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27 Sep 2010

Singapore gay advocacy group questions use of Section 377A

Despite the Prime Minister’s promise not to proactively enforce Section 377A which criminalises sex between men, a man is facing charges under the law while another two were convicted last week.

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A 47-year-old Singaporean man identified in the media as Tan Eng Hong has been charged with Section 377A of the Penal Code, which criminalises sexual acts between men. If convicted, the accused faces up to two years imprisonment.

Tan is alleged to have committed the offence in March with another consenting male inside the toilet cubicle of a popular shopping mall.

The Supreme Court of Singapore building and where the High Court is located

Last Friday, Tan’s lawyer M Ravi filed an application in the High Court to challenge the legality of Section 377A.

According to Today newspaper last Friday, Ravi said in his eight-page application: "The continuance of Section 377A on the statute book operates to brutalise a vulnerable minority segment of the citizenry for no fault on its point. A section of society has been thus criminalised and stigmatised to a point where individuals are forced to deny the core of their identity and vital dimensions of their personality."

In a statement published on its website on Monday, gay advocacy group People Like Us declined commenting on the constitutional challenge that Ravi initiated on behalf of his client as the matter is now before the courts.

M Ravi, a prominent human rights lawyer in Singapore

PLU stated that while the group does not condone "sex in public spaces where conflict with other members of society can occur” and it does not disagree that such acts may be prosecuted, the state should do so “using gender-neutral laws, so that whether the specifics are same-sex or opposite-sex, there is parity in treatment."

The statement pointed out that Section 20 of the Miscellaneous Offences (Public Order and Nuisance) Act which makes “indecent behaviour” in public an offence and is written in a gender-neutral way could be used instead of Section 377A.

Section 377A mandates a prison sentence, but Section 20 gives the judge a choice of imposing a fine of up to S$1,000, or a prison sentence of up to one month, or both, for the first offence. 

"It is regrettable that prosecutors have chosen to use Section 377A instead of this one, especially since the penalties are dissimilar," the statement read.

"Given the disparity in penalties, any decision to use Section 377A precipitates discriminatory treatment, and it is for this reason that People Like Us consider it an inappropriate law to use. Section 20 of the Miscellaneous Offences (public Order and Nuisance) Act being available, it is hard to understand why prosecutors are still choosing to use Section 377A; or what beliefs underlie the decision to perpetuate the use of this law."

PLU quoted Prime Minister Lee Hsien Loong who declared in October 2007 that Section 377A will not be "proactively enforced".

"The current prosecution of Mr Tan raises questions about what the Prime Minister meant when he said that. Even if the State does not actively seek out men who have sex with men to prosecute but rely instead on private security guards to report, such an argument ignores two important facts:

1. the State has discretion whether to charge them under Section 377A or another law;

2. the continued existence of Section 377A legitimises homophobia and the private vigilantism of security guards, who then take it upon themselves to do the proactive work that the State says it does not do."

The group further called on the Singapore government to take immediate steps towards legislative repeal of Section 377A, and that the Prime Minister’s October 2007 promise not to proactively enforce this law should be honoured through a total moratorium.

Last week, two men identified in the media as Muhammad Noor Izuan Sa'ad, 23, and Timothy Ang Ah Sai, 49, were jailed for four weeks yesterday for gross indecency and giving false information to the police, and two weeks in jail last month for gross indecency respectively. Gross indecency refers to Section 377A of the Penal Code of Singapore which criminalises sex between mutually consenting adult men. The court heard that the pair was seen behaving suspiciously and entering a toilet at Mustafa Centre on Nov 14 last year. They were  detained after a security officer alerted security. When Muhammad Noor was interviewed by the police, he lied that Ang had molested him but eventually admitted it was he who committed an indecent act on Ang.

Singapore

Reader's Comments

1. 2010-09-27 21:37
Duh? Isn't Singapore's self claimed justice system already an international JOKE for decades? Zzz.

Well done Ravi- the Force be with you; but tread carefully, they may create a new Penis code to just get fighters like you. Peace Bro !
Comment #2 was deleted by its author on 2010-09-28 04:44
3. 2010-09-28 04:48
I sent the following news item to Fridae's editors but curiously they didn't take it up. Actually I read it fast and hadn't seen the charge of sodomy on an 8 year-old boy. If it is true, this is child molestation and/or rape and is unacceptable. But even so, I find the possible sentence exorbitant.

http://www.mmail.com.my/content/50233-boy-14-may-face-20-years-jail-sodomy

Boy, 14, may face 20 years jail for sodomy
The Malay Mail
Submitted by Najiah on Thursday, September 23rd, 2010

MARHALIM ABAS
Thursday, September 23rd, 2010 13:59:00

PUTRAJAYA: A 14-year-old boy faces a 20-year jail term and whipping after he was charged with one count of sodomising an eight-year-old schoolmate this morning.

The boy claimed trial to the charge under Section 377(B) of the Penal Code at the Kajang Children's Court.

He was charged with voluntarily committing carnal intercourse against the order of nature between 12pm and 1pm on Aug 10 to Aug 13.

The offence was committed behind the hall of an international school in Cheras.

Magistrate Naziah Mohd Alias fixed bail at RM4,000 with one surety and Oct 28 for re-mention.

She asked the boy's parents to hire a counsel.

