Singapore Court of Appeal: "Continued existence of s377A causes gay men to be unapprehended felons"

Published: August 21, 2012

Singapore’s Court of Appeal today overturned High Court judge Lai Siu Chiu’s decision on 15 March 2011 when she ruled that there was no "real controversy" which required the court’s attention – meaning that it was not a matter of importance to be decided by a court.

M RaviHowever at the time she agreed that Tan did have locus standi – meaning he is affected by this law to have a legitimate interest or standing in the issue.

The challenge was filed by Tan, who was first charged under section 377A for having oral sex with another consenting male in a public toilet in a shopping mall. On 24 September 2010, M Ravi, acting for Tan, filed an Originating Summons challenging the constitutionality of this law. Mid-October, the Attorney-General’s Chambers (AGC) withdrew the 377A charges, substituting charges under Section 294 (obscene act in public) instead. Tan was later fined S$3,000 for committing an obscene act in public.

In a 102-page judgment released today, the bench comprising Judges of Appeal Andrew Phang, V K Rajah and Judith Prakesh, said that as the current law extends to private consensual sexual conduct between adult males, it "affects the lives of a not insignificant portion of our community in a very real and intimate way".

“We are unable to agree with the AG that violations of constitutional rights only occur when a person is prosecuted under an allegedly unconstitutional law. It is clear that violations of constitutional rights may occur earlier, viz, when an accused is arrested and detained under an allegedly unconstitutional law. When a person is arrested and detained, he is deprived of his Art 9(1) right to personal liberty. However, if such deprivation is done "in accordance with law”, there is no breach of Art 9(1). For ease of reading, Art 9(1) is reproduced as follows: No person shall be deprived of his life or personal liberty save in accordance with law. [emphasis added].” (Page 81)

The court says it affirmed Tan to have standing and it found of the existence of a real controversy to be determined in this case arising from a combination of two factors: Tan was at the outset arrested, investigated, detained and charged exclusively under s 377A and secondly, there’s a real and credible threat of prosecution under s 377A.

In conclusion, the court said in the judgment: "We thus allow the present appeal and grant Tan leave to amend the Application to include a prayer that he ought not to have been arrested, investigated, detained and charged under s 377A as well as to make the appropriate references to Art 162 for the sake of completeness. We hold that Tan has standing to pursue his claim for declaratory relief subject to the requisite amendments to the Application being made. For the avoidance of any doubt, we reiterate (see also above at, inter alia; [3] and [127]) that we are not deciding here that s 377A is inconsistent with Art 12 as that goes to the merits of the Application. We are merely deciding that it is arguably so, which suffices for the present appeal on the preliminary issue of whether the Application should be struck out.” (Page 101)

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