The Court of Appeal today has allowed two challenges filed by two sets of plaintiffs to be heard together.
The application to consolidate the two cases was filed by M Ravi, lawyer for Tan Eng Hong who first filed his constitutional challenge to section 377A on 24 September 2010 after he was arrested, charged and detained under the same law for performing oral sex on another man in a shopping center toilet.
Tan’s challenge was dismissed earlier this month by Justice Quentin Loh while gay couple Gary Lim and Kenneth Chee's challenge was dismissed by the same judge in April this year. Both parties are appealing the rulings. Lim and Chee's Court of Appeal hearing which is was originally scheduled on Monday, October 14, will be postponed.
Lim and Chee first filed their challenge in November 2012 following the Court of Appeal ruling by Judges of Appeal Andrew Phang, V K Rajah and Judith Prakesh who said that the current law extends to private consensual sexual conduct between adult males, it "affects the lives of a not insignificant portion of our community in a very real and intimate way."
The judgment also noted the difference between "no proactive enforcement" and "no enforcement" as the government declared in October 2007 that Section 377A will not be "proactively enforced". It further declared the constitutionality or otherwise of s 377A to be of real public interest and that the "continued existence of s 377A in our statute books causes them (gay men) to be unapprehended felons in the privacy of their homes.
The Court of Appeal, which comprised Judges of Appeal Andrew Phang and VK Rajah, and Justice Woo Bih Li, ruled today that the issues in the two cases are essentially the same and should be heard together.
M Ravi told the court that such a move would prevent the same questions of law and constitutional issues from being tried on separate occasions with potentially different results.
According to a statement from M Ravi, the Court of Appeal today made observations that if they should decide that Lim and Chee have no standing, given the fact that they were neither charged nor prosecuted under section 377A, unlike Tan, their appeal could be dismissed on that ground alone, without having to consider the main arguments of their case.
M Ravi, who has acted as Tan’s pro bono counsel in this matter for more than three years, said in a statement: “This gives greater hope for the s377A challenge to succeed because Tan was given standing by the Court of Appeal in 2012 when he won the previous appeal. This further reinforces Mr Tan’s critical role in the challenge to overturn this anachronistic legislation which is a sad remnant of colonial law.”
“Mr Tan has made immense sacrifices from all fronts to pursue justice and has been resolute in his belief that justice will be done and his fundamental rights will be protected under the constitution. He believes the Court will recognise his immutable personal sexual orientation and recognise his right to live with dignity in this society,” he added.
Lim and Chee, who had opposed this application to have the cases consolidated as well as Tan’s earlier application (which was later withdrawn) to intervene in their case, told Fridae that they hope for both legal teams to co-operate for the best outcome.
“We believe that both our case and Tan Eng Hong's share the same important cause and are working for the same objectives. We welcome the joining of his hearing with ours before the Court of Appeal and we expect that our legal teams will be in communication to ensure that both sets of arguments, while different, will complement one another in order to jointly put forward the strongest possible case to declare s377A unconstitutional,” Lim and Chee said through their spokesperson.
The hearing for both appeals is expected to be held early next year.