Court of Appeal declares Section 377A "unenforceable" - partial victory for LGBT community

[groyn88]

http://sporelgbtpedia.shoutwiki.com/wiki/Section_377A_of_the_Singapore_Penal_Code#Ivan_Tan_comes_out

Ivan Tan comes out

In December 2014, Ivan Tan gave an exclusive interview published in Vol. 4 (2014) of Queer Asian Spirit E-Zine in which he revealed that he was the "Tan Eng Hong" that had started the 377A Constitutional challenge with human rights lawyer M Ravi in 2010. Tan consented for the first time to having his photograph, which appeared at the bottom of the article, published in connection with the case. He had hitherto chosen to remain faceless to the public in the ongoing saga and had preferred to use his less well known Chinese name instead of the name by which most people knew him.

In the article, Tan talked about his spirituality which gave him to courage to launch the Constitutional challenge at great cost to his personal and professional life and to his family.

http://www.queerasianspirit.org/42.html

The Accidental Activist: Ivan Tan takes on Singapore’s Anti-Gay Law
Ivan Tan Eng Hong and Lee Anthony Shaw (Singapore)

Lee Anthony Shaw interviews Ivan Tan on the worst day of Ivan’s life. But where it leads may surprise the reader, as it affirmed for Ivan that God was always with him, and that the Universe can use our lives for powerful purposes, if we allow it to.

Arrested

On March 9th 2010, Ivan was arrested after he had been caught by police in an intimate act in a public place, a public restroom stall to be exact. As in most countries, this is an offence in Singapore, under section 294 of the Penal Code, which prohibits any obscene act in a public place.

Only Ivan wasn’t arrested under section 294 of the Penal Code. He was arrested for being gay and charged under section 377A.


The Anti-Gay Law

Section 377A of the Singapore Penal Code is a law that prohibits “any act of gross indecency” between men. What constitutes such an act is not defined. It could be hand-holding or kissing. The law prohibits these acts whether they are done in public or private.

The law is so bad, that all three Prime Ministers who have served since Singapore’s independence have spoken against the anti-gay rhetoric that sustains it. The father of Singapore, former PM Lee Kwan Yew, stated in Hard Truths to Keep Singapore Going, “Homosexuality will eventually be accepted... It’s a matter of time before it’s accepted here.” His son, PM Lee Hsing Loong declared in 2007, that while his Parliament had determined that statute 377A would stay on the books, it “need not and will not be proactively enforced.”

Ivan’s arrest was proof that 377A was being enforced and that intimacy between men was still criminalized in Singapore. The Prime Minister’s declaration was not binding, meaning that it did not stop the police from enforcing the laws as they were written.

“The day of the arrest was the lowest point of my life. I was very afraid. I was handcuffed and spent the night in jail,” Ivan recalls. In his professional work as a massage artist, actor and performance artist, Ivan sometimes wears a pair of angel wings. “In one day, I went from angel wings to handcuffs! It was a dark stain on my life.  It was a dark, dark day.

“I started to pray right away, in jail, ‘Show me where You want to lead me, God, with this situation, through my own weaknesses and the temptations of my flesh. Where do You want to lead me?’” Ivan recalls.

Challenging the Law

“When I first got caught, I only knew I had committed a crime. I wasn’t thinking about my rights. I didn’t know about the laws relating to my case.”

Ivan came to be represented by an old friend, Mr M. Ravi, Singapore’s leading human rights lawyer.

“I had met Ravi many years ago. I do not even remember how I reached out to him after my arrest. I think God had a hand in this. That was the first sign that there was something greater at hand. Ravi was like an angel. He is a friend who helps to hold up my wings and I hope I help to hold up his.”

With his lawyer, Ivan made the decision to challenge the Constitutionality of his arrest under section 377A in Singapore’s High Court. First, there was the question as to why men who had intimate relations with other men were singled out and their acts criminalized, when Parliament had decriminalized acts once deemed “against the order of nature” related to all other groups of consenting adults, including women being intimate with other women, and persons engaged in heterosexual sodomy.

Next, there was the question as to whether a statute such as section 377A could even be considered to be “law” in the context of a Constitution that was supposed to protect people from arbitrary arrest and imprisonment.

The Government-Run Media

“When I first challenged section 377A, I knew it would be important. I didn’t know how big, how public, how far it would go,” Ivan remembers.

Ivan’s decision to challenge 377A, when he could have merely paid a fine and walked away, had a great personal cost. It seemed that every time Singapore’s state-controlled media covered Ivan’s case, reporters were sure to mention “oral sex in a public toilet” along with his given name. There seemed to be little effort made by these dominant media sources to explain the real questions before the Court, and the broadcast reporting has been conducted in such a way that listeners or viewers easily arrive at the conclusion that Ivan was trying to legalize sex acts in public toilets rather than his real challenge, that gay men be treated equally under the law to all other groups.

Ivan’s family has not been spared the attention either, and though they are largely supportive of him, the notoriety has been a strain on their family bonds and individual lives at times.

The Power of Forgiveness

During these difficult years, Ivan adopted a mantra influenced by the work of Hawaiian therapist, Dr Ihaleakala Hew Len, who practices a healing process called ho ‘oponopono. After reading Dr Len’s work, focused on love, forgiveness and healing, in the book “Zero Limits“ by Dr Len and Dr Joe Vitale,[1] Ivan began regularly reciting the following healing words: “Please forgive me. I’m sorry. I love you and I thank you.”

Ivan found that he had to forgive himself and sincerely ask forgiveness from others in order to move forward and sustain his public interest case. In his own words, “I had to release myself from feelings of guilt and shame, in order to put the pieces of my life back together after my arrest.”

“Self-forgiveness is very powerful—to be able to forgive others and forgive yourself. If you really forgive, you cleanse your mind; it becomes a blank slate. This is one of the most essential parts of the healing process of mankind,” Ivan believes.

Relying on Faith

Ivan has long been “out” as a gay man and he is a Christian as well, attending services at the LGBTIPAQ-friendly Free Community Church on Sundays. His faith journey began during his childhood, when he wondered into Herald Assembly of God Church, in his Chinatown neighbourhood. There, Ivan was welcomed into the congregation by a family named Chan, who taught Sunday school classes. The Chans were warm and generous people.

“The Chan family had a huge impact on my life. The bible stories they taught me—of Jonah and the Whale, the Prodigal Son—these were an enormous influence on me in creating a desire to be a good person and an example of what qualities make a kind person. The Chans also showed me a great deal of love. They cooked rice and shared it with me; they brought me to their house. They treated me like a little brother.”

A Catholic Upbringing

Ivan faced a great internal conflict when he realized as a teenager that he was definitely attracted to men and not women. He had been brought up in Catholic schools with no sex education program and no theological acceptance of gays.

“I was very tormented about how I would fit in with the church’s beliefs if I was gay. When I was in secondary school, I read about the Singapore Carmelite Monastery in the newspaper,” Ivan recalls. The Carmelite nuns live a cloistered existence and dedicate themselves to a life of prayer and contemplation. “They stay inside all day and only pray. I had the idea that I should be a nun. I knew that I could not be a priest, because I liked men. But if I were a [cloistered] nun, then I would pray all day and wouldn’t have the option of liking men.

“I went to the Carmelite monastery and talked to a nun there about my problem. She was the only nun who was allowed to speak to the public. The other nuns were hidden away. She was not able to give me any advice that I recall, but I think she just tried to be comforting and encourage me to look to God.

“I returned to the church late one night and I told God my problems. I left a rose at the doorstep. The rose symbolized love and an agreement. I meant that my issue was between God and me. It was about accepting my own journey searching for the supreme while living in a way that is down to Earth. I could continue to live my life without knowing all the answers. Since then, I have always felt connected to God and know that I could take all my problems to God.”

Staying committed to his faith and the truth of his sexual identity often seemed an impossible task over the years for Ivan, “Being a Christian was so difficult. In church, we [gay people] were told we were sinful, and that we had no faith.”

In the 1990’s, Singapore’s Church of our Saviour launched a program called “Choices Ministry,” which has the goal of restoring LGBTIPAQ persons to what the church asserted was their “God-intended sexual identity”—heterosexuality. The program was modelled after the now-defunct Exodus International gay conversion ministry in the U.S.

As a younger person, Ivan joined up for the conversion program. After two painful years of following the Choices practices to the best of his ability, there was zero change in Ivan’s sexual orientation. If he learned anything from that experience, it was that his sexual identity as a gay man was a fundamental part of his unique journey in life.

“If you are gay, that is your truth. Being out can help people to understand you. You don’t have to question what you are. If you lie about who you are, you will be tired from all the doors you will have to unlock to find your truth.”

The Long Battle of Constitutional Challenge

Ivan’s Constitutional Challenge waged on in the Singapore Courts for four years. Nothing came easy or happened as expected. In total, Ivan’s lawyer appeared before the nation’s highest court three times. Two years into the case, Ivan’s team scored a huge victory when the Court of Appeal made a decision that Ivan had standing, or an argument to make that could be heard by the Court.

There were setbacks as well on the way to Singapore’s highest court. After the victory of the standing decision in Ivan’s case, a gay couple, Gary Lim and Kenneth Chee, filed a challenge in the High Court against 377A as well. They had determined that they, too, had standing before the Court as a result of the decision that Ivan had received.

