Singapore gay sex law ‘absurd’: couple’s lawyers in repeal case

An application to repeal the part of Singapore law criminalising male gay sex was heard in the High Court Thursday morning.

The case to repeal section 377A of the Penal Code on the basis of a constitutional breach was filed by graphic designers Gary Lim, 44, and Kenneth Chee, 38, who are in a 15-year relationship. The section criminalises acts of “gross indecency” between two consenting men, with a jail term of up to two years.

In a closed-door hearing, the couple’s lawyers – Peter Low, Choo Zheng Xi and Indulekshmi Rajeswari – argued  before Justice Quentin Loh that the law was  “absurd, arbitrary and unreasonable” as it violated Article 12 of the Singapore constitution which states that all persons are entitled to equal protection by law.

They also noted that the section’s unlawfulness was due to differences that were not easily understood such as vague, broad specifications of “acts of gross indecency”, and that the law only criminalises acts by men.

The lawyers also argued the section was absurd as it criminalises an “innate and immutable” identity.
Debate over the repeal intensified in January after a pastor campaigned for the law to be kept, prompting the Attorney-General Chambers (AGC) to release a note urging the public not to comment on the case.

Section 377A also applies to heterosexuals: AGC

In their rebuttal to the arguments of the gay couple’s lawyers, the AGC said that the law does not state that the section only targets gay men, but men as a whole. This means that heterosexuals and bisexuals will also be charged under the law, they said.

The AGC also said that section 377A “has the clearly-stated purpose of reflecting public morality”, despite the gay couple’s lawyers arguing that the male-only law means that sex between females was under public morality by the government.

“Although Parliament has chosen to retain the wording of Section 377A which does not encompass homosexual acts between females, this decision strikes a legitimate balance between the moral norms of the majority and the interests of homosexuals,” argued the AGC, represented by lawyers Aedit Abdullah, Sherlyn Neo and Jeremy Yeo.

The hearing was the second time the ruling was constitutionally challenged in court in recent years but the first without a criminal charge underlying it. In September 2010, lawyer M. Ravi filed a challenge towards section 377A on behalf of his client, Tan Eng Hong who was charged for allegedly having oral sex with another consenting adult male in a public toilet’s locked cubicle.

The couple’s lawyers noted that section 377A causes “tangible harm” to affected members of the population by limiting HIV outreach and causing psychological damage. However, supporting affidavits by HIV outreach expert Professor Roy Chan and counselor for homosexual men Bryan Choong were rejected by the judge.

An open court hearing is not normally held for constitutional challenges as no witnesses are to be questioned and arguments are legal in nature. The high court has reserved judgment over the case and is expected to deliver its verdict at a later date.

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