“With Section 377A, gay and bisexual men are doubly criminalised”—lawyer for repeal argues

Singapore—The third legal challenge to Section 377A of the Penal Code, which is Singapore’s colonial-era law that criminalize acts of “gross indecency” between males, was also heard in chambers by Justice See Kee Oon on Monday, November 18.

This challenge was filed by Dr Tan Seng Kee, an LGBT activist, who was legally represented by lawyer M Ravi of Carson Law Chamber.

Mr Ravi’s argument is that Section 377A violates Article 9 of the country’s Constitution, which guarantees the right to life and personal liberty since it legally obligates the reporting of those who transgress this particular law, which includes gay men, their family, and friends, as well as medical professionals.

According to Mr Ravi, “The mandatory obligation on all gay and bisexual men under Section 424 of the Criminal Procedure Code (CPC) to report to police their consensual private sexual acts caught by Section 377A is incongruous with the so-called non-proactive enforcement of Section 377A, thus resulting in absurd and arbitrary application of 377A which is a violation of Article 9(1) of the Constitution.”

Furthermore, the lawyer argued that keeping Section 377A would doubly criminalize gay and bisexual men “on the first level via committing acts prohibited by Section 377A, and on the second level by not reporting these acts to the police.”

On the matter of putting health professionals needing to report on cases of violation of 377A as well, Mr Ravi argued that while an affidavit filed by Dr. Derrick Heng’s on behalf of the AG says that the Ministry of Health “will not require its healthcare professionals to report patients to the police if they are aware that the patient has male sex partners, or even if the patient is HIV-positive,”  this is also contrary to Section 424, which renders criminal the omission of healthcare professionals in the civil service of reporting their patients to the police if they are aware of the sexual acts of their gay or bisexual patients. Mr Ravi said that “In this regard, contrary to the AGG’s assertion, the healthcare professionals are faced with the spectre of prosecution.”

According to Section 424 of the Criminal Procedure Code (CPC), individuals who are aware of the commission of, or the intention of any other person to commit, any arrestable offence punishable under Chapter XVI of the Penal Code, needs to report this to the police. Section 377A is under Chapter XVI of the Penal Code.

On November 13, when the first challenge to Section 377A was heard in High Court, the lawyers fighting for its repeal argued that the law’s original aim was to prevent the proliferation of male prostitution, and it was not targeted against sexual acts between males that are private and mutually consensual.

Furthermore, the lawyers also argued that Section 377A had not been aimed at deeming penetrative sex a criminal act. This, they say, had been covered already under Section 377, which had been repealed 12 years ago.

The first case to challenge Section 377A was filed by the former executive director of Oogachaga, Choong Chee Hong, also known as Bryan Choong. Oogachaga, is a lesbian, gay, bisexual and transgender (LGBT) non-profit organisation.

The second challenge, which was also heard in court on Monday, November 18. It was filed by disc jockey Johnson Ong Ming, who was represented by Eugene Thuraisingam, Suang Wijaya and Johannes Hadi of Eugene Thuraisingam LLP.

Lawyers for Mr Ong argued that sexual orientation is the result of environmental and genetic factors, and therefore cannot be willfully changed. -/TISG

Read also: Section 377A was originally meant to curb male prostitution, lawyers challenge provision

Section 377A was originally meant to curb male prostitution, lawyers challenge provision