SINGAPORE - Chief Justice Sundaresh Menon said the "political compromise" struck by the Government in 2007 - to keep Section 377A of the Penal Code but not enforce it - should be a factor in determining whether the law, which criminalises sex between men, passes muster.
The Chief Justice made the point repeatedly on Monday (Jan 25) in the course of arguments on the constitutionality of Section 377A. Three men who separately challenged the law were appealing to a five-judge panel against a High Court decision last year to dismiss their cases.
The trio are Dr Roy Tan Seng Kee, a retired general practitioner and activist for lesbian, gay, bisexual and transgender (LGBT) rights; Mr Johnson Ong Ming, a disc jockey; and Mr Bryan Choong, the former executive director of LGBT non-profit organisation Oogachaga.
They contended that Section 377A, which was enacted in 1938, should be struck down as it violates Article 12 of the Constitution, which guarantees equality before the law.
They argued that the law criminalises sex acts only between homosexual men, but not acts between homosexual women or heterosexuals.
The provision makes it a crime for a man, whether in public or in private, to commit any act of "gross indecency" with another man, and carries a jail term of up to two years.
The court, which also comprised Justices Andrew Phang, Judith Prakash, Tay Yong Kwang and Steven Chong, reserved judgment and will give its decision at a later date.
In 2007, after a heated parliamentary debate over whether Section 377A should be repealed, the law remained on the books, but the Government said it will not be enforced.
Prime Minister Lee Hsien Loong said then that status quo must remain despite the "legal untidiness and ambiguity".
On Monday, Mr Choong's lawyers, Senior Counsel Harpreet Singh Nehal and Mr Jordan Tan, said men were being treated unequally because women cannot be punished for acts of gross indecency.
Mr Ong's lawyer, Mr Eugene Thuraisingam, argued that it was absurd to criminalise a particular sexual orientation when scientific evidence shows that sexual orientation cannot be voluntarily changed.
He argued that Section 377A was arbitrary as it targets gay men, even though the object of retaining the law in 2007 was to reflect societal disapproval of homosexual conduct in general.
Dr Tan's lawyer, Mr M. Ravi, said the ambiguity inherent in Section 377A creates uncertainty as to how other criminal provisions should be construed.
For example, under Section 424 of the Criminal Procedure Code, a person who is aware of another person's offence has to report it to the police. Mr Ravi said it is unclear if gay men will be prosecuted for failing to report homosexual activity.
State Counsel Kristy Tan said the highly divisive issue of whether to decriminalise male homosexual sex acts should be decided by Parliament.
She said scientific evidence on sexual orientation remains inconclusive and the court was not the appropriate forum to settle the matter.
She argued that although Section 377A only covers men, this distinction was rational as the purpose of the provision in 1938 was to express society's views about sex acts between men.
During the hearing, Chief Justice Menon noted that the legislative act of retaining Section 377A and the undertaking by the Government not to enforce the law has to be factored into the equation.
"In assessing the constitutionality of 377A today, you have to look at the total package," he said at one point.
Mr Singh argued that constitutionality ought to be assessed independently of the undertaking, which he said will not be binding on future governments.
He also made the alternative argument that if the words "in private" were removed from the provision, it would give practical effect to the bargain struck in 2007.