Gary and Kenneth’s case was scheduled ahead of Ivan’s in the Court calendar. After all the sacrifice— Ivan’s loss of privacy and his lawyer’s hundreds of hours of pro bono work—it seemed certain at that point that Ivan’s case might be held back or set-aside while the new petitioners proceeded to the Court of Appeal ahead of him.

Ivan and Ravi knew that it was critical that his case continue and that the Court hear arguments against section 377A from a party who had standing and who had actually been arrested under the statute. Ravi went to the Supreme Court again to argue that the two party’s hearings should be joined and heard together and thankfully, the justices agreed.

Acceptance and Prayer

The legal matters of Ivan’s case were complex and there were so many aspects of the legal proceedings that he had no control over. Each time a matter went to the judge’s chambers, Ivan worried. He felt that he himself was being judged, because the case was so personal to him and personal in nature. He also held a serious concern that he could face enormous Court costs against him if his case failed and if the Court did not make a decision against such costs. On the morning that his case went before the High Court judge in a closed hearing, Ivan found his way back to the Carmelite Monastery to say another prayer.

“I felt like my dignity, rights and my soul were in this fight,” Ivan remembers. “I went to the church and knelt down to make a prayer with my best intentions, then I opened my hands and blew my prayer out into the universe. I believe that the energy that we put into things matters; it has influence. On that day, it was the only influence I could have on the outcome of my case.”

No Man is An Island

“I had no idea on the day that I committed that offence, that something good could from it, that could lead to a more humane world that I want to live in. I never, ever imagined that people would be speaking about my case in the halls of Parliament, or that such a big issue would go before the Supreme Court,” Ivan recalls in wonderment. “It is very humbling. For me, what was a sad, scary day, a serious low point in my life, gave rise to a something that is so much bigger than me.”

Ivan was not alone in his challenge of section 377A. There were lawyers, journalists, members of the LGBTIPAQ community and their family members who came forward to assist in Ivan’s case through research, writing or support services.

Ivan took inspiration from movements of growing advocacy for gay rights around the world, from United Nations Secretary General Ban Ki Moon’s leadership of a global campaign for LGBT rights to Pope Francis calling for greater inclusiveness of gay Catholics.

“I have so many people to thank, even people who I will never meet! Across the world, there is an energy towards tolerance and acceptance surfacing like huge tsunami wave.”

At the Apex Court

On the 14th and 15th of July 2014, lawyers from both parties argued their clients’ cases before the Court. Gary’s and Kenneth’s team focused on the issue of inequality in discriminating exclusively against men involved intimately with other men. Ravi dealt with the right to life and liberty, and that section 377A was contrary to the fundamental laws of natural justice—a universal concept of the rights we are all afforded—and therefore could not be considered lawful.

“It is worth paying the price, even if the judgement is against me,” Ivan recognized, prior to the release of the Court’s decision. “I feel I have come before God in the lowest moment in my life to have him shine the light for me. I allowed myself to take the first step and trust the universe. I think this is one of the greatest steps I have ever encountered in my life. I am answerable only to God, as Mother Teresa said. God is the only one who sees my 24 hours exactly, and knows what has happened in my life. Even the judge will have to answer to God. It doesn’t matter whether I am right or wrong, God sees my struggles, pain, hurt. He sees everything that I feel about life, my high points and low points.”

Judgement

On the 29th of October 2014, the Court released its written judgement in the case. In a 107-page decision, the Court determined that section 377A had not infringed the fundamental liberties of Ivan, Kenneth or Gary. They found that the element of discrimination in the law was justified. In their eyes, the Parliament sought to discourage intimacy between males and that is why the law selects to penalize only males for “acts against the order of nature”.

When it came to the question of whether it is Constitutional to maintain a law with such an aim, the Court refused to reach a decision. The judgement stated that the Court could not consider facts that went beyond very narrowly defined “legal issues.” The justices went so far as to state that certain grounds of discrimination are not explicitly prohibited by the Constitution, and these include gender and sexual orientation.

The office of the UN High Commissioner for Human Rights immediately expressed their disappointment in the Court’s failure to overturn section 377A, which they have determined to be in violation of “a host of human rights guaranteed by international law, including the right to privacy, the right to freedom from discrimination and the right to freedom from arbitrary arrest and detention including protection for sexual orientation and gender equality.”[2]

Spiritual Lessons

After reflecting on what has been a devastating decision, not only for the LGBTIPAQ community, but also for human rights generally in Singapore, Ivan takes some comfort in the fact that taking this case to its conclusion has really pushed the public discourse on gay rights in Singapore.

He is disappointed in the judgement, but Ivan practices some of the spiritual lessons he has learned along the way to avoid harbouring any resentments.

“I choose to forgive and free the judiciary [from my mind] who passed this judgement on me. I choose to forgive them in my heart and thank the universe for the lessons that they have given to my life. Because I want to be free.”

The Road Ahead

These days Ivan is feeling a sense of relief to know that this part of his life, defined by a closely watched court proceeding, has come to a close. He feels liberated and seems much more at ease.

“The darkest secret of my life has been broadcast to the world, so I have nothing more to hide from. I don’t think there is anything else that people would be curious about in my life,” Ivan laughs. “So I am set free. I can breathe. I am looking forward to the next chapter of my life.”

“I would like to travel since the case is behind me, and to volunteer. I’ve got a pair of hands to serve, I want to keep on learning, and to keep on bringing healing words into my life and other people’s lives.”

From a prayer in jail to a crusade for LGBTIPAQ rights, Ivan’s journey has already taken him beyond his expectations and to the present, where he is grateful for his experience and optimistic about the future.
 
References

[1] Joe Vitale and Ihaleakala Hew Len, Zero Limits: The Secret Hawaiian System for Wealth, Health, Peace, and More (Hoboken, NJ: John Wiley & Sons), 2007.
[2] “Press Briefing Notes on Singapore and Tunisia,” Rupert Colville, Spokesperson for the UN High Commissioner for Human Rights, Geneva, 31 October 2014. http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15242&LangID=E#sthash.bYSQphsC.dpuf

PicturePhoto credit: Ivan Tan

Ivan Tan is a multi-talented Singaporean, who works as a massage therapist, actor, talent agent and performance artist. Through his company JES Penguin, Ivan works as a professional MC and entertainer for parties. He also recruits actors, musicians, models, voice-over artists and translators as a talent agent and service agent for professional translation. Ivan speaks three languages and has years of experience as a Free Individual Traveller tour guide. In his free time, Ivan volunteers his skills as a massage therapist to underserved groups.

Edited December 16, 2014 by groyn88

[groyn88]

Yesterday's forum, organised by MARUAH (working group for an ASEAN human rights organisation, Singapore), was entitled, "Section 377A: What does it really constitute?"
It was advertised as follows:
"The Court of Appeal has ruled that Section 377A is constitutional.
What does this mean for the state of our civil liberties?
Can we retain 377A, along with principles of equality and justice?
Should gender and sexual orientation be included in our right to protection against discrimination?
Come hear lawyers and academics speak on this matter.
Date: 1st February 2015
Time: 2:30pm – 5:30pm
Venue: 21 Tan Quee Lan Street, #02-08, Heritage Place, Singapore 188108."
This is a video recording of human rights lawyer, M Ravi's speech:

Edited February 2, 2015 by groyn88

[groyn88]

Champion of LGBT equality, human rights lawyer M Ravi has just announced his intention to contest Lee Hsien Loong in Ang Mo Kio GRC in the upcoming General Elections:

http://www.channelnewsasia.com/news/singapore/m-ravi-to-contest-next-ge/1633168.html

Please support him because once he is in parliament, he will raise the issue of repealing Section 377A again because our judiciary has abdicated the responsibility of deciding whether gay sex is immoral or not (and thus whether the law should stand) to the legislature.

[Guest Guest]

He should choose a weaker GRC or single ward to challenge the PAP. You must understand the majority out there is still homophobic and klaus kiasi who rather vote for LHL than risk losing everything. That's my two cents worth of opinion.

[groyn88]

Press release from M Ravi' office:

Dear Members of the Media,

The Law Soc has indiscriminately cancelled M Ravi as a speaker for the upcoming Administrative and Constitutional Law Conference. He had been scheduled to speak at both the Morning and Afternoon Sessions on 27 February 2015.

Attached please find the programme for the conference as well as a letter that Mr Ravi has written in response to the Law Society's oppressive and derogatory treatment to its fellow member who is supposed to be treated with care and concern as he is allegedly in relapse of his illness (which Ravi's doctor has never certified him unfit for practice to date). Mr Michael Hwang SC who had been in charge of the Conference, and who had met Mr Ravi at Marina Bay Financial Centre together with Professor Jack Lee, Professor Kevin Tan and former NMP Mr Eugene Tan, was most impressed by his knowledge of Public Law.

Mr Ravi is bemused if not surprised that the President of the Law Society, Thio Shen Yi, head of the Council of the Law Society) had arrogated himself the knowledge of psychiatric medicine in suspending Mr Ravi from practice. Mr Ravi earnestly feels Mr Thio Shen Yi needs to go for psychiatric treatment and also it will be helpful if he could ask his sister, the infamous Ms Thio Li-Ann (supposedly leading authority on Constitutional Law and who is doggedly opposed to the decriminalization of homosexuality and internationally disgraced for her bigotry on human rights versus Charismatic Christianity). Mr M Ravi seriously hopes Mr Thio Shen Yi does not end up being disgraced by the members of the Bar by way of an EOGM, a similar situation which his mother Prof Thio Su Mein faced during the AWARE saga and it would seem that the Thio family has not carefully examined its own antecedents.

