office on the legal amendments and on prostitution in Singapore and annual reports on the organisation, administration and state of crime in the Straits Settlements.

Yesterday, the respective lawyers for the couple and Mr Tan argued the documents indicated the law may well have been enacted to suppress male prostitution.

Section 377A - which makes it a crime for men, in private or public, to commit acts of gross indecency with other men - was introduced in 1938 by then Attorney-General C.G. Howell.

Mr Howell told the Legislative Council - the lawmakers at the time - that such acts had unfortunately been brought to notice and the law should be strengthened.

Mr Howell said this was because as the law stood, such acts could only be dealt with under the Minor Offences Ordinance and only if committed in public. The ordinance, the appeal court heard on Monday, dealt with acts of "importuning", which means to offer one's services as a prostitute. Also produced was a 1937 annual report, which stated a "widespread existence of male prostitution".

The lawyers argued that these, taken as a whole, indicated that Section 377A was meant to combat male prostitution.

Senior Counsel Deborah Barker, representing the couple, said this inference was in line with the fact that the first reported offence under the section involved a captain prosecuted in 1941 for acts with a young male prostitute at his home.

Mr M. Ravi, representing Mr Tan, argued that Section 377A was never intended to criminalise private, consensual conduct between adult men.

However, Senior Counsel Aedit Abdullah, from the Attorney-General Chambers, strongly cautioned against coming to any conclusion as the documents in question may not give the full picture.

He argued that the law was enacted to combat more than just male prostitution.

Several times in yesterday's hearing, Justice Phang noted that the court cannot express subjective views or act as a mini-legislature to change law.

"We cannot step into the shoes of Parliament. We can only do something if it is within the legal sphere," he said at one point.

selinal@sph.com.sg


This article was first published on July 16, 2014.
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