In a paper he wrote and published with the Singapore Academy of Law (SAL), a former Chief Justice Chan Sek Keong argued that Section 377A of the Penal Code, the law that criminalises sex between men, should be repealed.
His reasons were that S377A is outdated, and no longer relevant in the present context, and that it discriminates specifically against males, which goes against equal treatment required in criminal law.
The paper, published on October 14, is titled, ‘EQUAL JUSTICE UNDER THE CONSTITUTION AND SECTION 377A OF THE PENAL CODE’.
As one of his arguments, Chan cites Article 12(1) of the Constitution that says ‘All persons are equal before the law and entitled to the equal protection of the law.’
However, he explains that while Section 377A criminalises acts of gross indecency between males regardless of their sexual orientation, but not similar acts committed between males and females, or between two females. He therefore argues that males are treated unequally since a male and a female who perform the same acts, or two females who perform acts of gross indecency commit no offence.
Chan also argued that Section 377A is no longer relevant to the present day context. He said that 377A was created not because society did not accept homosexuality, but because in the 1930s, “prostitution, especially male prostitution, was rife in certain areas of Singapore”. He added that then, “These activities were causing problems for social order, public morality and wholesome government”.
Chan wrote that “the purpose of (S377A) was to eliminate the mischief caused by male prostitution and its associated activities to law and order, public morality and wholesome government”, adding that, “These problems resulted in the enactment of (S377A) to deal with them. Such causal conditions ceased to exist in Singapore long before 2007”.
“The 1938 purpose became invalid in the eyes of the Government in 2007”, he explained.
Last month (September 20), a retired General Practitioner and lecturer at the National University of Singapore Dr Roy Tan filed a case last Friday (September 20) challenging the constitutionality of Section 377A of the penal code – a law which criminalises sex between men. A Mr Tan Eng Hong first challenged 377A in 2010 which was initially met with resistance from the gay community itself.
Dr Tan Seng Kee, 61, better known as Roy Tan, was the main organiser for the first Pink Dot event in 2009 advocating LGBT rights. He is represented by human rights lawyer M. Ravi from Carson Law Chambers.
Prime Minister Lee Hsien Loong said that Singapore is open to the LGBT community even though Section 377A, the law that criminalises sex between men, will continue to remain on Singapore’s legislation.
PM Lee said: “You know our rules in Singapore. Whatever your sexual orientation, you are welcome to come and work in Singapore.”
He added that LGBT people are living freely here with the annual Pink Dot gathering occurring over the years.
He also said: “But this has not inhibited people from living, and has not stopped Pink Dot from having a gathering every year.”
“My personal view is that if I don’t have a problem — this is an uneasy compromise — I’m prepared to live with it until social attitudes change”, PM Lee said.
Mr Chan’s full paper can be found here. /TISG
Read related: Retired doctor championing gay rights legally challenges Section 377A