Prosecution was carried out by Deputy Public Prosecutor Fahrul Razi.
4. 2010-09-28 20:06
talk about self sabotage when will some guys grow up and stop being skanky queers, they don't do them selves or any one else any favours rooting in public toilets, their actions reflect negaively on other more decent gay men striving to lead good positive lives in Singapore it's selfish behaviour, any one belonging to any miniority group ought to be more more aware their personal actions albeit unfairly DO reflect on others of that group or community, it's the way things are.
5. 2010-09-28 20:28
Sex in public toilets or any other public spaces is outright illegal. Straight or gay.

When are gay men gona get it in their head not to have sex in public toilets? Have some self respect...
6. 2010-09-28 23:55
Saliw, the point has been clearly made in paragraph 6 of the article:
"...the group does not condone "sex in public spaces where conflict with other members of society can occur” and it does not disagree that such acts may be prosecuted, the state should do so “using gender-neutral laws, so that whether the specifics are same-sex or opposite-sex, there is parity in treatment."

I think the point here is that 377A (a law which specifically penalises gay sex), instead of Section 20 (gender-neutral) was used in charging the man, which contradicts the official stand that PM Lee has made, that 377A will not be "proactively enforced".

Lesson learnt, boys and girls, take it lying down and they're gonna push you harder and harder. This point was highlighted so strongly during the 377A debate and yet many chose to believe the govt's verbal stance rather than put down your name to have this archaic piece of legislation removed IN BLACK AND WHITE. Well guess this is where the 'told you so' comes in.
7. 2010-09-29 00:41
wow, the Supreme Court of Singapore looks like a big UFO landed on top of it

8. 2010-09-29 03:12
Here is another one, more positive:

Two Malaysian gays granted asylum in the UK
FreeMalaysia Today
Tue, 28 Sep 2010 14:45

By Teoh El Sen

PETALING JAYA: Two Malaysian men successfully claimed refugee status in the UK on grounds that they are gays last month despite the low success rates of such claims based on sexual orientation.

The UK had granted the status to the duo -- Seow Shih Yung, 30, from Penang and Wong Yu Xiu, 25, from Petaling Jaya – based on their fear of persecution on grounds of their sexual orientation.

Under Section 377 of the Malaysian Penal Code, in an offence classified as "carnal intercourse against the order of nature", a convicted person may be punished with imprisonment of up to 20 years and also liable to fine or whipping.

"Both were in a homosexual relationship while in Malaysia, and moved to the UK because they feared that they were not able to practise homosexual relationship openly," said their lawyer Uma Devi Rajasundram.

Uma Devi said Seow and Wong went to the UK on a working holiday visa and the former had overstayed and became an illegal.

Seow was caught while working at a Chinese takeaway restaurant in Bristol, Wales. He then claimed asylum at a detention centre as he is a gay and unable to practise homosexual relationships openly in Malaysia.

"Wong then voluntarily claimed asylum on the same ground as he is Seow’s partner," said Uma Devi.

Seow and Wong were granted asylum in early August 2010.

Substantial evidence

Between 2005 and 2009, the British Home Office had initially refused 98% of all claims for asylum from gays or lesbians, Uma Devi said, quoting a rights group Stonewall in its recent "No Going Back" report.

“In the past, it was very difficult for social groups such as lesbians, gays, bisexuals or transgenders to claim asylum based on fears of persecution (in their home country). It was hard for them to argue and win even with substantial evidence of ill-treatment," said Uma Devi.

The United Nations 1951 Convention on the Status of Refugees provides that members of social groups are entitled to asylum in states that are parties to the convention if they can establish a well-founded danger or fear of persecution if they returned to their home country.

The House of Lords, in a recent test case, had unanimously allowed appeals from two gays, from Cameroon and Iran, against the decision of British officials who had earlier rejected their request for asylum because the former said they could hide their sexuality by behaving discreetly, said Uma Devi.

"The justices said the UK Immigration Tribunal should in future decide whether an applicant was gay and whether he would face persecution if he lived openly in his own country. If this evidence can be established, then the applicant would have a well-founded case for asylum.”
9. 2010-09-29 05:06
Thank you supertramp for keeping the conversation focused on 377A. A law already exists to cover public indecency. And, thank goodness for M. Ravi.
10. 2010-10-01 11:48
There was an interesting phenomena in the UK years ago at a time when police spent thousands of hours of time not properly investigating break-ins and violent crimes in favour of pursuing gays in toilets, often by the use of agents-provocateurs in tight jeans & singlets. On conviction, their names were sent to newspapers, which featured them in sensationalist ways.

I sat as the gay rep on police committees and had a hard (no pun intended!) time defending this "cottaging"- gay sex in public toilets. However, what I didn't know until much later was that according to a huge survey conducted by Time Out magazine in London, straights were doing this far more: the proportion was : straights 87%, gays 13%. However I could find no trace in court records of straights being convicted for this offence under any law or by-law.

The problem is course, as other commentators have pointed out, it gives gays a bad name and makes genuine users of toilets feel extremely uncomfortable.
11. 2010-10-01 21:30
Sorry-re posting no 10- I forgot to say that on my asking the ""Time Out" magazine survey people, it seemed that the straight guys had met the girls outside the toilets, often on the way home, and had waited for the women's toilets to be empty, before they both went into cubicles for quickie sex. This is the difference between the two uses of toilets, Unfortunately, the survey didn't ask questions about safe sex/ condom use.

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