Thio Shen Yi needs a serious examination of his own head before he goes head to head on this matter with Mr Ravi. Mr Ravi will commence his slew of legal action against the Council members in the coming days and will be suing them jointly and severally.

He understands that the conference has been fully subscribed, at a fee of $267.00 per lawyer which can only be due to the fraternity's utmost and dear respect for his one-man struggle for civil liberties and knowledge of Constitutional Law where this is the first time he is being invited to speak by the Law Society amongst the august panel. For the record, Mr Ravi had been on speaking engagement at Harvard University, European Parliament and various international conferences except the Law Society given its lack of respect for its own Rule of Law mission statement, in Singapore as attendance at similar conferences has always been sorely lacking.

It is also disheartening and sad that he has to inform the sole proprietors of law firms at People's Park Centre personally as he believes that the Law Society will be too busy collecting monies for the conference and will not inform the attendees personally.

[Guest Roy Tan]

Today's Court of Appeal ruling on Tan Seng Kee vs. AG is a significant victory for the LGBT community. Section 377A has been declared "unenforceable". This will have numerous legal and social ramifications that will play out in the months and years to come. The AG will no longer have prosecutorial discretion regarding Section 377A, nor will the police have the option whether or not to charge those infringing it. The judgment also exerts pressure on Parliament to debate the issue and decide whether or not to repeal 377A entirely - a law that is unenforceable cannot be on the statute books.
https://www.youtube.com/watch?v=_KThAdaXUgY

[yogateacher]

🥳🥳🥳

[Guest Huh ?]

On 2/28/2022 at 3:08 PM, Guest Roy Tan said:

Today's Court of Appeal ruling on Tan Seng Kee vs. AG is a significant victory for the LGBT community. Section 377A has been declared "unenforceable". This will have numerous legal and social ramifications that will play out in the months and years to come. The AG will no longer have prosecutorial discretion regarding Section 377A, nor will the police have the option whether or not to charge those infringing it. The judgment also exerts pressure on Parliament to debate the issue and decide whether or not to repeal 377A entirely - a law that is unenforceable cannot be on the statute books.
https://www.youtube.com/watch?v=_KThAdaXUgY

 

Huh, this news is so yesterday.. The victory had long been celebrated ages ago. In fact, i dun recall any prosecution of gay sex for the past 20 years.  Gosh, you have my sympathies for having gay sex in fear prior to this court ruling .. I have been having so much fun all this while.. 😁

 

 

 

[Guest KNN]

On 2/28/2022 at 5:04 PM, Guest Huh ? said:

 

Huh, this news is so yesterday.. The victory had long been celebrated ages ago. In fact, i dun recall any prosecution of gay sex for the past 20 years.  Gosh, you have my sympathies for having gay sex in fear prior to this court ruling .. I have been having so much fun all this while.. 😁

 

When will the next repealing of S377A take place?  This is too draggy for everyone, include the judge who finally felt it has no enforceable value. 

[singalion]

Looks a bit bizarre to me if Courts are tasked to verify the constitutionality of certain laws and then refrain from answering the question.

 

This is one of the flaws resulting of the English originated Common Law as there is no separate institution to look into constitutional questions.

In continental European constitutions the question on constitutionality is answered by separate Constitutional Courts as these countries also separate the constitutional law (public law) from civil legal matters.

 

The appeals are instead about whether Section 377A is inconsistent with the Constitution, but even this is a "deceptively easy answer" that "belies the underlying complexity of the issues that are before us", said the Chief Justice.

The Court of Appeal held that the entirety of Section 377A is "unenforceable" unless and until the Attorney-General of the day provides clear notice that he, in his capacity as the public prosecutor, intends to reassert his right to enforce the law by way of prosecution and will no longer abide by representations made by the then-AG in 2018 as to the prosecutorial policy that applies to certain conduct.

Chief Justice Menon said it is therefore "unnecessary" for the Court of Appeal to address the constitutional questions raised by the appellants.

"They do not face any real and credible threat of prosecution under Section 377A at this time and therefore do not have standing to pursue their constitutional challenges to that provision," said the Chief Justice.

 

 

Isn't the above actually avoiding to answer the question by using a technicality ?

 

If Section 377A is unenforceable, then isn't it devoid of any reason and should be immediately abolished?

 

Why is it still in the Penal code?

 

[Guest Pretend to work]

On 2/28/2022 at 8:22 PM, singalion said:

Looks a bit bizarre to me if Courts are tasked to verify the constitutionality of certain laws and then refrain from answering the question.

 

This is one of the flaws resulting of the English originated Common Law as there is no separate institution to look into constitutional questions.

In continental European constitutions the question on constitutionality is answered by separate Constitutional Courts as these countries also separate the constitutional law (public law) from civil legal matters.

 

The appeals are instead about whether Section 377A is inconsistent with the Constitution, but even this is a "deceptively easy answer" that "belies the underlying complexity of the issues that are before us", said the Chief Justice.

The Court of Appeal held that the entirety of Section 377A is "unenforceable" unless and until the Attorney-General of the day provides clear notice that he, in his capacity as the public prosecutor, intends to reassert his right to enforce the law by way of prosecution and will no longer abide by representations made by the then-AG in 2018 as to the prosecutorial policy that applies to certain conduct.

Chief Justice Menon said it is therefore "unnecessary" for the Court of Appeal to address the constitutional questions raised by the appellants.

"They do not face any real and credible threat of prosecution under Section 377A at this time and therefore do not have standing to pursue their constitutional challenges to that provision," said the Chief Justice.

 

 

Isn't the above actually avoiding to answer the question by using a technicality ?

 

If Section 377A is unenforceable, then isn't it devoid of any reason and should be immediately abolished?

 

Why is it still in the Penal code?

 

"It's not we don't care at least we bothered to come up with a million worded sophistry essay to shirk our judicial responsibilities"

 

I guess that is the judges' internal OS

[Guest Citizen]

See la, the courts are playing badminton with parliament AGAIN.

 

ARE YOU EXPECTING ANYTHING NEW FROM THEM????

[singalion]

On 2/28/2022 at 8:58 PM, Guest Pretend to work said:

"It's not we don't care at least we bothered to come up with a million worded sophistry essay to shirk our judicial responsibilities"

 

I guess that is the judges' internal OS

 

I could have written more, there was also once a grandson of a founding father, who...

but I heard of things such as "contempt of court" etc.

Therefore, I will refrain from making any further comments.

 

[Guest Sad Court]

On 3/1/2022 at 1:22 AM, singalion said:

 

I could have written more, there was also once a grandson of a founding father, who...

but I heard of things such as "contempt of court" etc.

Therefore, I will refrain from making any further comments.

 

The courts themselves are making it extremely challenging for anyone to have anything other than a supremely low regard of them with their latest decision.

[GachiMuchi]

Court of Appeal dismisses challenges to Section 377A, law criminalising sex between men to stay

The men mounting challenges to Section 377A, and their lawyers. (Photos: Facebook/Remy Choo Zheng Xi, Ching S. Sia, Facebook/Roy Tan)

Lydia Lam  28 Feb 2022 10:14AM(Updated: 28 Feb 2022 05:44PM)

SINGAPORE: The Court of Appeal on Monday (Feb 28) upheld a lower court's decision to dismiss three challenges to Section 377A of the Penal Code, which criminalises sex between men.

The challenges were mounted by: Disc jockey Johnson Ong Ming, retired general practitioner Roy Tan Seng Kee and Bryan Choong Chee Hoong, the former executive director of LGBT non-profit organisation Oogachaga.

High Court judge See Kee Oon had dismissed their challenges in March 2020, and the three men turned to the Apex Court to appeal against the decision.

According to Section 377A of the Penal Code, any man who commits any act of gross indecency with another man in public or in private can be jailed for up to two years. This extends to any man who abets such an act, procures or attempts to procure such an act.

In a 152-page written judgment delivered by Chief Justice Sundaresh Menon on behalf of a five-judge panel, the Court of Appeal stressed that the appeals are "not about whether Section 377A should be retained or repealed", as this was "a matter beyond our remit".

"Nor are they about the moral worth of homosexual individuals," said the Chief Justice. He quoted Prime Minister Lee Hsien Loong's words that homosexual individuals are "part of our society" and "our kith and kin". 

The appeals are also "not about the fundamental nature of sexual orientation (whether immutable or not)", this being an "extra-legal question well beyond the purview of the courts", he said.

The appeals are instead about whether Section 377A is inconsistent with the Constitution, but even this is a "deceptively easy answer" that "belies the underlying complexity of the issues that are before us", said the Chief Justice.

The Court of Appeal held that the entirety of Section 377A is "unenforceable" unless and until the Attorney-General of the day provides clear notice that he, in his capacity as the public prosecutor, intends to reassert his right to enforce the law by way of prosecution and will no longer abide by representations made by the then-AG in 2018 as to the prosecutorial policy that applies to certain conduct.

Chief Justice Menon said it is therefore "unnecessary" for the Court of Appeal to address the constitutional questions raised by the appellants.

"They do not face any real and credible threat of prosecution under Section 377A at this time and therefore do not have standing to pursue their constitutional challenges to that provision," said the Chief Justice.

A SUMMARY OF THE POLITICAL REALITY SURROUNDING 377A

The judgment released on Monday laid out a summary of the "political reality" surrounding Section 377A in three main points.

