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10 Apr 2013

Singapore High Court upholds anti-gay sex law

In dismissing one of two legal challenges in which plaintiffs sought to have the country's anti-gay sex law declared unconstitutional, the judge concludes that while anal and oral sex in private between a consenting man and woman is considered "acceptable," the same conduct was "repugnant and offensive" when carried out between two men, "therefore no reason to strike down... s 377A... as arbitrary or discriminatory."

The High Court in Singapore today dismissed a legal challenge filed by a gay couple Gary Lim and Kenneth Chee. The two men, who have been partners for 15 years, had sought to challenge the constitutionality of section 377A of the Penal Code that criminalises sex between men and provides a jail term of up to two years.

The couple's lawyers had argued that the law violates Article 12 of the constitution which promises equal protection under the law, and that the continued existence of the law “legitimises and perpetuates stigma and discrimination against lesbian, gay, transgender and bisexual people in society.”

Their case was heard on Feb 14 and was the first of two cases being heard by Justice Quentin Loh. He is yet to rule on a separate constitutional challenge of the same statute before the High Court filed by Tan Eng Hong, who is represented by human rights lawyer, M Ravi.

In a 92-page decision released today, Loh said that “s 377A essentially addresses a social and public morality concern which our Legislature identified in 1938 and subsequently affirmed in 2007.”

Addressing the frequently asked question which was also raised by the plaintiffs: why have s 377A if no one is to be prosecuted under it, Loh said: “If there’s no prosecution of s 377A offences, that is no ground to say that s 377A is unconstitutional.”

Commenting on the 2007 repeal of s 377 which prohibited oral and anal sex between an opposite-sex couple, he noted: “In 2007, Parliament recognised that social norms and values in Singapore had changed, and that the majority of Singaporeans no longer saw anything morally wrong or objectionable in consenting heterosexual couples aged 16 and above engaging in oral and anal sex in private.”

He quoted Antonin Scalia’s statement in his dissenting opinion in Lawrence v Texas: “One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts–and may legislate accordingly.”

Loh added: “(D)uring the October 2007 Parliamentary Debates, Parliament considered s 377 and s 377A carefully, and after debating the matter fully, endorsed the repeal of s 377 but chose to retain s 377 A. I can see no basis in this case to interfere given my reasons set out above. It is clear that Parliament saw a reasonable differentia upon which to distinguish between two classes: anal and oral sex in private between a consenting man and a consenting woman (both aged 16 and above) was acceptable, but the same conduct was repugnant and offensive when carried out between two men even if both men were consenting parties. There is therefore no reason to strike down the basis of the classification prescribed by s 377A – viz, male homosexuality – as arbitrary or discriminatory, or on the ground that it does not bear any rational relation to the purpose of the provision.”

He concluded: “In my judgment, the object of s 377A is clear. It criminalises male homosexual conduct that is not acceptable in our society. Its retention was endorsed by Parliament in 2007… I also find that the purpose of s 377A is not a purpose which is so patently wrong as to render it an illegitimate purpose upon which to base a classification prescribed by the law."

In a statement released following the judgment, Lim and Chee said they “are disappointed that the High Court ruled against us and upheld s377A.”

“Having been together for 15 years, it is disheartening that we are criminals in the eyes of the law because of a segment of society that will not live and let live, but insist on pushing their version of religion and morality on us.

“We believe that most Singaporeans do not believe that gay people should be jailed for something they can’t change, and we believe that an equal and fair Singapore is worth striving for. We have received many supportive messages since this began, and we ask that people continue to come together as we work towards a Singapore that everyone can truly call home,” they added.

Lim and Chee are represented by veteran lawyer and former Law Society president Peter Low, Choo Zheng Xi and Indulekshmi Rajeswari. According to a spokesperson, the legal team will review the High Court decision before deciding whether or not to appeal.

Singapore

Reader's Comments

1. 2013-04-10 04:55  
...and so SING continues to live in the 19th century regarding sexuality...
2. 2013-04-10 05:09  
"It is clear that Parliament saw a reasonable differentia (sic) upon which to distinguish between two classes: anal and oral sex in private between a consenting man and a consenting woman (both aged 16 and above) was acceptable, but the same conduct was repugnant and offensive when carried out between two men even if both men were consenting parties. There is therefore no reason to strike down the basis of the classification prescribed by s 377A".

"Repugnant and offensive" to whom? Since Justice Loh explicitly refers to acts carried out in private, who exactly is being offended here? Is it the prurient people outside the closed room who speculate on what might be happening behind the closed door, but don't actually have to sit and watch this private act? Does he imagine that all over Singapore good, upstanding, heterosexuals in a moment of boredom with the evening's TV schedules suddenly think "I bet somewhere on this island, right this very minute there are gay men screwing each other... wow, that's repugnant!"??

