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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.

Singapore

读者回应

1. 2010-11-12 02:39  
I'm curious... when was the last time anyone was charged and convicted via 377A?

Does anyone know?
2. 2010-11-12 02:51  
reminds me of my previous encounter at Changi some years back: http://sexytenga.wordpress.com/2008/11/18/lost-lov/

is this article saying that it is a CRIME to have sex in public places?

but why?
3. 2010-11-12 06:15  
If I go to Singapore and report myself to the police department that I fucked a guy last night in Singapore. Can they charge me under 377A? If they charge me under 377A, then you have the case to challenge the constitution of it. I am a Canadian citizen, Can I leave Singapore while pending the hearing? Can I be absent from the hearing (not to visit Singapore for the rest of my life but send my ashes there when I die to continue fucking ass as ghost) while you are fighting for its constitutionality? lol As long as I can leave Singapore, why not shacking this small island by my cock? Let the court declare 377A unconstitution or asking Canadian government to send me back for my jail term because I fucked a man ass in Singapore. lol I am sure my government will teach Singapore lawmakers to learn to accept fucking an ass is as excited as fucking a pussy. Both are juicy. Don't let my Canadian citizen in your jail because we are sure he (ME) will fuck others inside your prison.

Sound interesting? Any lawyer wants to use me, contact me. Hey, make sure you bill me out and take me to the airport right away and run away. Let the media greet me at the arriving gate in Australia for a press conference. WOW !! Let the media and the Singapore government running the whole show. We watch. If they stop me from leaving, make sure you guys visit me in the jail. lol Cryinggggg !

OMG. I don't mind to be in CNN or youtube. lol Someone has to change 377A, Let CANADA changes it.
回应#4於於2010-11-12 07:16被作者删除。
5. 2010-11-12 07:16  
@Kazu: A very interesting idea! But I think, as Alex Au has explained, the Public Prosecutor (PP) has discretion on which charges to pursue. They can choose not to charge anyone under S377a. They had indeed done it already by withdrawing the S377a charge in this case. This withdrawal MAY make it impossible for the lawyer to challenge S377a's constitutionality. Usually, a victim must exist for a law to be challenged.

But my opinion is that even if the PP may choose to purposely not apply s377a in order to avoid its constitutionality being challenged, there may exist other bases for which s377a's constitutionality may be challenged. The "victims" may not necessarily be individuals who are charged under this law, but a group of people who can prove that they suffer as a consequence of the existence of s377a.

It's quite clear in Singapore's situation that the existence of s377a has influenced several public policies that adversely affect the gay community. For example:
1) the govt had avoided or reduced promotion of safer gay sex because gay sex is illegal under s377a. Those gays who are HIV-positive and who can demonstrate that they had contracted the disease as a result of ignorance, which had resulted from little safer gay sex education, may argue that s377a had indirectly caused their ignorance.
2) those gays who suffer various forms of psychological illnesses caused by discrimination, fear of prosecution, family conflicts, etc. can argue that s377a has caused the discrimination or their fears.
3) For those devotees of certain legitimate religious sects such as Soka Gakkai which accept homosexual partnerships (http://articles.latimes.com/1995-07-01/local/me-19139_1_gay-marriage), they may argue that s377a hinders their religious freedom to believe that gay partnership is as holy as heterosexual partnership.
6. 2010-11-12 11:54  
Well, let see what will happen next. Good luck Alex and Singapore.
7. 2010-11-12 16:23  
Sinagpore's legal system continues to be a cause of curiosity - and condemnation - for other countries. For example, there is currently a Lot of international media interest in Alan Shadrake's story (no pun intended), coupled with international condemnation of Singapore's judicial system in this case (amongst many others).

He wrote a book criticising Singapore's death penalty, as Singapore has exectuted more people, per capita, than any other country in the world - something which continues to anger lots of human rights groups, and which he questioned in his book. In most other countries, it's not only a Right for the legal system to be examined and questioned by an author or the media, it's a Necessity ("Who polices the policemen?", as the old saying goes) - however, Mr Shadrake has been arrested and is awaiting trial for writing this book.

His arrest, and the reasons for doing so (with the Singapore judicial system having said that it 'gave him a chance' to 'correct' what he wrote), IS being extensively written about overseas, and IS being criticised by politicians, media groups, and human rights groups - something which, I suspect, may Not be news or written about in Singapore herself.

