Parliament, not the courts, should decide whether to repeal Section 377A: AGC

A photo taken on June 29 shows the Pink Dot SG event at Hong Lim Park, with attendees holding up pink and white lights to form a display calling for the repeal of Section 377A. PHOTO: ST FILE

SINGAPORE - The question of whether or not to repeal Section 377A of the Penal Code is a deeply divisive socio-political issue that should be decided by Parliament, not the judiciary, the Attorney-General's Chambers (AGC) has said.

In presenting its arguments in response to three cases now before the High Court challenging the constitutionality of Section 377A, the AGC noted that this was the same position adopted by the Court of Appeal in 2014.

In a 124-page written submission seen by The Straits Times on Wednesday, the AGC noted that in 2014, the Court of Appeal had dismissed a similar challenge.

It ruled then that the law, which criminalises acts of "gross indecency" between men, is consistent with the Constitution of Singapore.

The AGC said in its submission that the High Court is bound to follow the decisions of the Court of Appeal, which is the highest court in Singapore, and should therefore dismiss the three recent cases.

This was a key point presented by AGC's lawyers, Deputy Chief Counsel Hui Choon Kuen, Deputy Senior State Counsels Denise Wong and Jeremy Yeo, and State Counsel Jamie Pang, who concluded their submissions at the High Court on Wednesday (Nov 20).

In a media statement after the proceedings, the AGC said it has fully responded to the arguments raised by the applicants and will leave the court to make its decision.

The three cases for the repeal of Section 377A, brought by lesbian, gay, bisexual and transgender (LGBT) non-profit Oogachaga's former executive director Bryan Choong Chee Hong, disc jockey Johnson Ong Ming and LGBT activist and retired GP Roy Tan Seng Kee, were heard by Justice See Kee Oon in chambers last week and on Monday.

In its written submissions, the AGC said that the role of the courts is to apply the law, not to determine social policy.

It also noted that in other major jurisdictions such as Britain and Hong Kong where laws similar to Section 377A have been abolished, this was done by the legislature.

A repeal of Section 377A would involve complex social and political considerations.

These include religious sensitivities, conservative views on family and non-religious or non-traditional views that need to be finely balanced.

Parliament, which deals with complex socio-political matters, is better placed to handle such issues compared to the judiciary, which is constrained by more restrictive procedures, the AGC said.

It noted that the courts can only receive information that satisfies the rules of admission of evidence, but Parliament can consider information that does not, such as public sentiments.

Parliament would also be able to implement "change management" if it decides to repeal the law, such as engaging relevant communities and their leaders to explain the rationale for the change and assuage any unfounded concerns.

The AGC also stressed that foreign rulings, such as the Indian Supreme Court's decision to strike down a similar law last year, are irrelevant as Singapore has different laws.

The Singapore Constitution, for example, does not set out rights to human dignity, sexual identity or privacy. It also does not prohibit discrimination on the grounds of sex or sexual orientation, the AGC said.

In its statement to the media, the AGC also addressed a point raised by one of the applicants.

On Monday, Mr M. Ravi of Carson Law Chambers, who represents Dr Roy Tan Seng Kee, had argued that other laws such as Section 424 of the Criminal Procedure Code (CPC) make it legally obligatory for anyone to report those who violate Section 377A.

This includes gay men themselves, their friends or family members, and their medical care providers.

Parliament's stance that Section 377A will not be proactively enforced leads to "an inconsistent and arbitrary application of criminal procedure", Mr Ravi had argued.

It is also incongruous with the mandatory obligation under Section 424 of the CPC, he said.

The AGC said in its statement: "The Attorney-General has already stated that where the conduct in question was between two consenting adults in a private place, the Public Prosecutor's position is that, absent other factors, prosecution under s 377A would not be in the public interest.

"It would naturally follow from this position that any prosecution under other provisions which would contradict the non-prosecution position of s 377A would likewise not be in the public interest."

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