Surely that "differential" is opinion, rather than fact - a very poor basis on which to reach a legal conclusion.

Perhaps the full 92 page judgement contains arguments which are based on something more substantial, but this brief summary suggests the ruling is based on assertions that seem to be simply illogical and actually ridiculous.
3. 2013-04-10 05:22  
This is Kakfa-esque. The court indicates the law would be unconstitutional if there were prosecutions under it, but then says the same law serves a legitimate purpose ... as long as you don't prosecute under it ? In other jurisdictions, when a judgment is so illogical as to be unreasonable, it can be reviewed in a higher court.
Comment edited on 2013-04-10 15:01:51
4. 2013-04-10 07:52  
Perverse, unjust and unconstitutional. Let's hope Tan eng Hong's challenge will win the day for gay men in Singapore.
5. 2013-04-10 09:36  
What a sad day when a judge is proud of being illogical.
6. 2013-04-10 10:49  
I'd wager lots of straight women in Singapore, as a matter of individual opinion, consider heterosexual anal sex "repugnant" … and yet Singapore law PROTECTS consensual anal penetration of women as young as 16. It is NOT clear from any detailed argument, presented in any quarter at all, that the Singapore parliament saw any "reasonable" difference at all.
7. 2013-04-10 11:26  
The only folly here is to think that law and the interpretation of law is anything other than illogical. All law elevates the needs and desires of one group over another. In many cases, there might be a near-unanimous consensus supporting the ideas enshrined in a law or regulation, in others it might be just the opposite. In either case, someone's needs and desires will be trumped by the law.

Personally, I chose not to take a good job offer that required living and working in Singapore over the issue of 377A. And since that time, I've actively avoided all travel to Singapore. I refuse to give anything of myself if the law, by its very nature, makes me a criminal by my very nature.

For those of us that are not Singaporean, we can put our money and our work skills to the effort by denying them to Singapore. For Singaporeans, its your lives. Maybe its time to send a message to the government through civil disobedience,. Oh yes, I forgot; most of you are closeted and hence are more restrictive and condemning of LGBT in and through your silence and deceit than 377A could ever hope to archive. Forgive me for saying, but for one so economically developed, Singapore is a pathetic society where tolerance and compassion are concerned. Fear and self-interest continue to be the stabilizers of choice.
Comment edited on 2013-04-10 11:28:27
8. 2013-04-10 11:32  
Somehow I think that Mr Loh here is the repugnant and offensive 'element'. It can't get anymore 'antique' when it comes to his p.o.v. or can it ?

I love SG, but the gov't and all it's attached 'arms' should wake up and realise it is the 21st century now.
Comment edited on 2013-04-10 12:30:37
9. 2013-04-10 14:55  
Poor Singapore. This legal outcome sends a message to the rest of the world. If Singapore promotes this kind of human rights violation then one can only wonder what other aburdities are also supported by Singapore's legal community particularly, and that tiny country generally. It will undoubtedly impact upon the country's civic, commercial and cultural links with the rest of the civilised world. It's a sad and silly day for Singapore, and a sad and silly day for social justice.
10. 2013-04-10 15:21  
Quentin Loh is an ass and so are the bunch of words he calls "law"... abstracted garbage... and to quote Scalia, who shouldn't even be on the U.S. Supreme court, is outrageous...
11. 2013-04-10 16:30    
The full written judgment can be downloaded from this link: http://www.fridae.asia/downloads/j-loh-judgement-s377A.pdf

12. 2013-04-10 16:47  
Read Jothie Rajah's 'Authoritarian Rule of Law'... not so readily available in Sg, but can be ordered easily online. She's the daughter of a High Court judge in Sg & the ex wife of a minister. In summary, she has studied & documented how the courts in Sg have evolved to uphold rule BY law, rather than to uphold the common law's principle of rule OF law. If the latter were indeed practised here in Sg, I think the outcome would have been different.

Human rights or liberal changes are not going to come from within Sg's own establishments. These changes are usually 'forced upon' Sg's one party system by external forces - for eg the revision of the laws relating to capital punishment, data privacy rights of its citizens, increased governance of the international flow of funds in our banking system etc. These were forced upon us by international human rights organization & protocols & globalization.

