SINGAPORE: The High Court is set to hear whether a
section of the law which criminalises gay sex is unconstitutional.
This follows a ruling by the Court of Appeal on Tuesday on a bid by
Tan Eng Hong to have Section 377A of the Penal Code declared
unconstitutional.
This section of the law states that a man who
commits any act of gross indecency with another man shall be
punished.
Tuesday's ruling overturns an earlier High Court
decision, which had upheld the move by the assistant registrar to
strike out the application.
Tan was arrested for having oral sex with another man at a public
toilet in CityLink Mall on March 9, 2010.
He applied to have 377A of the Penal Code declared unconstitutional
for, among other things, violating his right to personal
liberty.
The charge against Tan was changed to a different section of the
Penal Code - Section 294(a) - on October 15, 2010, to state that he
had committed an obscene act in a public place.
Tan, and his partner, subsequently pleaded guilty to the amended
charge. Each was fined S$3,000.
However, in the midst of the case, and before Tan and his partner
pleaded guilty, the Attorney-General moved to strike out Tan's
application to have 377A declared unconstitutional.
On December 7, 2010, the assistant registrar struck out Tan's case
on the grounds that it was, among other things, an abuse of court
process.
Tan appealed to the High Court but the appeal was dismissed as the
judge ruled that there was no real controversy to be decided. This
stemmed from the fact that Tan had already pleaded guilty to and
was convicted of a different charge.
Tan then took his case to the Court of Appeal, which disagreed with
the High Court ruling. It ruled that Tan has a right to apply to
pursue the constitutional challenge.
The Court of Appeal, presided by Judge of Appeal Andrew Phang,
Judge of Appeal V K Rajah and Justice Judith Prakash, said in a
106-page judgement that they found an arguable case on the
constitutionality of Section 377A that ought to be heard in the
High Court.
They explained that Tan was at the outset arrested, investigated,
detained and charged exclusively under Section 377A. This, they
said, squarely raises the issue as to whether Tan's initial
detention and prosecution were in accordance with the law.
Secondly, there is a real and credible threat of prosecution under
Section 377A.
Based on these two points, the judges said there is a real
controversy to be decided. They said Tan will be allowed to
vindicate his rights before the courts based on a finding that
there is an arguable violation of his constitutional rights.
"The principle of access to justice calls for nothing less," the
judges said in their document.
The judges also wanted to acknowledge that Section 377A in its
current form extends to private consensual sexual conduct between
adult males, adding that "this provision affects the lives of a not
insignificant portion of our community in a very real and intimate
way."
"The constitutionality or otherwise of Section 377A is thus of real
public interest. We also note that Section 377A has other effects
beyond criminal sanctions," the judges said.
Tan's lawyer, M Ravi, told Channel NewsAsia that his client will be
pursuing his case.
-CNA/ac