Judges hear appeal on dismissal of cases against Section 377A

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 yesterday 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 an activist for lesbian, gay, bisexual and transgender (LGBT) rights; Mr Johnson Ong Ming, a disc jockey; and Mr Bryan Choong, 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 only sex acts between gay men, but not acts between lesbians 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 panel, which includes Justices Andrew Phang, Judith Prakash, Tay Yong Kwang and Steven Chong, 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In 2007, after a heated parliamentary debate over whether Section 377A should be repealed, the law remained, but the Government said it will not be enforced.

Prime Minister Lee Hsien Loong said then that the status quo must remain, despite the "legal untidiness and ambiguity".

Yesterday, Mr Choong's lawyers, Senior Counsel Harpreet Singh Nehal and Mr Jordan Tan, said men are 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.

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 the law, a person who is aware of an 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 should be decided by Parliament. She said scientific evidence on sexual orientation remains inconclusive.

During the hearing, the Chief Justice noted that the 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.