It's this kind of judicial system - where a country's court does as it wishes to serve Itself, rather than the People, and where those who question and criticise it can be jailed, rather than have a system explained - that is likely to make challenging Singapore's Section 377A pretty difficult. After all, ultimately, if a pesky lawyer started digging around too deep, and become too much of a thorn, what's to stop Him, or his legal system, being debarred and shut down for 'disrupting the harmony and the public harmony of the Singaporean legal system', or some other such nonsense?

So, good luck with this 377A action - however, without wishing to sound like a particularly cynical journalist (something I Always get a cheap laugh with if/when I say that at work, in our newsroom), I won't be surprised if the story develops - and ends abruptly - with a lawyer being arrested and/or dismissed, as That seems to be the Singapore way. Oh well... Singapore's not a Democracy, anyway...
8. 2010-11-12 19:54  
Interesting use of police and court time. Maybe a police caution to those involved would have sufficed.

Meanwhile news reports say gangs of youths are hacking people to death with choppers in Singapore. Seems the prospect of hanging does not deter them. But then, if hanging was any sort of deterrent, it would not be necessary to hang so many people, in fact there would be no need for actual hangings if the prospect worked as an effective deterrent.
9. 2010-11-12 20:45  
How long has 377A been around anyway? It's this kind of backward thinking that gives this country a bad rep. For all the constraints that Singapore imposes on its people, it's still a progressive country that takes care of its citizens better than most countries.

Now it just needs to iron out fuckups like 377A. The people in power seriously need to get with the times and bring their constitution up to speed--and stop acting like some in denial prepubescent child.
10. 2010-11-13 22:54  
337ABC are British products. Malaysia and India do have these problems.
11. 2010-11-14 06:44  
aw darn...then this means i have to play in secrecy if i go to singapore??? For shame on me!!! for shame....
12. 2010-11-16 18:02  
i get laid all the time in Singapore cause I get a room and treat guys really well

i think 377A doesnt apply anymore to classy and well behaved gay men, its never enforced everytime i get some in singapore,

everytime i hear some complaints about 377A its like Tory Spelling complaining about not getting her full inheritance, sounds like a bunch of rich kids whining

hmm, the A in 377A-- I think the A stands for you Alex and doesn't apply to those with class and good upbringings, I think a bunch of gay dads want to have a sit down with you-- no way would I ever let you near my son-- gay or straight!

you need to learn to have the decency to treat a guy well by treating him and having sex in a comfortable, safe and nice place

I think the law is only around today cause the patriachs with the power in Singapore are creeped out by you personally and no one listens to you anymore cause you mix gay rights with anti- PAP politics and people don't listen to you anymore

further more no one in the gay community listens to our gay activists anymore cause they are getting arrested for drugs, ripping off people in business/ investores, drunk driving and/ or constantly trying to save make excuses for bad behavior under the legal fog and guise of 377A, no one wants to take personal responsibility for their actions anymore

(you guys would make great polo players, though)

gay chivalry and treating guys we have sex with respect is now back in fashion, unbrindled hedonism has led to some terrible results and personally I have too many burned out circut party friends now wondering the hell has happened? even gay rights in Texas are passing you by

in the meantime, we have to suffer with the legacy of 377A because of the misdeeds of a few which is why some of our kids are getting bullied in school

Singapore needs some new gay leaders who can get things done and finally man up to the ills of our community and the bad stuff going on

the patriachs in power don't yet respect our gay leaders and that is the truth and nothing is gonna change until our leaders fuss up to the awful image and behavior they constantly project









13. 2010-11-17 23:08  
Lagunabro...you need to be more subtle bro, your tactic is too obvious here...and don't type while the voice in your head is actually talking (btw it's not God even if it's telling you Alex is the antichrist)...just take the 30 pieces and keep cool...
14. 2010-11-20 13:16  
1. Hahahahah , we just need to first behave ourselves first , so that we can gain the respect from others.

2. Do the things that we can be proud of , so that people can take us more seriously.

3. Being gay is not all about baring our bods , scantily dressed parties , drugs , booze and all night humping ...it's more to that for PLU sake.



15. 2010-11-20 13:21  
Lets be proud of ourselves !!!! Move on with our lives and make the mainstream people envy us !!

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