Singapore—In the challenges to Section 377A of Singapore’s Penal Code, lawyers who are fighting for the repeal of the provision argued in the High Court on Wednesday, November 13, that the law’s original aim was to prevent the proliferation of male prostitution, and it was not targeted against sexual acts between males that are private and mutually consensual.
Furthermore, the lawyers also argued that Section 377A had not been aimed at deeming penetrative sex a criminal act. This, they say, had been covered already under Section 377, which had been repealed 12 years ago.
The final part of their argument is that Section 377A is a violation of the country’s constitution, which guarantees that all have equality under the law, as well as freedom of expression, a report from The Straits Times (ST) states.
The first case to challenge Section 377A was filed by the former executive director of Oogachaga, Choong Chee Hong. Oogachaga is a lesbian, gay, bisexual and transgender (LGBT) non-profit organisation. Mr Choong is also known as Bryan Choong.
His team was made up of Senior Counsel Harpreet Singh Nehal of Audent Chambers, Jordan Tan of Cavenagh Law and Remy Choo Zheng Xi, Wong Thai Yong and Priscilla Chia Wen Qi of Peter Low and Choo, who made the arguments before Justice See Kee Oon in chambers.
To strengthen their arguments for the repeal of Section 377A, the team submitted British National Archives documents that had been declassified in 2014 and 2016, which were letters that had been written between British government officials and colonial authorities in the Straits Settlements from as far back as 1938.
The correspondence reveals that male prostitution had been a growing problem during this time, particularly among civil servants from the UK.
The Legislative Council of the Straits Settlements passed Section 377A to address the issue, and the law was inherited later by Singapore.
The legal team mentioned that in full, the law encompassed not only individuals who commit acts of “gross indecency” but also any male who “abets the commission of, or procures or attempts to procure the commission by any male person of” these acts, making the law cover traffickers and pimps as well, and giving credence to the view that the law’s aim was to curb the growing problem of male prostitution.
The team also asserted that the correspondence had not been considered by the Court of Appeal in 2015 when a similar challenge attempting to question the constitutionality of the colonial-era law was presented by Lim Meng Suang and later dismissed.
Furthermore, the lawyers for Bryan Choong cited a 1938 speech from Attorney-General Charles Gough Howell to the Legislative Council of the Straits Settlements in support of their assertion that Section 377A was not aimed against penetrative sex, but rather non-penetrative acts of “gross indecency”.
Attorney-General Howell had said then, “As the law now stands, such acts can only be dealt with, if at all, under the Minor Offences Ordinance, and then only if committed in public.”
It was argued by the legal team that Section 377A would not serve any legislative purpose in penalizing penetrative sex with a lighter 2-year jail sentence, when penetrative sex had already been covered under Section 377, with its heavier sentence of up to 10 years’ jail plus a fine.
Moreover, the lawyers asserted that Section 377A violates Article 12 of the Constitution, which guarantees equality before the law, as well as Article 14, which guarantees freedom of expression.
The High Court is set to hear two more challenges to the provision. One challenge was filed by Roy Tan, an LGBTQ rights activist. The other challenge was filed in 2018 by disc jockey Johnson Ong Ming (aka DJ Big Kid).
The next court date for the challenges is Friday, November 15th. -/TISG