Fresh Challenge to S377A

Two men have filed a new challenge against Section 377A of the Penal Code. I'm sure most of us will be following the developments anxiously, to see if this law that signals that same-sex relationships are wrong will be overturned one day.

We reproduce the press release below.

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30 Nov 2012 (Singapore) – A fresh challenge has been made today against s 377A of the Penal Code, which criminalizes physical relations between two men. Gary Lim and Kenneth Chee, partners for 15 years, filed the challenge following a recent landmark ruling by the Court of Appeal in Tan Eng Hong v Attorney General (“Tan Eng Hong”) that clarifies that the very existence of an unconstitutional law in the statute books may suffice to show a violation of an applicant’s constitutional rights.

Singapore is the only one among thirty-five advanced economies [1] in the world that criminalises physical relations between men, and one of only four countries in East and South East Asia [2] to do so. Though the Prime Minister stated in parliament 5 years ago that s 377A would not be ‘pro-actively’ enforced, there have been cases since where individuals have been threatened and charged with s 377A by the police, which was remarked upon by the Court of Appeal.

“I don’t live in fear every day that I will get caught by the police because of my relationship with Gary but I know that s 377A labels me a criminal,” said Kenneth.

Gary adds: “While lawmakers have stated in Parliament that s 377A will not be ‘pro-actively’ enforced, this is not enough because it leaves the possibility of ‘passive enforcement’, should someone decided to make a complaint against us one day.”

In Tan Eng Hong, the Court of Appeal commented on the ‘very real and intimate’ injuries that were caused by s 377A and how it potentially ‘makes criminals out of victims’. The judges also raised the fact that the government’s ‘guarantee’ that s 377A will not be proactively enforced is problematic and also highlighted that police continues to issue ‘stern warnings’ to gay men in Singapore under the section.

Other important points:-

●    s 377A makes victims out of LGBT individuals. The possibility of arrest prevents men – and women - from contacting the police in criminal cases. For example, in cases of domestic violence, theft and even rape or abuse.
●    Fewer than 5% of the people living in East and Southeast Asia live in countries that criminalise homosexuality, and Singapore stands out in this small group. Historically, the country shared a similar provision criminalising homosexuality in its penal code with India and Hong Kong based on British colonial era legislation.  The latter two have since repealed such legislation.
●    s 377A has far-reaching impact beyond the criminal aspect, underpinning discriminatory regulations and policies, e.g. in media and broadcasting regulations, education, housing, and access to public health
●    The continued existence of s 377A prevents governmental, non-profits and other organisations from being able to develop and create programmes aimed at ensuring the physical and psychological health of LGBT Singaporeans and residents. This range from issues relating to workplace discrimination, bullying in schools, LGBT youth suicide and Sexuality Education.
●    Societies and groups related to LGBT issues can’t be registered in Singapore, which prevents the formation of community groups that may cater to the specific health and social needs of LGBT people.
●    Like everyone else, gays, as well as lesbian, bisexual and transgender individuals desire equal protection under the law and freedom from discrimination.
●    s 377A legitimises and perpetuates stigma and discrimination against lesbian, gay, transgender and bisexual people in society



[1] "Advanced economies" as identified by the IMF World Economic Outlook Group http://www.imf.org/external/pubs/ft/weo/2012/02/weodata/groups.htm#ae. Singapore is the only economy in this list which criminalizes consensual sexual activity between men.
[2] Singapore, Malaysia, Brunei and Myanmar, all of whom inherited British colonial era criminalisation laws.