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Court dismisses challenges to law criminalising sex between men

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From Channel News Asia

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panel, the Court of Appeal stressed that the appeals are "not about whether Section 377A should be retained or repealed", as this was "a matter beyond our remit".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 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.

"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.

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This ruling was entirely predictable. Singapore's PM has repeatedly said he will not do anything to get rid of Section 377A. On the other hand he has also said he will not enforce it except in instances where the law is openly disobeyed - by which I reckon that means something like public sex in an open area.

The cultural/religious argument that Singapore's government constantly throws out as its reason for not abolishing Section 377A is pretty much rubbish. The same reason was put forward by the Hong Kong government in the 1970s and 1980s which had the same law on the statute books. Roughly 95% of Hong Kong's population were Chinese and the government line was that the Chinese would never stand for legalisation of homosexuality. In those decades, it would routinely throw a few gay men in jail for a couple of years. It also had informants in the triads and in one of the two gay bars. One gay western solicitor found his time in jail little different to the luxury lifestyle he enjoyed when a free man. Thanks to corruption, he had a cell more like a well-furnished living room, all the good food he requested and a constant supply of young men!

Someone wrote some time ago about an infamous case of the "alleged" suicide in January 1980 of a police inspector who was "alleged" to be outed as gay the following day. If I can find the post I will link it to this thread. That was all patent nonsense. But in the inquest and the various enquiries that followed, the public learned a great deal about government harassment of the LGBT community and even of a special government department specifically to root out gays from positions of authority. One High Court judge on learning of this fled Hong Kong in considerable haste. It was even alleged that the unmarried Head of the Police Force was gay and enjoyed gay weekends in Kuala Lumpur. But he held his ground and was never removed.

As a result of the huge public fuss over the death of this policeman, the government tasked the Law Reform Commission with reviewing the anti-gay law. Its very clear recommendation was that it be abolished. Yet still the government sat on its arse and did nothing for several years. Ironically it was Hong Kong's return to China that forced Britain's hand. To become a full member of the international community, Hong Kong had to enact a Bill of Rights. Both parties agreed that the time had come for homosexuality to be decriminalised. The flood of complains from the local Chinese community never materialised. There was not even one peep! Thus from 1991 the Hong Kong LGBT community came gradually to be accepted. The many gay couples in the city could finally come out (if they wished) and gay bars, saunas and massage spas began to proliferate.

Presumably Singapore's government has similar concerns - even though it permits gay saunas and bars to operate. But I have rarely, if ever, seen any objections to the abolition from any cultural group on the island state, be it Chinese, Malay, Muslim or Indian. It is the small rabidly anti gay group of Christian evangelical Churches which hit the headlines every time the word "gay" is mentioned. As has been proved quite recently in Court, some of these groups are, like some of their American twins, very corrupt institutions. Why they are permitted to operate AND to have tax exemption totally beats me!

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Strong rumours from Singapore suggest that the government is finally going to get rid of the Section 377A anti-sodomy law left over from British colonial times. 

This is part of a letter recently sent out by Pastor Yang Tuck Yoong of Cornerstone Community Church, a long-time opponent of the repeal of Section 377A and LGBT rights in general, to other church leaders. The ruling PAP has informed them that Section 377A will be repealed within the next few months.


On Thursday, several of us were invited to meet with Ministers Shanmugam, Edwin Tong and Desmond Lee to discuss about the future of 377A
To summarise a few salient points of the meeting which are important:
In a nutshell, we have been informed that 377A will be repealed in the coming few months because there is a general understanding that though it may be a sin, gay sex ought not be criminalised. 
To balance this, the government is likely to put in a constitutional clause referencing the definition of marriage in the Woman’s Charter. 
This is different from enshrining a definition of marriage in the constitution itself. 
It is a technical move that merely prevents constitutional challenges to the standing definition of marriage (on the basis of it discriminating against homosexuals).
This means that while the government of today says it is ideologically committed to a one-man, one-woman marriage, this is not set in stone. 
The definition of marriage can be changed with a simple majority of parliament rather than a supermajority if it was enshrined in the constitution.
This puts the crosshairs of LGBT activists squarely on marriage and the new battleground of our country will shift to marriage. 
LGBT activists will seek to shape public consciousness of what marriage is, and attempt to get parliament to enact gay marriage because they believe that homosexuals should have a right to marry.
Likewise, the church must now protect the definition of marriage as a comprehensive and conjugal union of a man and a woman, ordered toward reproduction and the raising of healthy children.
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Until these bigoted religious organisations can appear in public alongside their "God" for all of us to see - and not one single religion has ever been able to present him to us in the flesh - then they should keep out of any debate which wishes to change the way people live their lives.

Their particular religious rules and beliefs should only apply to themselves.

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