For the last twelve months, prominent human rights lawyer M. Ravi has been fighting to overturn Singapore’s anti-gay sex laws, enshrined in section 377A of our Penal Code. Now, after this morning’s hearing, it looks like he might be one step closer to success.
Ravi’s eloquence was entirely expected, but what happened next was astonishing. Aedit bin Abdullah took the floor. As a crack lawyer from the AGC and former district judge, he should have been formidable. Yet his counter-arguments were weak, plagued by fallacies and circular logic.
The judges didn’t let this slide, either. We in the gallery were transfixed as each we watched the proceedings, each of the three judges taking turns to interrupt the counter-argument to point out the flaws and lapses in reasoning. At several points, the entire room began laughing at the absurdity of the replies, as when Abdullah resorted to mixed metaphors, protesting that the abuse of s377A was “just a spectre that is not real.”
At noon, the judges adjourned the court, declaring that they would reserve judgment. Their verdict should be released three to four weeks from now. This means it’s far too early to celebrate.
Still, this reporter is optimistic. Everything I’ve observed points towards a ruling in our favour – one of several victories we’ll need in the long journey towards gay equality in the eyes of the law.
Fridae has already covered the background of this case in an earlier article. But, for the sake of clarity, we’ll do a recap.
It all began on 9 March 2010, when police received a phone call complaining that two middle-aged men were having oral sex in a shopping centre toilet. Both men, a Mr Chin and Mr Tan Eng Hong, were arrested by the police and charged under s377A, guaranteeing them jail time.
On 24 September, Ravi filed an Originating Summons on behalf of Mr Tan. This summons challenged the legality of s377A, saying that it contravened Singapore’s Constitution: specifically, Article 12, which guarantees everyone equality before the law.
The AGC then withdrew their original s377A charges and substituted charges under Section 294, which forbids obscene acts in public. Both Mr Tan and Mr Chin pleaded guilty, and were fined S$3,000 each – a far lighter sentence than they would have otherwise received.
But Ravi and Tan weren’t satisfied with this partial victory. They insisted that the constitutional challenge be continued. On 15 March 2011, Justice Lai Siu Chiu of the High Court ruled that the constitutional challenge was not permissible, given that it wasn’t a matter of importance to be decided in court. Ravi then took the case to the Court of Appeal, where he reiterated his belief that a constitutional challenge was valid.
Ravi made three basic arguments on behalf of Tan:
1. Tan Eng Hong had the right and interest to pursue this issue even though his s377A charges had been withdrawn.
2. S377A contravenes the Constitution’s guarantee of equality of all before the law.
3. S377A also presents an exceptional case where the rights of a significant number of persons are marginalised.
Abdullah from AGC made three main counter-arguments:
1. As Tan was not, ultimately, prosecuted under s377A, he has no right nor interest in pursuing the issue.
2. Parliament has stated that s377A will not be proactively enforced; therefore gay men in Singapore are not marginalised by the law. In fact, the law is only exercised now when men are being investigated or prosecuted for other crimes, such as public sex, sexual assault or drug use.
3. If the court rules that s377A may be challenged constitutionally, then this creates a “slippery slope” situation where numerous frivolous claims can be made to challenge other laws on constitutional grounds.
Ravi had plenty of supportive data on his side. For instance, Justice Lai had previously conceded Tan’s right to pursue the issue, and had also acknowledged the illogicality of outlawing gay male sex and not gay female sex. He was able to point to how Singapore celebrated its non-discrimination even against lesbians at the UN’s Committee on the Elimination of Discrimination Against Women (CEDAW), and point to landmark cases where gay sex laws were overturned in Commonwealth territories such as India, Hong Kong and Australia.
However, there were two pieces of evidence that stood out. First, there was a news report of two men who were recently jailed under s377A, gleaned from Channel News Asia. On 14 December 2009, Muhammad Noor Izuan Sa’ad and Timothy Ang Ah Sa were arrested for having sex in a coffeeshop toilet. They were prosecuted by AGC and sentenced in September 2010, without any recourse to legal aid. Second, Ravi had confidential reports of men who had been investigated and given warnings by the police for having gay sex in private settings. Given these smoking guns, it sounded ludicrous when the AGC argued that the danger of prosecution under s377A was merely “theoretical”.
Faced with such facts, Abdullah’s arguments often sounded like so much bluster. At one point, he tried to defend AGC’s strategy of substituting charges: while the police might arrest people under s377A, but the AGC would prosecute them under other charges. In reply, Justice Prakash blithely suggested, “If it wasn’t on the statute books, it’d make your lives a bit easier, isn’t it?”
At another point, he argued that the challenge to s377A by no means counted as an “exceptional case” that required intervention of the courts. Justice Rajah then noted the irony of arguing for a law to be retained but not proactively enforced. “Doesn’t this make this an unusual case?” he concluded.
What struck me, however, was the fact that these judges appeared to be genuinely lacking in homophobia. There was of course the standard discomfort in all parties whenever the issue of sex in public toilets was brought up. However Justice Phang seemed to actually empathise with Singaporeans gay men, remarking, “We don’t want to be looking over our shoulders at all moments, as citizens. Unless a binding assurance [not to prosecute] can be given… but that can’t be done.”
He challenged the AGC to guarantee that s377A wouldn’t be used in the future – a challenge that the hapless Abdullah was unable to answer. He even pointed out that Parliament might change in composition and renege on their promises.
I’ve cited these specific retorts from the judges so that readers may understand why I’m filled with a sense of premature triumph – as are Ravi, Tan, Indulekshmi and practically everyone who was sitting in the gallery this morning. There may yet be a surprise upset in the verdict, but I’m comforted that Justices Rajah, Phang and Prakash have demonstrated a certain level of mature open-mindedness towards gay Singaporeans.
There are, of course, are many hurdles still to cross. If Ravi wins this case, he’ll have to bring up the issue of constitutionality in the High Court. There, it’ll face mighty odds, for in the history of Singapore there has never been a law struck down as unconstitutional.
But for now, we’ll have to count the weeks till the judges make their decision. Dare we hope for the best? Yes, we do. It’s the only way progress happens.