Court of Appeal rules that Section 377A that criminalises sex between men is constitutional

The highest court in Singapore has ruled that Section 377A of the Penal Code, which criminalises sex between men, is constitutional. -- PHOTO: NEW PAPER FILE
The highest court in Singapore has ruled that Section 377A of the Penal Code, which criminalises sex between men, is constitutional. -- PHOTO: NEW PAPER FILE

SINGAPORE - The highest court in Singapore has upheld Section 377A of the Penal Code, the law that criminalises sex between men, rejecting arguments that the provision contravenes the Constitution.

In ruling that the provision is constitutional, the three-judge Court of Appeal on Wedesday rejected two separate challenges to strike down the law.

Gay couple Gary Lim, 46, and Kenneth Chee, 38, as well as 51-year-old Tan Eng Hong, contend that the provision is discriminatory and should be declared void by the court.

Their argument is that Section 377A infringes their right to equal protection under the law, as guaranteed by Article 12 of the Constitution, and violates their right to life and liberty, as guaranteed by Article 9.

The offence carries up to a two-year jail term for men who, in public or private, commit acts of "gross indecency" with other men. Mr Tan was the first to file a challenge against the statute in 2010 after he was charged with having oral sex with another man in a public toilet. Mr Lim and Mr Chee later filed their own challenge.

Their cases were separately heard - and dismissed - by High Court Judge Quentin Loh last year. Their appeals were heard together in July this year.

On Wednesday, in a 101-page written judgment delivered by Judge of Appeal Andrew Phang, the apex court rejected their arguments.

The court held that Section 377A did not violate Article 9 as the phrase "life and liberty" referred only to the personal liberty of a person from unlawful incarceration and not to the right of privacy and personal autonomy.

As for Article 12, the court held that Section 377A passed a classification test used by the courts in determining whether a law complies with the constitutional right of equality.

The court also ruled that Section 377A fell outside the scope of Article 12, which forbids discrimination of citizens on grounds including religion, race and place of birth. The court observed that Article 12 did not contain the words "gender", "sex" and "sexual orientation", which related to Section 377A.

The court added that many of the arguments canvassed in the case involved "extra-legal considerations and matters of social policy outside the remit of the court".

The court stressed that it can only consider legal arguments; taking on legislative functions would "efface" the very separation of powers which gives the court its legitimacy in the first place.

"Whilst we understand the deeply-held personal feelings of the appellants, there is nothing that this court can do to assist them. Their remedy lies, if at all, in the legislative sphere," said the court.

Activist lawyer M. Ravi, who acts for Mr Tan, called the decision a "huge step backwards for human rights in Singapore". He said it was "disturbing" that the court has "thrown this issue back to Parliament".

selinal@sph.com.sg