Section 377A stays on the books, but cannot be used to prosecute men for having gay sex, rules Court of Appeal

The statements reflected the Government's position that the law would be retained but would not be proactively enforced.
PHOTO: The Straits Times file

SINGAPORE - The Court of Appeal on Monday (Feb 28) ruled that Section 377A of the Penal Code - which criminalises sex between men - stays on the books but cannot be used to prosecute men for having gay sex.

The ruling by a five-judge panel, delivered by Chief Justice Sundaresh Menon, follows constitutional challenges to the law brought by three men.

The trio were: Dr Roy Tan Seng Kee, a retired general practitioner and activist for lesbian, gay, bisexual and transgender (LGBT) rights; Mr Johnson Ong Ming, a disc jockey; and Mr Bryan Choong, the former executive director of LGBT non-profit organisation Oogachaga.

The court held that Section 377A was legally unenforceable because of statements made in Parliament by Prime Minister Lee Hsien Loong in 2007, and a press release by Attorney-General Lucien Wong in 2018.

The statements reflected the Government's position that the law would be retained but would not be proactively enforced.

On Monday, the court said that given its ruling, the three men cannot be said to face any real and credible threat of prosecution under this provision at this time, and thus, their constitutional rights have not been violated.

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In arguments before the court in January last year, the trio contended that Section 377A, which was enacted in 1938, should be struck down as it violates Article 12 of the Constitution, which guarantees equality before the law.

They argued the law criminalises sex acts only between homosexual men, but not acts between homosexual women or heterosexuals.

The provision makes it a crime for a man, whether in public or in private, to commit any act of "gross indecency" with another man, and carries a jail term of up to two years.

They argued men were being treated unequally because women cannot be punished for acts of gross indecency.

They also argued it was absurd to criminalise a particular sexual orientation when scientific evidence shows that sexual orientation cannot be voluntarily changed.

Mr Ong was represented by Mr Eugene Thuraisingam; Mr Choong was represented by Senior Counsel Harpreet Singh Nehal; and Dr Tan was represented by Mr M. Ravi.

This article was first published in The Straits TimesPermission required for reproduction.