I'm optimistic the time will come when s377A will similarly be quietly removed when Sg faces the possibility of being labelled a pariah state for upholding such an archaic, repugnant & morally offensive law. I learnt those words from Justice Loh.
13. 2013-04-10 18:36  
So sad that the Singapore High Court is still so much in the 18th century. As a country that prides itself by moving from being a 3rd world to a 1st world country in a short period of around 30 years or so, it seems to me as a non-Singaporean who visits from time to time and who has many friends there, that Singapore progress is now stagnating from a number of points of view. And for the record, my partner of 18 years is Singaporean, so I do have a reasonable understanding of Singapore, its background, politics, people, customs etc.

We here in Australia generally have very good acceptance, recognition, and protection by means of various State and Federal laws, employment protection etc., and are struggling with why BOTH our CRAZY major political parties will not (yet) support marriage equality, we tend to take it all we do have for granted, and forget that what we have had for some 30+ years, others in other countries are still fighting for the basics.

(As an aside, with the French Senate passing same-sex marriage in the past 24 hours, adding to the many other countries who have already done so, we here in Oz can only hope that it will be yet another "nail in the coffin" of the conservative views held by the current Australian Parliament.)

GO SINGAPORE...! It might seem to be a long, slow, drawn-out legal/political process which maybe might require another few years of frustration, but your time will eventually come, otherwise Singapore would eventually be seen as a 1st world back-water... and I cannot ever imagine that happening.
14. 2013-04-10 19:00  
This is not a setback. It was to be expected at first instance. If you remember, this happened initially in the other ongoing case when it was struck out, but which was reversed on Appeal in a very positive judgement by more senior judges, allowing the case to proceed.

Put yourself in the shoes of the judge: whatever he decided was going to be appealed by one side or the other. The safest option is therefore the status quo, and let the Appeal judges decide.

I have not seen the judgement, but if it is bad, it will be much easier to Appeal.
15. 2013-04-12 21:08  
Had a quick look. It’s a bit of salt in the wound that the judge quotes from the writings of Thio S.M. and her daughter Thio Li Ann. e.g. paras 40,41,109, 115, etc.!
16. 2013-04-13 00:48  
This “rational nexus test” sounds a bit unfit for purpose to me, maybe the Appeal Court will have another look at it, it can always be modified.
For example, is the judge saying that if a law (377a) that targets and discriminates against a minority class (e.g. gay men), in order to reflect the prejudices of (supposed) majority of society, it is Constitutional precisely because it targets an identifiable minority and it is rational precisely because it reflects the prejudices of the majority towards that minority? If so, isn’t that rather Kafkaesque reasoning? Surely that cannot reflect the general purpose in the Constitution of protection for minorities from discriminatory laws passed by the majority?
It’s interesting that this judgement appears not to recognise gay men as a class despite that the Court of Appeal did, and seems to focus on behaviour instead. Also there appears to be implied criticism of the Appeal Court for its decision on standing (locus standi) (para 10). Anyway it looks like there’s plenty to consider for Appeal. Good luck to the Plaintiffs!
17. 2013-04-13 19:03  
Surprise, surprise!! By now it should have dawned on anyone watching that changes only come in real democracies where the best talent rises to the top. As we all know Singapore is just another one of those dynastic gerrymanders of Asia... Lew Kwan Yew was talented but as is usually the case the son is an ignoramus incapable of understanding modernity.

AND of course the judges appointed by him are craven toadies.

Ah well roll on the inevitable for liberated societies. Uruguay last week and New Zealand next week Wednesday 17th April will be the 13th country where gay MARRIAGE is legalised. Singapore is a JOKE. Not to far from Uganda & Kiev.
18. 2013-04-14 19:06  
i had a feeling things just won't be as easy when it comes to singapore, and i was right. i feel sad for the glbt community in singapore. may them all have the strength to withstand their government's decision to NOT consider them as an equal.
19. 2013-04-21 13:41  
20. 2013-04-21 13:45  
still such a backward country!
what is the connection between marriage and the kind of sex a gay couple have after all does anyone ever question the different kinds of sex straight couples have, surely the love between partners is sufficient!
21. 2013-08-30 20:17  
Even the present Pope of the Catholic church declared that he cannot JUDGE Homosexuals. Judge Loh`s arguments supporting the retention of Sect. 377a holds absolutely no water. Any intelligent S`porean can understand that he had passed his judgement on gays based on Bigotry and not on an honest examination of the issue. Singapore is the laughing stock of the world !
Last year, there were about 15,000 participants at the "Pink Dot". This year, its 21,000. ( In 1977, when I participated in my first gay Pride in London, there were only about 20,000 gays on the march. ) In 2014, more & more friends & families of gays will join the Pink Dot. Martin Luther king cryed out "I have a dream!". This dream to abolish Sect. 377a will happen sooner than later. We shall overcome !!
Chye

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