"First, although Section 377A was retained in our statute books, this was on the terms that it would not be proactively enforced," said the Chief Justice.

"The Government's evident unwillingness to repeal Section 377A signals its assessment that society has yet to adequately integrate the opposing views of mainstream conservatives and the homosexual community, as well as its awareness that our multi-racial, multi-lingual and multi-religious community remains vulnerable along such fault lines. The Government was especially cognisant that forcing the issue would polarise those who are 'presently willing to live and let live'."

Second, the retention of Section 377A in 2007 "was directed at addressing a deeply divisive socio-political issue in a pragmatic way", the court said.

The decision not to repeal Section 377A then "was a legislative one that was informed not by the purpose behind the enactment of the provision some seven decades earlier, but by the Government's objective of striking an optimal compromise between competing interests in our society and accommodating differing perspectives on homosexuality", said Chief Justice Menon.

Third, the purpose of the "political compromise" on Section 377A that was reached in 2007 was to "strike a careful balance between the opposing interests of various groups".

"The retention of Section 377A served to accommodate the views of the more conservative segments of society, while the caveat that Section 377A would not be proactively enforced served to accommodate the interests of homosexual individuals and to allow them to live their lives in as full a space as is presently possible," said the Chief Justice.

Other points that the Court of Appeal made in its judgment include the following: 

First, the right to express one's sexual identity, even in private, is not an express constitutional right. 

Second, Section 377A is not an "absurd" law, and "many reasonable people do in fact see Section 377A as being morally justified", as evident from parliamentary debates.

"Numerous parliamentarians spoke up in favour of retaining Section 377A, often on the ground of safeguarding societal morality and with the recognition that a sizable segment of our society regards homosexual behaviour as unacceptable," said Chief Justice Menon.

The Apex Court agreed with High Court judge See Kee Oon that Section 377A does not violate Article 9(1) of the Constitution of Singapore, which states that no person shall be deprived of his life or personal liberty save in accordance with the law.

BACKGROUND OF THE THREE MEN'S APPEALS

While all previous challenges against Section 377A had similarly failed, the trio's court actions came after former Chief Justice Chan Sek Keong called for a review of Section 377A, with two former attorneys-general also making public comments on the law.

Mr Ong was represented by Eugene Thuraisingam, Suang Wijaya, Johannes Hadi and Joel Wong, while Mr Tan was represented by lawyer M Ravi.

Mr Choong was represented by Senior Counsel Harpreet Singh Nehal, Jordan Tan, Victor Leong, Remy Choo Zheng Xi, Priscilla Chia and Wong Thai Yong.

Among the arguments were submissions based on new historical material including recently declassified documents demonstrating that the introduction of Section 377A in 1938 was to criminalise "rampant male prostitution" when Singapore was under British colonial rule.

Other arguments were based on expert scientific evidence on the nature of sexual orientation, arguing that homosexuals cannot willfully change their orientation and that Section 377A is discriminatory and violates the Constitution.

State Counsels representing the Attorney-General's Chambers had previously argued that Section 377A sends "a certain moral signal" by its mere existence and advances a legitimate and reasonable state interest, reflecting an aspect of societal morality, "regardless of whether and how it is enforced".

They said Section 377A is constitutional and called the issue "a deeply divisive socio-political" one that should be decided by the legislature or Parliament instead of the judiciary.

AGC's lawyers reiterated the Government's position that the police will not take proactive action to enforce Section 377A.

In a statement after the judgment was released, Pink Dot SG said it was "profoundly disappointed" by the court’s decision.

"The acknowledgement that Section 377A is unenforceable only in the prosecutorial sense is cold comfort. Section 377A’s real impact lies in how it perpetuates discrimination across every aspect of life - at home, in schools, in the workplace, in our media, and even access to vital services like healthcare," it said.

One of the appellants, Mr Ong, said he is "disappointed with the outcome", but said the ruling "does not mean the end of the community's pursuit for equality".

"Although the non-enforcement of Section 377A offers a small step towards the LGBTQ+ community’s freedom from discrimination and oppression, it will take more time before the LGBTQ+ community finds full recognition and acceptance by policymakers and society," he said.

Source: CNA/ll(ta)

Edited February 28, 2022 by GachiMuchi

[GachiMuchi]

 

Section 377A stays but will not be used to prosecute. So, what now?

 

• The latest challenge to Section 377A has been dismissed by the Court of Appeal.
• TheHomeGround Asia speaks to Pink Dot SG on its views on the matter and plans going forward.

 

 

Tony Goh

• 28 Feb 2022

 ● 

4 mins read

Pink Dot SG will continue advocating for the full removal of Section 377A of the Penal Code through its on-going engagement with the Government and will work with the other community groups to tackle head on the trickle-down effects of the law that criminalises sex between consenting men. 

The not-for-profit movement is reacting to Singapore’s highest court, the Court of Appeal, upholding a lower court’s decision to dismiss three challenges to Section 377A.

The challenges were mounted by disc jockey Johnson Ong Ming, retired general practitioner Roy Tan Seng Kee and former executive director of LGBT non-profit organisation Oogachaga Bryan Choong Chee Hoong.

The three appellants (from left to right): Former executive director of LGBT non-profit organisation Oogachaga Bryan Choong Chee Hoong, disc jockey Johnson Ong Ming, and retired general practitioner Roy Tan Seng Kee. (Photo source: Remy Choo Zheng Xi, Ching S. Sia, Roy Tan / Facebook)

In its response to TheHomeGround Asia, Pink Dot SG says, “This ruling will no doubt embolden discriminatory behaviour and entrench prejudicial views, and so attending to the mental health and well-being of the community is our first and foremost priority.”

In a statement to the media, Pink Dot SG calls the dismissal by the Court of Appeal  “a devastating blow to Singapore’s LGBTQ+ community”, since the court has chosen “instead to side-step the issue and leave the law intact”.

Section 377A

Section 377A is a legacy of Singapore’s colonial past, introduced into the nation’s Penal Code in 1938. The law specifically criminalises sex between consenting male adults and reads:

“Any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to 2 years.”

Around the world, Section 377A has since been repealed in the United Kingdom (where the law originated), Hong Kong, Australia and India. 

In East and South-east Asia, only Singapore, Myanmar, Malaysia, Brunei and Indonesia’s Aceh province continue to criminalise sexual activity between men.

Despite the many arguments advanced by the appellants about the harmful effects of Section 377A, the judges at the Court of Appeal “narrowly honed in on the uncertainty and untidiness of the government’s political promise of non-enforceability”, PinkDot SG says in its statement.

As such, while the ruling clarified the constitutionality of the government’s compromise, it has left the LGBTQ+ community behind yet again, without any adequate remedy or relief from the ongoing discriminatory effects of Section 377A, it adds.

In dismissing the appeal, Chief Justice Sundaresh Menon said on behalf of a five-judge panel that “although Section 377A was retained in our statute books, this was on the terms that it would not be proactively enforced”, and that the Government has assessed that “society has yet to adequately integrate the opposing views of mainstream conservatives and the homosexual community”, and that “forcing the issue would polarise those who are presently willing to live and let live”.

The court also added that retaining Section 377A in 2007 after abolishing its mother statute Section 377 was an attempt to address “a deeply divisive socio-political issue in a pragmatic way”, and as a “political compromise to strike a careful balance between the opposing interests of various groups”.

With the curtains falling on the latest challenge, the ball is now back in Parliament’s court for lawmakers to determine if and when to repeal Section 377A.

Minister for Law and Home Affairs K Shanmugam has reiterated on multiple occasions that LGBTQ+ persons would be protected, adding that “we are not any lesser by reason of our sexual preferences”.

But more recently, Finance Minister Lawrence Wong promised that the government would do its utmost to “recognise the challenges and needs of different groups”. He vowed that the government would “never let any group feel unheard, ignored or excluded.”

Profoundly disappointed, Pink Dot SG says the acknowledgement that Section 377A is unenforceable only in the prosecutorial sense “is cold comfort”. “Section 377A’s real impact lies in how it perpetuates discrimination across every aspect of life: at home, in schools, in the workplace, in our media, and even access to vital services like healthcare,” it writes.

Pink Dot SG is also deeply troubled by how it was cited by the Court as an example of how Section 377A does not “generate a chilling effect that stifles advocacy”. “Pink Dot SG and other LGBTQ+ rights advocates exist in spite of impediments like Section 377A, and we should never be used as examples to minimise their impact or justify their retention,” it says.

“Today’s ruling is frustrating for those who were hoping for some real change.” says Pink Dot SG’s spokesperson Clement Tan. “Despite acknowledging that gay men should be able to live freely in Singapore, without harassment or interference, the court still hesitated to strike it down. It now falls on Parliament to deal the final blow to Section 377A.”

Allowing 377A to remain on our books is incompatible with these promises, and our nation’s purported values of justice and equality. It is time for our leaders to go beyond maintaining uneasy compromises and take affirmative steps towards equality, he adds.

The constitutionality of Section 377A has been challenged multiple times in 2010, 2012 and 2018 and all of them have failed.

But that did not stop the three men from trying again after the High Court dismissed their appeal four years ago.

They argued that when the law was introduced, the intention was to combat rampant male prostitution in the 1930s and it has since lost its relevance in Singapore today. Another argument is based on expert scientific evidence on sexual orientation that homosexuals cannot wilfully change their orientation and as such, Section 377A is discriminatory and violates the Constitution.

