SINGAPORE: Former Chief Justice Chan Sek Keong has called for the constitutional validity of Section 377A, which criminalises sexual acts between men, to be reviewed.

He made the call in a paper titled Equal Justice under the Constitution and Section 377A of the Penal Code which was published online by the Singapore Academy of Law Journal on Monday (Oct 14).



In his paper, Mr Chan notes that Section 377A criminalises acts of gross indecency between males, whether homosexual or bisexual, but not similar acts between males and females, or between females.

He asked whether such unequal treatment violated the fundamental rights of all to equality before the law and equal protection under the law, as provided for under Article 12(1) of the Constitution.

Laws differentiating based on sex or gender must have a rational basis, he said, giving the example of Parliament hypothetically passing a law against women smoking cigars.

“If Parliament bans women, but not men, from smoking cigars, equality of all persons under Article 12(1) requires the state to justify the reasonableness of the ban,” said Mr Chan.



This could be done on health grounds, if medical research showed women were more prone to lung cancer than men, for example.

However, if this were based on Parliament finding women smoking cigars undignified or unseemly, the courts would have to consider whether such a reason was legitimate, he argued.

Citing the case of Lim Meng Suang - who launched a legal bid against the constitutionality of Section 377A in 2013 - Mr Chan noted the judge at the time had upheld the law on the grounds that its purpose was to criminalise male homosexual conduct, as such behaviour was not acceptable or desirable here.

However, the former Chief Justice noted that Section 377A was in fact enacted in 1938 to strengthen laws against male prostitution, which was “rife” according to crime reports at the time and posed serious problems to law and order, public morality and wholesome government.

“Section 377A was enacted for this purpose, and not because male homosexuality per se was unacceptable in Singapore society,” he said.

The law, he argued, was a product of specific social conditions that have long ceased to exist here.

Mr Chan described Section 377A as an outlier in Singapore’s criminal law regime, and the “only genuine gender-specific offence in our criminal laws”.

GOVERNMENT SEES NO “LEGITIMATE STATE PURPOSE” IN ENFORCEMENT

While Section 377 – under which “carnal intercourse against the order of nature with any man, woman or animals” was an offence – was repealed in 2007 under amendments to the Penal Code, Section 377A was retained.

The decision not to repeal was based on the “misapprehension” that the section covered penetrative sex, a “hallmark of male homosexuality", he said.

“Parliament reaffirmed the wrong purpose,” he added.

Furthermore, the decision not to repeal Section 377A did not affirm its purpose, said Mr Chan.

He noted MPs at the time were not asked to vote on it as the Government had already decided “well before the parliamentary sitting that it would not repeal Section 377A, but at the same time not enforce it”.

The decision not to enforce Section 377A with respect to consensual male penetrative sex in private can be seen as a repudiation of its legitimacy, he said, adding it implies the Government sees no “legitimate state purpose” in criminalising or prosecuting male homosexual conduct.

“The 1938 purpose became invalid in the eyes of the Government in 2007,” he stated.

The court must interpret Section 377A in a way that does not violate the Constitution, which depends on the nature of its inconsistency with Article 12(1), said Mr Chan.

If the original purpose of Section 377A no longer exists, it can be construed to conform to the Constitution by reading it as a “gender-neutral provision that criminalises non-penetrative sex of gross indecency committed in public”, he added.

COURT CHALLENGES TO 377A TO BE HEARD IN NOVEMBER

The views of Mr Chan, who served as attorney-general (AG) between 1992 and 2006 – together with those of other former AGs such as V K Rajah and Walter Woon, as well as current Deputy AG Hri Kumar Nair – are being cited by lesbian, gay, bisexual and transgender (LGBT) rights activist Roy Tan, who filed a challenge against the constitutionality of Section 377A in court in September.

Dr Tan, a retired general practitioner who helped organise the first Pink Dot event in 2009, is one of three people who have filed court challenges against Section 377A since last year.

The other two are disc jockey Mr Johnson Ong Ming and Mr Bryan Choong, former executive director of LGBT non-profit organisation Oogachaga.

All three cases will be heard in court in November.

