LGBT activist seeks court order for Bill on repealing law on gay sex

Dr Roy Tan Seng Kee is also seeking a declaration that Section 377A is incongruous and inconsistent with various other laws.
Dr Roy Tan Seng Kee is also seeking a declaration that Section 377A is incongruous and inconsistent with various other laws.PHOTO: ROY TAN

A lesbian, gay, bisexual and transgender (LGBT) rights activist has applied to the High Court for a mandatory order for Cabinet to move a Bill in Parliament to abolish the law that criminalises sex between men.

In another attempt to repeal Section 377A of the Penal Code, Dr Roy Tan Seng Kee, 62, argued that the Attorney-General's position on the non-enforcement of Section 377A renders the law otiose, meaning it is useless and serves no practical purpose.

The retired general practitioner said in a statement on Thursday that Section 377A had become a "dead letter" - an obsolete law that has outlived its relevance - and its retention is unlawful, given the Government's decision not to enforce it.

Under the Supreme Court of Judicature Act, the High Court can issue "any person or authority any direction, order or writ for the enforcement of any right conferred by any written law or for any other purpose".

In applying for a mandatory order, applicants can also ask the court to make a declaration, or a statement of the court's authoritative opinion on a matter.

According to court documents filed by lawyer M. Ravi, Dr Tan is also seeking a declaration that Section 377A is incongruous and inconsistent with various other laws.

Dr Tan had filed a constitutional challenge against Section 377A last year, arguing, among other things, that the Government's stance on not enforcing Section 377A was incompatible with Sections 17 and 424 of the Criminal Procedure Code.

Section 17 requires the police to unconditionally investigate all complaints of suspected arrestable offences, while Section 424 makes it compulsory for anyone who is aware of any possible commission of a crime to inform the police of it.

Justice See Kee Oon dismissed Dr Tan's case in March this year, along with two other cases filed in 2018.

In a judgment released in March, Justice See said some of Dr Tan's arguments had taken issue with the enforcement of the law, not its constitutionality.

He noted that these issues were separate and distinct, and that the manner in which a provision was enforced, even if arbitrary, could not in itself render the provision unconstitutional.

"The appropriate recourse in such a situation would be to seek administrative review, not constitutional review," the judge said.

The Attorney-General's Chambers, the respondent in all three previous challenges, had argued that the question of whether to repeal Section 377A is a "deeply divisive socio-political issue" which should be decided by Parliament, not the judiciary.

Dr Tan is now hoping to have the matter considered in Parliament.

He noted that Section 9A (1) of the Interpretation Act requires the courts to interpret a written law in a way that promotes the purpose or object underlying that law.

"Parliament's undertaking not to proactively enforce Section 377A renders the courts unable to perform their legal obligation," Dr Tan said. He added that he will draw on recent precedents in British common law to support his case.

A version of this article appeared in the print edition of The Straits Times on December 05, 2020, with the headline 'LGBT activist seeks court order for Bill on repealing law on gay sex'. Subscribe