Netizens React 

When news of the dismissal broke out on Monday (28 February) morning, there were mixed reactions from netizens who were largely been one of disappointment, although there were also voices of support for the retention of the law.

On Pink Dot SG’s Instagram page, ching.ss commented, “It’s 2022 and the archaic law and its trickle down effects are still around. Absolutely gutted.” 

Another, eve_teo, posted “(the decision) was upsetting, backwards, and discriminating”.

pingu_know_da_wae, added that “It’s always like this huh. LGBTQ+ people contribute to and love a country that will never love them back. I’m not even angry anymore, just disappointed”.

But Dawn Ge felt it is a “wise decision to retain S377A. Thank you”. 

Comments on Pink Dot SG’s Instagram post. (Photo source: Pink Dot SG / Instagram)

Pink Dot SG tells TheHomeGround Asia, “The burden of fighting discrimination shouldn’t fall solely on the discriminated. We encourage the majority to play a more active role in speaking up for the LGBTQ+ community and call out discriminatory practices and bigoted speech when they see it. We encourage them to reach out to their LGBTQ+ friends and family today to show their support and solidarity,” it says.

Pink Dot will continue to advocate for a more inclusive Singapore through its annual event and will return on 25 June to make a stand against discrimination.

A virtual light up with each dot representing an individual who signed in and left a word of encouragement for the LGBTQ+ community. (Photo source: Pink Dot SG)

 

Edited February 28, 2022 by GachiMuchi

[Cube3]

🙄 The concept of "might is right", if applied to social relations, would make Singapore a dangerous place for small communities like the LGBTQ+.

 

- Paraphrase of PM's statement:

The concept of "might is right", if applied to international relations, would make the world a dangerous place for small countries like Singapore.

[Guest Guest]

 

 

On 2/28/2022 at 5:04 PM, Guest Huh ? said:

 

Huh, this news is so yesterday.. The victory had long been celebrated ages ago. In fact, i dun recall any prosecution of gay sex for the past 20 years.  Gosh, you have my sympathies for having gay sex in fear prior to this court ruling .. I have been having so much fun all this while.. 😁

 

 

 

 

 

https://the-singapore-lgbt-encyclopaedia.fandom.com/wiki/Archive_of_"A_heftier_list_of_s.377A_cases",_Mohan_Gopalan,_May_2007

No. of persons convicted under Section 377A

1997	1998	1999	2000	2001	2002	2003	2004	2005	2006
25	16	31	30	23	25	11	13	4	7

 

[mith]

On 2/28/2022 at 8:22 PM, singalion said:

Looks a bit bizarre to me if Courts are tasked to verify the constitutionality of certain laws and then refrain from answering the question.

 

This is one of the flaws resulting of the English originated Common Law as there is no separate institution to look into constitutional questions.

In continental European constitutions the question on constitutionality is answered by separate Constitutional Courts as these countries also separate the constitutional law (public law) from civil legal matters.

 

The appeals are instead about whether Section 377A is inconsistent with the Constitution, but even this is a "deceptively easy answer" that "belies the underlying complexity of the issues that are before us", said the Chief Justice.

The Court of Appeal held that the entirety of Section 377A is "unenforceable" unless and until the Attorney-General of the day provides clear notice that he, in his capacity as the public prosecutor, intends to reassert his right to enforce the law by way of prosecution and will no longer abide by representations made by the then-AG in 2018 as to the prosecutorial policy that applies to certain conduct.

Chief Justice Menon said it is therefore "unnecessary" for the Court of Appeal to address the constitutional questions raised by the appellants.

"They do not face any real and credible threat of prosecution under Section 377A at this time and therefore do not have standing to pursue their constitutional challenges to that provision," said the Chief Justice.

 

 

Isn't the above actually avoiding to answer the question by using a technicality ?

 

If Section 377A is unenforceable, then isn't it devoid of any reason and should be immediately abolished?

 

Why is it still in the Penal code?

 

exactly!

 

if it is still in the book, they can always prosecute! not now maybe, but in future when the AG has a new captain!

 

and its so silly, why keep the 377A in the book and make it NOT ENFORCABLE. no sense.

[kenzisstic]

Expected leh… 

 

we are indeed a developing country! 

[Guest Handphone Buldge]

Is that sooooo surprising?

[Guest Public Opinion]

On 3/1/2022 at 2:10 AM, Guest Sad Court said:

The courts themselves are making it extremely challenging for anyone to have anything other than a supremely low regard of them with their latest decision.

It was like an elderly woman trying to get pregnant, with the white elephants, only to be seen miscarriaging. 

[Guest Belinda Ang]

On 3/1/2022 at 8:56 AM, mith said:

exactly!

 

if it is still in the book, they can always prosecute! not now maybe, but in future when the AG has a new captain!

 

and its so silly, why keep the 377A in the book and make it NOT ENFORCABLE. no sense.

Simple. They are keeping for as and when they feel like using it. For posterity's sake! They want to pass the law down the future generations like a piece of family heirloom, in case people forget about its purpose and significance.

 

If there is hell, these judges are sure as hell going there for all their lies and hypocrisies!

 

[mith]

On 3/1/2022 at 9:30 AM, Guest Belinda Ang said:

Simple. They are keeping for as and when they feel like using it. For posterity's sake! They want to pass the law down the future generations like a piece of family heirloom, in case people forget about its purpose and significance.

 

If there is hell, these judges are sure as hell going there for all their lies and hypocrisies!

 

exactly!

[singalion]

 

Is there a new approach or something moving???

 

 

Government 'considering best way forward' on Section 377A while respecting different viewpoints: Shanmugam

 

 

Published March 3, 2022

 

Home Affairs Minister K Shanmugam noted that attitudes towards homosexuality have changed since 2007 when Section 377A was last debated in Parliament.

• Addressing the recent apex court judgement on Section 377A, Home Affairs and Law Minister K Shanmugam said the Government is considering the best way forward
• Any move will be done in a way that continues to balance different viewpoints, and avoid causing a sudden, destabilising change in social norms or public expectations
• He noted that social attitudes on homosexuality has changed since Parliament last debated the issue in 2007; and policies, legislation have to evolve in tandem 
• The appellate court's judgement aligns with the approach to Section 377A that the Government has taken and will take, he said

By Ng Jun Sen

 

 

SINGAPORE — The Government is “considering the best way forward” on the law which criminalises consensual sex between men, stating that any change will need to respect different viewpoints, consider them carefully, and after having consulted different groups, said Home Affairs and Law Minister K Shanmugam on Thursday (March 3).  

 

“If and when we decide to move, we will do so in a way that continues to balance between these different viewpoints, and avoids causing a sudden, destabilising change in social norms or public expectations,” he said.

 

Mr Shanmugam was responding to a question from Nee Soon Group Representation Constituency Member of Parliament Derrick Goh on the issue during the debate into the budget of the Home Affairs Ministry, and following a Court of Appeal judgement on Monday that said Section 377A of the Penal Code is “unenforceable in its entirety” and poses no threat of prosecution.

 

Experts who spoke to TODAY said that the ruling has indeed given homosexual men “clear legal certainty” that they will not be prosecuted under Section 377A, but that the position on homosexual sex still “remains rather untidy”, as the court did not rule on the constitutionality of the provision.

Mr Shanmugam said the Attorney-General’s Chambers is looking carefully at the judgement, and reiterated that the Government has explained its stand of a “live and let live approach” previously.

 

 

“We seek to be an inclusive society, where mutual respect and tolerance for different views and practices are paramount. The Government has thus taken the approach that while Section 377A remains on the books, there will be no proactive enforcement. AGC takes a similar approach,” he said.

 

This was also why the Maintenance of Religious Harmony Act expressly states that any attack on LGBT+ (lesbians, gays, bisexuals, transgender and others) groups or persons is an offence and cannot be tolerated, said Mr Shanmugam. 

 

“LGBT+ individuals are entitled to live peacefully, without being attacked or threatened,” he said.

 

Nevertheless, Mr Shanmugam noted that social attitudes towards homosexuality have changed since 2007, when Parliament last debated the controversial provision. 

He noted that the LGBT+ community are upset that their experience of being hurt or rejected by their families, friends, schools, companies is not recognised and often denied, but on the other hand, “a large majority” want to preserve the overall tone of society.

 

“In particular, the traditional view of marriage as being between a man and a woman, and that children should be raised within such a family structure. Their concern is not Section 377A per se, but the broader issues of marriage and family,” he said, stressing that there are also many among this group who also support the repeal of Section 377A.

 

“Both these viewpoints are valid and important,” said Mr Shanmugam.

 

This is why policies need to evolve in order to keep abreast with these changes in views, and legislation needs to evolve to support updated policies, he added.

 

“The Government is considering the best way forward. We must respect the different viewpoints, consider them carefully, talk to the different groups,” said Mr Shanmugam.

He then addressed the appellate court’s judgement, which had noted that Singapore’s “compromise” with Section 377A is unique. 

 

“Our approach strikes a balance: Preserving the legislative status quo, whilst accommodating the concerns of those directly affected by the legislation. The Court recognised that the Government did this in order to avoid driving a deeper wedge within our society,” he said.  

 

The judgement also noted that Singapore’s approach seeks to keep what to do with Section 377A within the democratic space. Past court judgements on Section 377A have also ruled that these are highly contentious social issues that lie within the province of Parliament.

 

“Socially charged issues, such as Section 377A, call for continued discussion and open-ended resolution within the political domain, where we can forge consensus, rather than in win-lose outcomes in court.

