11 Nov 2010

The 377A hide-and-seek

A lawyer in Singapore who intends to challenge the constitutionality of Section 377A may be unable to do so if the challenge is dismissed on the basis that the charge brought against his client has been amended. Alex Au considers the issues.

On 10 November 2010, Chin Chee Shyong was fined S$3,000 for an “obscene act” in a public place. He had originally been charged under the infamous Section 377A of the Penal Code, but after representations were made to the Attorney-General’s Chambers by his lawyer and others, the charge was reduced to one under Section 294 of the Penal Code, which reads:

294. Whoever, to the annoyance of others —
(a) does any obscene act in any public place; or 
(b) sings, recites or utters any obscene song, ballad or words in or near any public place,
shall be punished with imprisonment for a term which may extend to 3 months, or with fine, or with both.

Attending the court hearing this morning, the following was what I gathered about the facts of the case:

On 9 March 2010, two waiters from the restaurant called New York, New York in the underground Citylink Mall called the police when, around 9 p.m., they spotted two men in adjacent toilet cubicles having oral sex under the lavatory partitions. The waiters’ attention had been drawn by sounds of moaning.

Apparently, this was not the first time they had noticed such incidents. This time however, one of the waiters video’d what he saw.

By the time the police arrived, the two men had left, so the police told the waiters to call them once more should the men be seen again.

The men were not seen again, but another two men happened to use the same public toilet for sex, not long after. They too used separate cubicles, but one reached (crawled?) under the partition to the other and fellatio took place.

What was not clear from the statement of facts read out in court was how the waiters came to notice these other two. Were they watching the toilet closely in the hope of seeing the first two again? Probably, I would think.

Naturally, they called the police again and this time, the second pair of men — Chin and Tan Eng Hong — were still in the toilet when the officers arrived. The two were caught and Tan admitted to performing oral sex in his police statement.

Both Tan and Chin were charged under Section 377A.

However, a few weeks ago, the Deputy Public Prosecutor (DPP) reduced the charge for both to one under Section 294. According to Tan’s lawyer, M Ravi, the DPP explained to the judge that they were doing this “as a matter of public policy” (Ravi said I could quote him as recollecting those words by the DPP), an expression that M Ravi took to indicate that the Attorney-General’s Chambers would not be using Section 377A again for similar incidents.

However, Chin’s lawyer, who attended the same pre-trial conference, did not recall the DPP using any expression like that. If the DPP had used such an expression, it would certainly have pricked his ears, he said. Referring to his notes, he said the DPP merely said that after considering the facts, they were “recalibrating” the charge to one under Section 294.

I am now not certain what significance one should give to this turn of events.

Anyway, Tan’s case will come up later this month. It is not yet clear if he plans to plead guilty.

* * * * *

Prior to the DPP lowering the charge, M Ravi, who is well-known in Singapore for adopting an aggressive position on behalf of his clients, had told the court at the very first court mention of this case that he intended to challenge the constitutionality of Section 377A.

Subsequently, he followed up with an Originating Summons, the first few lines of which says,

Section 377A of the Penal Code is inconsistent with Article 9 of the Constitution, and is therefore void by virtue of Article 4 of the Constitution; and Section 377A is inconsistent with Articles 9 and 14 of the Constitution, and is therefore void by virtue of Article 4 of the Constitution; and for these reasons the charge brought against the accused under Section 377A is void.

What are Articles 4, 9 and 14 of the Constitution?

Article 4 says that the Constitution is the supreme law in Singapore and any act of the legislature that is inconsistent with the Constitution is void.

Article 9 is relatively long, the first sentence of which says “No person shall be deprived of his life or personal liberty save in accordance with law”.

Article 14 guarantees the freedom of speech, assembly and association subject to this and that.

The High Court date for the constitutional challenge, which runs separately from the Section 294 charge against Tan, is set for 7 December 2010. I am given to understand that the Attorney-General’s Chambers (AGC) will be asking the High Court to dismiss this challenge on the ground that there is no outstanding charge under Section 377A for Tan to answer.

M Ravi is going to dispute this line of reasoning. His argument is likely to be as follows:

If the High Court allows this as grounds for dismissing his constitutional challenge, then it effectively says that no legislation can be challenged, however adverse the effects it has on people, unless it is brought by someone being prosecuted under it.

Such a narrow window of opportunity is unreasonable and does not adequately serve the interest of justice. Laws can have effects even when no prosecution results; is one to say that short of being prosecuted, no one can ever challenge the constitutionality of any piece of legislation?

For example, let’s suppose Parliament passed a law that says only females aged 40 and above can be granted a licence to do a certain kind of business. The government thus routinely refuses to issue such licences to younger women and men who also wish to carry on such a business. Because no one wants to take the risk of being charged and going to jail for conducting a business without the requisite licence, no one openly flouts the law, in which case no one is actually prosecuted.

Is there no route open to anyone affected by the law (i.e. younger women and men) to challenge it? Should our courts take the view that since Mr A or Miss B has not been prosecuted for flouting the law, they have no right to challenge it? Wouldn’t that be the same as saying, too bad, if Parliament deprives you of the equal right to conduct this kind of business, you’ll just have to lump it?

Same with Section 377A: it has effects even when no one is being prosecuted. One direct effect is when the Education Ministry (MOE) refuses to allow any other sex education but that which paints homosexuality in a negative light. Right up there in its Sexuality Education guidelines is the requirement that providers must stress that “homosexual acts are illegal”, and that the “MOE does not . . . promote homosexuality”. As we all know in Singapore, “not promote” is a euphemism that is taken to mean that no positive or even neutral speech about homosexual orientation is to be allowed. Any and all discussion of homosexual orientation must paint it in negative light. Does that not undermine the self-confidence and self-esteem of the gay teenager? Does that not perpetuate the stigma and prejudice held by his peers, who will grow up to be adults?

Another effect, albeit indirect, of Section 377A, is unequal censorship. After the Education Ministry has made its strenuous efforts to perpetuate prejudice, the Information Ministry then says, oh look, the majority of Singaporeans dislike encountering gay-positive characters and themes in media; that being the case, we have a popular mandate to censor out anything that makes gay people look good. The censorship and resulting bias in media portrayal in turn reinforce that same stigma and prejudice, leading to job discrimination and the overall second-class position for gay people in society.

Are our courts going to say that no recourse is open to anyone so affected until he has been caught and charged under Section 377A?

Well, we shall see what happens in December when this motion by the AGC to dismiss is heard.

Alex Au has been a gay activist and social commentator for 14 years and is the co-founder of People Like Us, Singapore. Alex is the author of the well-known Yawning Bread website.