High Court judge dismisses all three challenges to Section 377A

SINGAPORE: Three men have failed in their challenges against section 377A of the penal code, after a High Court judge dismissed their court actions against the law that criminalises sex between men on Monday (Mar 30).

Justice See Kee Oon will release his full judgment grounds at a later date, lawyers told CNA outside the chambers shortly after the decision.

According to Section 377A of the Penal Code, any man who commits any act of gross indecency with another man in public or in private can be jailed for up to two years. This extends to any man who abets such an act, procures or attempts to procure such an act.

The verdict was delivered in chambers, four months after arguments were made by the lawyers for the three men: Disc jockey Johnson Ong Ming, retired general practitioner Roy Tan Seng Kee and Bryan Choong Chee Hoong, the former executive director of LGBT non-profit organisation Oogachaga.

Mr Choong’s lawyers, led by Senior Counsel Harpreet Singh Nehal, had argued based on new historical material that was not available during a 2014 appeal.

They pointed to recently declassified documents demonstrating that the introduction of Section 377A in 1938 was to criminalise “rampant male prostitution” when Singapore was under British colonial rule.

Mr Ong’s lawyers, helmed by Mr Eugene Thuraisingam, put forth expert scientific evidence on the nature of sexual orientation, arguing that homosexuals cannot wilfully change their orientation and that Section 377A is discriminatory and violates the Constitution.

Lawyer M Ravi argued on behalf of his client Mr Tan that the “absurd and arbitrary application” of the law is a violation of the Constitution as all gay and bisexual men are obligated to report their consensual private sexual acts to the police.

This is “incongruous with the so-called non-proactive enforcement of Section 377A”, said Mr Ravi, who also argued that this law infringes the right to equality, life, personal liberty and expression.

The Attorney-General’s Chambers had maintained that Section 377A serves a “legitimate and reasonable” state interest, “regardless of whether and how it is enforced”.

They said the issue was “a deeply divisive socio-political” one that should instead be decided by Parliament, as the latter comprises democratically elected representatives accountable to Singaporeans.