 

“In this way, we can accommodate divergent interests, avoid polarisation and facilitate incremental change.”

 

Mr Shanmugam then noted that the court judgement had highlighted the importance of creating space for peaceful co-existence among the various groups, as the balance between the various interests around Section 377A has grown more delicate. 

 

“These opinions align with the approach that the Government has taken in dealing with Section 377A, and that it intends to take as it considers the changes in our social landscape since 2007,” he said.

 

 

[singalion]

 

 

 

Section 377A court ruling largely erases uncertainty on prosecution but legal position 'remains untidy': Lawyers

Published March 1, 2022

 

 

• One legal expert said that the apex court’s latest decision has given homosexual men “clear legal certainty” that they will not be prosecuted under Section 377A
• However, the experts pointed out that the position on homosexual sex still “remains rather untidy” even with the court’s decision
• It also now raises the question of whether Parliament will provide greater clarity beyond its 2007 stance and the court’s legal protection

By Louisa Tang

Published March 1, 2022

 

INGAPORE — The Court of Appeal’s ruling on Monday (Feb 28) has made it clear that all sexual acts between men, including consensual acts carried out in private, will not be prosecuted under Section 377A of the Penal Code, legal experts said.

 

The experts, however, pointed out that although the apex court ruled that Section 377A is unenforceable in its entirety, it did not conclusively rule on whether the provision is constitutionally valid and therefore, this issue remains open.

 

In its judgement released on Monday morning, five appellate judges dismissed three separate appeals over constitutional challenges mounted against Section 377A by three gay men — the second time in a decade that the apex court here has ruled on the matter.

 

The High Court had earlier thrown out the challenges in 2020, which were brought up after an Indian court decided to lift a ban on consensual gay sex in September 2018. 

 

In delivering the Court of Appeal’s judgement, Chief Justice Sundaresh Menon said that Section 377A is unenforceable in its entirety unless and until the Attorney-General (AG) of the day provides clear notice that he, in his capacity as the Public Prosecutor:

• Intends to reassert his right to enforce Section 377A proactively by way of prosecution
• Will no longer abide by the representations made by AG Lucien Wong in 2018 as to the prosecutorial policy on sexual acts between two consenting adult men in private

 

 

'CLEAR LEGAL CERTAINTY' FOR HOMOSEXUAL MEN

 

Mr Marcus Teo, a Sheridan Fellow from the law faculty of the National University of Singapore (NUS), said that the apex court’s decision has given homosexual men “clear legal certainty” that they will not be prosecuted under Section 377A.

 

The court reasoned that this would uphold the Government’s promise made over a decade ago that “homosexual individuals would not be harassed and could live freely within the space afforded to them”, he said. 

 

Assistant Professor of Law Benjamin Joshua Ong from the Singapore Management University (SMU) said that the apex court's decision has a broader effect than the AG's previously stated policy. 

 

Mr Wong had said in 2018 that it was not in the public interest to enforce Section 377A against "consenting adults in a private place". However, the Court of Appeal has now held that Section 377A is not enforceable altogether in any case, Asst Prof Ong said.

 

Associate Professor of Law Eugene Tan, also from SMU, agreed that the ruling provides legal protection that sexually active homosexual men have sought since Prime Minister Lee Hsien Loong said in 2007 that Section 377A would not be actively enforced, even though Parliament ruled to retain it.

 

 

In its latest judgement, the apex court had noted that uncertainty over how Section 377A would be applied or enforced had left gay men “unable to plan their lives adequately”.

 

However, both Mr Teo and Asst Prof Ong said that the ruling does not mean any male-male sexual intercourse is now legal.

 

General laws such as those criminalising sexual intercourse with a minor still apply to everyone.

 

“That means that, for example, if two men have sex in public, they cannot be prosecuted under Section 377A, but instead can be prosecuted under a law that criminalises public indecency by anyone.

 

“In my view, that is a positive development as the charge would then accurately reflect the gravamen of the offence. When two people have sex in public, the crux of the wrong is that it is public indecency; whether or not they are men is irrelevant,” Asst Prof Ong said.

 

As for the legal ramifications arising from the judgement, Assoc Prof Tan of SMU said that the position on homosexual sex still “remains rather untidy” even with the court’s decision.

 

 

It raises the question of whether Parliament will provide further clarity beyond its 2007 stance and the court’s legal protection.

 

He added that this could be done by amending Section 377A, by striking out the words "or private". 

 

Section 377A is now as follows: 

“Any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to two years.”

 

Separately, Asst Prof Ong pointed out that the Court of Appeal has now clarified that the AG cannot prosecute someone for failing to report conduct covered by Section 377A to the police.

 

In terms of the constitutionality of Section 377A, because the apex court did not express a concluded view on it, someone could argue again that it is unconstitutional should the AG change his policy on non-enforcement.

 

 

Its remarks that Section 377A did not violate Article 9(1) of the Constitution are not binding and the issue remains open, Asst Prof Ong added.

 

Mr Teo from NUS said that the apex court had, in its judgement, further discussed important points of law under the Constitution of Singapore in relation to constitutional guarantees to life and liberty, freedom of expression and equality.

 

WHAT LBTQ GROUPS SAY

More than a dozen lesbian, gay, bisexual, transgender and queer (LGBTQ) groups put out a joint statement on Monday acknowledging that the judgement was a small step in the right direction but that it did not go far enough to provide the community “real protection”.

 

The groups also took issue with the court’s assertion that Section 377A does not stifle advocacy, saying that LGBT organisations here have “historically struggled” because they are "perceived as existing for an illegal cause or an illegitimate purpose”.

 

Pink Dot SG, a non-profit movement supporting the LGBTQ community, said in a separate statement that Section 377A’s real impact lies in how it "perpetuates discrimination across every aspect of life".  

 

One of the men behind the constitutional challenges — Mr Johnson Ong, a businessman and international radio disc jockey — said in an email statement that he was disappointed with the outcome, but added that it did not mean the end of the community’s “pursuit for equality”.

 

 

 

[singalion]

 

I found the court findings contradicted what the Attorney General published in 2018:

 

Here the relevant excerpt from the Court of Appeal:

 

The Court of Appeal held that the entirety of Section 377A is "unenforceable" unless and until the Attorney-General of the day provides clear notice that he, in his capacity as the public prosecutor, intends to reassert his right to enforce the law by way of prosecution and will no longer abide by representations made by the then-AG in 2018 as to the prosecutorial policy that applies to certain conduct. Chief Justice Menon said it is therefore "unnecessary" for the Court of Appeal to address the constitutional questions raised by the appellants.

 

1) The AG never said in 2018 that 377A will not be enforced at all by way of prosecution.

2) The AG refers to his prosecutor's discretion to enforce which has not been curbed.

 

 

If you read the statements by the Attorney General, he even insisted on his prosecutor's discretion!

 

Further, everything still hangs on the public policy by the Prime Minister, the Home Affairs Minister or Law Minister.

If there is any direction from them to the AG, then the position may change any time.

 

To me it was a too simple route out of the issue taken by the Court of Appeal.

Constitutional Courts must also look at potential unconstitutionality of norms in particular if it affects Criminal laws.

Same comes with resulting discrimination or treatments on other parts of life of citizens, for example the Censor policy in movies, films etc...

 

 

 

Here what was stated in 2018 by the Attorney General :

 

Govt has not curbed prosecutor’s discretion on gay-sex law: A-G

Current A-G explains how public prosecutor would utilise own discretion on decision to charge

JONATHAN WONG

Oct 03, 2018

 

The Government has not removed or restricted prosecutorial discretion for Section 377A, Attorney-General Lucien Wong said in a statement released yesterday.

He noted that former A-Gs Walter Woon and V.K. Rajah "have recently suggested that it is not desirable for the Government and Parliament to direct the public prosecutor (PP) not to prosecute offences under Section 377A of the Penal Code, or to create the perception that they are doing so.

 

"Such comments may give rise to the inaccurate impression that the exercise of the PP's discretion has been removed or restricted in respect of section 377A".

 

Mr Rajah had written a commentary in The Sunday Times this week in which he noted that "from a legal point of view, the assurance given in Parliament that Section 377A (the provision that criminalises sex between men) although not repealed will not be enforced, is constitutionally unsatisfactory".

 

Posting on the Ready4Repeal website, National University of Singapore law professor Woon wrote: "We cannot have a crime which is not enforced. The Government should not tell the public prosecutor that some things are crimes but there will be no prosecution."

 

A-G Wong stressed that the police, when conducting investigations into an offence under 377A, "will decide whether or not there is sufficient basis to refer the case to the PP". "It will then be for the PP to determine whether to prosecute.

 

"In doing so, the PP exercises his independent discretion on whether to charge the offender, solely on the basis of his assessment of the facts, the law, and the public interest.

 

"While the PP is entitled to consider public policies in exercising his discretion, these do not fetter the exercise of prosecutorial discretion."

 

He also noted that "the Government's position on Section 377A is that the police will not proactively enforce this provision, for instance by conducting enforcement raids".

 

"However, if there are reports lodged by persons of offences under Section 377A, for example, where minors are exploited and abused, the police will investigate."

 

To illustrate this point, he cited an example of how, in 2008, then Deputy Prime Minister and Minister for Home Affairs Wong Kan Seng "explained that in the case of an offender who had been charged under Section 377A of the Penal Code, a police report was lodged by a 16-year-old male who had oral sex with the suspect".

