Sunday, 26 August 2012

Section 377A of the Penal Code

Aug 25, 2012


Constitutional cases 'rare'

A Court of Appeal decision this week to allow a claim challenging the constitutionality of the law criminalising sex between men to be heard in court has sparked much debate on the issue. Two legal experts give their views.

By goh chin lian

SENIOR Counsel Alvin Yeo is an MP for Chua Chu Kang GRC and a member of the Government Parliamentary Committee for Home Affairs and Law.

What do you think of the case being heard in court, and what are the key issues?

The key issue before the court was whether the plaintiff's contention - that Section 377A of the Penal Code is unconstitutional - is so unarguable that the case should be struck out even without a full hearing on the merits.

Within that key issue are a number of sub-issues, including whether the plaintiff had locus standi (or the legal standing) to bring this claim.

This was an issue as the original charge under Section 377A against the plaintiff was amended to come under a different section of the Penal Code, and the plaintiff subsequently pleaded guilty to the amended charge.

How significant is this application?

The significance arises from the fact that constitutional cases are relatively rare.

However, it should be borne in mind that the challenge has not succeeded - the plaintiff is simply being allowed to bring his case forward, as opposed to having been dismissed summarily.

How would you compare this case with the debate over the review of the Penal Code in 2007, when Section 377A was retained?

The issues in this case arise in a different context from the parliamentary debate in 2007 over the amendments to the Penal Code.

Then, the arguments were in relation to whether Parliament should maintain the criminalisation of homosexual acts between consenting adults, for a host of sociopolitical and also moral reasons.

Here, the arguments are in the narrower context of whether the section offends the constitutional provision of equal treatment under the law.

The subject of the debate is the same Section 377A, but the issue is within a somewhat narrower, legalistic framework.

[This should be interesting. Certainly, the criminalising of (consensual) gay sex is hard to justify in a contemporary, secular, and developed society (which leads one so question if we are as secular - or developed - as we claim or think we are). But the issue has been debated in Parliament, and Parliament compromised by leaving in s377A, but operationally, the police were not supposed to actively pursue arrests and prosecution of such "crimes".

However, with this constitutional question, the courts are being used to question and possibly overturn Parliament's decision. The traditionalists or conservatives who support the retention of s377A may well be uncomfortable with this role of the courts. At the same time the more progressive democrats may well see this civil activism and healthy development of democracy in action in Singapore.

It can only be good for Singapore.]

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