CIRCUMSTANCES

The police referred the case to the PP after completing investigations, A-G Wong said, and the PP "decided to charge the accused under Section 377A after taking into account all the facts and circumstances of the case, including the complainant's age and the fact that the offence had taken place in a public toilet".

 

A-G Wong noted: "The PP’s exercise of prosecutorial discretion has always been, and remains, unfettered. In the case of section 377A, where the conduct in question was between two consenting adults in a private place, the PP had, absent other factors, taken the position that prosecution would not be in the public interest. This remains the position today."

 

A committee which was set up in 2016 to conduct a wide-ranging review of the Penal Code had submitted its 500-page report and recommendations to Law and Home Affairs Minister K. Shanmugam on Aug 31.

 

Section 377A was not part of the review.

 

Correction note: This article has been edited for clarity.

 

 

 

 

[singalion]

As a warning :

 

Note that the exception is laid for two consenting adults in a private place.

 

This as a reminder, being caught in a public place would still be charged under 377A.

 

I m not sure if there is any real definition what is a private place?

[Guest Academy award]

On 3/3/2022 at 6:17 PM, singalion said:

 

Is there a new approach or something moving???

 

 

Government 'considering best way forward' on Section 377A while respecting different viewpoints: Shanmugam

 

 

Published March 3, 2022

 

Home Affairs Minister K Shanmugam noted that attitudes towards homosexuality have changed since 2007 when Section 377A was last debated in Parliament.

• Addressing the recent apex court judgement on Section 377A, Home Affairs and Law Minister K Shanmugam said the Government is considering the best way forward
• Any move will be done in a way that continues to balance different viewpoints, and avoid causing a sudden, destabilising change in social norms or public expectations
• He noted that social attitudes on homosexuality has changed since Parliament last debated the issue in 2007; and policies, legislation have to evolve in tandem 
• The appellate court's judgement aligns with the approach to Section 377A that the Government has taken and will take, he said

By Ng Jun Sen

 

 

SINGAPORE — The Government is “considering the best way forward” on the law which criminalises consensual sex between men, stating that any change will need to respect different viewpoints, consider them carefully, and after having consulted different groups, said Home Affairs and Law Minister K Shanmugam on Thursday (March 3).  

 

“If and when we decide to move, we will do so in a way that continues to balance between these different viewpoints, and avoids causing a sudden, destabilising change in social norms or public expectations,” he said.

 

Mr Shanmugam was responding to a question from Nee Soon Group Representation Constituency Member of Parliament Derrick Goh on the issue during the debate into the budget of the Home Affairs Ministry, and following a Court of Appeal judgement on Monday that said Section 377A of the Penal Code is “unenforceable in its entirety” and poses no threat of prosecution.

 

Experts who spoke to TODAY said that the ruling has indeed given homosexual men “clear legal certainty” that they will not be prosecuted under Section 377A, but that the position on homosexual sex still “remains rather untidy”, as the court did not rule on the constitutionality of the provision.

Mr Shanmugam said the Attorney-General’s Chambers is looking carefully at the judgement, and reiterated that the Government has explained its stand of a “live and let live approach” previously.

 

 

“We seek to be an inclusive society, where mutual respect and tolerance for different views and practices are paramount. The Government has thus taken the approach that while Section 377A remains on the books, there will be no proactive enforcement. AGC takes a similar approach,” he said.

 

This was also why the Maintenance of Religious Harmony Act expressly states that any attack on LGBT+ (lesbians, gays, bisexuals, transgender and others) groups or persons is an offence and cannot be tolerated, said Mr Shanmugam. 

 

“LGBT+ individuals are entitled to live peacefully, without being attacked or threatened,” he said.

 

Nevertheless, Mr Shanmugam noted that social attitudes towards homosexuality have changed since 2007, when Parliament last debated the controversial provision. 

He noted that the LGBT+ community are upset that their experience of being hurt or rejected by their families, friends, schools, companies is not recognised and often denied, but on the other hand, “a large majority” want to preserve the overall tone of society.

 

“In particular, the traditional view of marriage as being between a man and a woman, and that children should be raised within such a family structure. Their concern is not Section 377A per se, but the broader issues of marriage and family,” he said, stressing that there are also many among this group who also support the repeal of Section 377A.

 

“Both these viewpoints are valid and important,” said Mr Shanmugam.

 

This is why policies need to evolve in order to keep abreast with these changes in views, and legislation needs to evolve to support updated policies, he added.

 

“The Government is considering the best way forward. We must respect the different viewpoints, consider them carefully, talk to the different groups,” said Mr Shanmugam.

He then addressed the appellate court’s judgement, which had noted that Singapore’s “compromise” with Section 377A is unique. 

 

“Our approach strikes a balance: Preserving the legislative status quo, whilst accommodating the concerns of those directly affected by the legislation. The Court recognised that the Government did this in order to avoid driving a deeper wedge within our society,” he said.  

 

The judgement also noted that Singapore’s approach seeks to keep what to do with Section 377A within the democratic space. Past court judgements on Section 377A have also ruled that these are highly contentious social issues that lie within the province of Parliament.

 

“Socially charged issues, such as Section 377A, call for continued discussion and open-ended resolution within the political domain, where we can forge consensus, rather than in win-lose outcomes in court.

 

“In this way, we can accommodate divergent interests, avoid polarisation and facilitate incremental change.”

 

Mr Shanmugam then noted that the court judgement had highlighted the importance of creating space for peaceful co-existence among the various groups, as the balance between the various interests around Section 377A has grown more delicate. 

 

“These opinions align with the approach that the Government has taken in dealing with Section 377A, and that it intends to take as it considers the changes in our social landscape since 2007,” he said.

 

 

Something cosmetic like removing the word "private"? And the law becomes even more redundant as the public nuisance act exists. Then back to court for repeal again?

 

Back and forth, the objective is to postpone repealing it for as long as possible.

 

It's tedious like watching over many episodes an unmarried Victorian woman agonising for years whether to have sex with his beau.

 

 

 

 

[singalion]

In my view for the Government it is not so much a push from inside Singapore but more a "review" as Singapore is always red listed in the Human Rights Reports from the UN Human Rights commission on discrimination.

[Guest Citizen]

On 3/3/2022 at 7:13 PM, singalion said:

In my view for the Government it is not so much a push from inside Singapore but more a "review" as Singapore is always red listed in the Human Rights Reports from the UN Human Rights commission on discrimination.

I think they don't care at all what others think of them unless there are economic sanctions. There isn't any at the moment.

[Guest Citizen]

"The court recognised that the Government did this in order to “avoid driving a deeper wedge within our society”, he added. "

 

Why he cannot see it is the law that is driving the wedge within society by emboldening and giving power and legitimacy to discrimination and those who discriminate, that 377a is abetting and encouraging persecution, discrimination, disrespect, taunting, harassment and bullying of LGBT within society, which is what is tearing society apart.

 

"One of the things that upsets the LGBT+ community is that many feel that their experience of being hurt or rejected by their families, friends, schools, companies – is not recognised, indeed often denied."

 

Not just hurt and rejection but more seriously persecution, discrimination, disrespect, taunting, harassment and bullying.

 

"Mr Shanmugam added that the Government had “expressly included” in the MRHA (Maintenance of Religious Harmony Act) that any attack on LGBT+ groups, or on persons because they are LGBT+, will be an offence, and won't be tolerated."

 

How about including the clause in Maintenance of SOCIAL Harmony Act because some people attack LGBT people because they hate or dislike LGBT persons due to other reasons that has nothing to do to religious teaching?

[yhtang]

On 3/3/2022 at 6:49 PM, singalion said:

As a warning :

 

Note that the exception is laid for two consenting adults in a private place.

 

This as a reminder, being caught in a public place would still be charged under 377A.

 

I m not sure if there is any real definition what is a private place?

 

I seem to recall a very ling time a go there was a case where two men had sex in a hotel but were charged with having sex in a public place. 
This was because a hotel is not deemed to be a private place.  

But I stress I read this a long time ago and my memory may not be accurate.

 

[Guest Roy Tan]

 

[Guest Try and see]

So if there are two guys inside a swimming pool toilet/shower cubicle who are not disturbing anyone, can the lifeguard still call the police and get them arrested?

 

Or if a security guard sees the same thing at a shopping centre toilet, is he empowered to call the police?

 

Cos they used to do that.

[Guest Try and see]

On 2/28/2022 at 5:04 PM, Guest Huh ? said:

 

Huh, this news is so yesterday.. The victory had long been celebrated ages ago. In fact, i dun recall any prosecution of gay sex for the past 20 years.  Gosh, you have my sympathies for having gay sex in fear prior to this court ruling .. I have been having so much fun all this while.. 😁

 

You think that just because the Straits Times didn't report it, so it means zero occurrence? 

[Guest Guest]

Remember the "giving of a drumstick to take back the whole chicken" statement? Ultimately, even if 377A gets repealed, it is only done so that someone else will win even bigger in some other motives. 

 

LGBT Singaporeans will never win because other laws can and still will be used against the LGBT communities in the future, and perhaps even much more aggressively. The root cause of the problem was never in the law itself. As a matter of fact, it is not even the society that is the problem. It is the policymakers with their policy-enforcing cronies. Even if the country successfully repeal 377A and take away the sword from the swordman, you still have not taken the man away. 

[Guest Dun geddit]

On 3/4/2022 at 11:10 AM, Guest Guest said:

Remember the "giving of a drumstick to take back the whole chicken" statement? Ultimately, even if 377A gets repealed, it is only done so that someone else will win even bigger in some other motives. 

 

LGBT Singaporeans will never win because other laws can and still will be used against the LGBT communities in the future, and perhaps even much more aggressively. The root cause of the problem was never in the law itself. As a matter of fact, it is not even the society that is the problem. It is the policymakers with their policy-enforcing cronies. Even if the country successfully repeal 377A and take away the sword from the swordman, you still have not taken the man away. 

If 377a is repealed, policies will loosen up to reflect the move forward. I find it odd that Shamugam said when policies change, laws will have to change too. Why is it the other way round?

[Guest Procrastinate?]

How on earth will policies change if the law don't change? To wait for policy changes first before the law is repealed, it is never going to happen in Singapore. Shamugam are you trying to find excuse not to do anything again?

[Guest 377A]

“Their concern is not Section 377A per se, but the broader issues of marriage and family. Many amongst this group, also support decriminalising homosexual sex between men. Both these viewpoints are valid and important,” Shanmugam said.

So whats the issue to repeal it ? He keeps repeating the same in parliament and in TV new.

 

[Guest Double standards]

More sophistry, doublepspeak, prevarications and equivocations just to evade, postpone and procrastinate repealing 377a AGAIN.

 

So what's the COP's issue with Raeesah Khan again???

 

Double standards....

[Guest Try and see]

And it's very strange that the 377A law is against gay sex between men only, but it does not include lesbian sex between women.

[Guest I no voting ccb]

On 3/4/2022 at 7:57 PM, Guest Try and see said:

And it's very strange that the 377A law is against gay sex between men only, but it does not include lesbian sex between women.

You know in Victorian era women were perceived as without sexual drive and agency.....

 

Singapore is apparently VERY VERY VERY BACKWARDS!!!!!!!!!

[singalion]

On 3/4/2022 at 7:57 PM, Guest Try and see said:

And it's very strange that the 377A law is against gay sex between men only, but it does not include lesbian sex between women.

 

From that angle the unconstitutionality is already quite obvious...

 

As this was introduced by the British it seems also quite obvious that this fact supports the view that the previous 377 (now 377A) was really intended to curtail homosexual activity between British soldiers and officers with local men...

 

 

[singalion]

On 3/4/2022 at 10:51 AM, Guest Try and see said:

So if there are two guys inside a swimming pool toilet/shower cubicle who are not disturbing anyone, can the lifeguard still call the police and get them arrested?

 

Or if a security guard sees the same thing at a shopping centre toilet, is he empowered to call the police?

 

Cos they used to do that.

 

Yes because the gay sex happens in public space.

 

The no to prosecution applies only to consensual gay sex in a private place.

 

Swimming pool toilets or shopping center toilets are not private places.

 

 

[singalion]

On 3/4/2022 at 12:17 PM, Guest 377A said:

“Their concern is not Section 377A per se, but the broader issues of marriage and family. Many amongst this group, also support decriminalising homosexual sex between men. Both these viewpoints are valid and important,” Shanmugam said.

So whats the issue to repeal it ? He keeps repeating the same in parliament and in TV new.

 

 

Yes, but he never explains what 377A ( a statute in the Penal Code) has to do with marriage and adoption.

From that point he is already not persuasive.

From decriminalising 377A does not automatically follow the right for homosexual marriage.

If he can't even be fair to point this out to these "traditionalists" , then who?

 

And this thing about family is also not persuasive. Does anyone here believe that less people would marry if 377A is abolished?

 

Just look at European countries, Israel or India, in some countries there are still discussions whether homosexuals can marry or adopt children while homosexuality had been decriminalised a long time back.

 

The "broader" thing is actually the societal view or consequences on getting rid of 377A, the whole pyramid will crack down...once you take it away (gay movies, school sex education, broadcast laws, healthcare etc etc...)

 

[singalion]

On 3/4/2022 at 10:58 AM, Guest Try and see said:

 

You think that just because the Straits Times didn't report it, so it means zero occurrence? 

 

The last case reported just 1 year ago or some months back referred to gay sex with a boy <Banned Words>.

Remember the case when the below 1-8y  boy allowed the older guy to oral and penetrate but later the boy ran away and made a report.

 

Unfortunately, it is so difficult to find these cases as the local news here never uses the word homosexual.

 

Some MP can ask Shanmugam how many cases in the last 10 years on 377A.

 

Edited March 4, 2022 by singalion

[Guest Citizen]

On 3/4/2022 at 8:41 PM, singalion said:

The "broader" thing is actually the societal view or consequences on getting rid of 377A, the whole pyramid will crack down...once you take it away (gay movies, school sex education, broadcast laws, healthcare etc etc...)

 

Not true. Taiwan never had gay sex laws but their schools were banned from comprehensive sexuality education, and their healthcare didn't recognise LGBT couples. The "pyramid crack down" thing you mentioned is only imagined in the minds of homophobes and conservatives.

 

Btw what's so bad about healthcare recognising needs of LGBT people? Aren't LGBT humans too?

 

 

[singalion]

On 3/5/2022 at 12:13 AM, Guest Citizen said:

Not true. Taiwan never had gay sex laws but their schools were banned from comprehensive sexuality education, and their healthcare didn't recognise LGBT couples. The "pyramid crack down" thing you mentioned is only imagined in the minds of homophobes and conservatives.

 

Btw what's so bad about healthcare recognising needs of LGBT people? Aren't LGBT humans too?

 

 

 

I think you misunderstood my post or the purpose. 

 

I just intended to give examples what the Government  claims to see the society calling as "broader" issues. 

 

With healthcare I was pointing to safe sex promotions or campains.

 

 

[singalion]

 

 

Religious groups say they will work with Government on best way forward on Section 377A

 

Published 4 Mar 2022, 9:37 pm SGT

 

 

SINGAPORE - Several religious groups on Friday (Mar 4) welcomed remarks by Home Affairs and Law Minister K. Shanmugam on a law that criminalises sex between men, saying that they will work with the Government as it considers the best way forward on Section 377A of the Penal Code.

 

The statements from the National Council of Churches of Singapore (NCCS), Alliance of Pentecostal & Charismatic Churches in Singapore (APCCS), Roman Catholic Archdiocese of Singapore, Islamic Religious Council of Singapore (Muis) and Sikh Advisory Board come a day after Mr Shanmugam said that the unique compromise of retaining the law, but not enforcing it proactively, has helped to maintain the balance between the various interests in society.

 

He was commenting on the issue in Parliament after an MP asked him about a recent Court of Appeal ruling which said that Section 377A will stay on the books, but cannot be used to prosecute men for having gay sex.

 

Mr Shanmugam had said that issues surrounding Section 377A are deeply divisive, and that is why Singapore has taken a "live and let live approach".

He added that public policies, along with legislation, will need to evolve to keep abreast of changes in views in society.

"If and when we decide to move, we will do so in a way that continues to balance these different viewpoints, and avoids causing a sudden, destabilising change in social norms and public expectations," he said.

 

 

The NCSS noted that Mr Shanmugam had said the Government's stand on the issue remains unchanged from 2007, when Prime Minister Lee Hsien Loong stated in Parliament that Singapore will uphold "a stable society with traditional heterosexual family values, but with space for homosexuals to live their lives and to contribute to society".

 

It added that the approach has "worked so far in preventing a deeper wedge from being driven within our society".

 

Matters relating to sexuality are highly contentious and can be deeply divisive for society if not handled properly, the council said, adding that whether to repeal Section 377A is something to be decided by Parliament rather than the judiciary.

 

The APCCS noted that under the Maintenance of Religious Harmony Act those from the lesbian, gay, bisexual and transgender (LGBT+) community are designated as a protected class.

 

The alliance said it hoped this would "go a good way towards addressing the concerns and pains around unjust discrimination".

It added that it is committed to rejecting discrimination in its own community.

 

Nevertheless, the alliance urged the Government to maintain the status quo, stressing that the family unit should continue to be grounded in a heterosexual marriage where children are raised by a father and a mother.

 

Any change to Section 377A would lead to adjustments in national policies relating to marriage, family, children, education, media, housing, and more, the APCCS said, and warned that if the family unit is undermined, it would "result in a suite of knock-on effects" including the erosion of societal strength and resilience.

 

The Roman Catholic Archdiocese of Singapore, meanwhile, said: "We are fortunate that we have a government that places stability and harmony in our multi-religious and multiracial society above any sectarian interests."

 

It added that the Catholic Church does not condone the marginalisation of those who do not subscribe to its values, including the LGBT+ community.

"Likewise, we ask that others who do not subscribe to our values, also respect our right to exercise our religious beliefs without fear or favour," said the archdiocese.

 

Muis in its statement welcomed the Government's commitment to maintaining the family norms and values in Singapore, and called for all to be treated with respect and compassion.

It said that it recognises the challenges of maintaining cohesion and harmony amid evolving views and practices in society, adding that it agrees with the Government's emphasis on the preservation of social cohesion.

"We support the Government's approach for continued discussion and will continue to provide our feedback to the government guided by on our norms and values. We will also continue to collaborate with our partners as we work to strengthen our family institutions," said Muis.

 

 

The Sikh Advisory Board also agreed with prioritising cohesion and said: "We believe this outcome considers and balances the interests of all segments of society and preserves social harmony and cohesion."

 

 

It encouraged all involved to continue a constructive dialogue on the matter.