The Constitutionality Of Section 377A In High Court

[groyn88]

It hasn't started yet. It's next Tuesday, 27 September 2011.

If you're free in the morning, why not turn up at the Court of Appeal to give M. Ravi and his client your support.

You'll be witnessing gay history in the making.

Cheers,

Roy.

[Guest guest]

sorry if that idoit Tan is representing .i not keen to support. go find out his background first before u use him to represent us.

[Guest rape]

It says a lot about Singaporeans in general, that when the law for oral sex and anal sex was changed from illegal to legal with certain clauses that nobody and nobody stood up and say that it was unfair and unequal to make oral sex and anal sex okay for heterosexual couples but it was still kept illegal if two guys decided they wanted to do it together consentually in a private setting.

People just care for their own rice bowl.

[suckling_pig]

It says a lot about Singaporeans in general, that when the law for oral sex and anal sex was changed from illegal to legal with certain clauses that nobody and nobody stood up and say that it was unfair and unequal to make oral sex and anal sex okay for heterosexual couples but it was still kept illegal if two guys decided they wanted to do it together consentually in a private setting.

People just care for their own rice bowl.

As a Singaporean myself, it pains me to agree with you.

Sometimes when things like this outrage me, I seriously wonder why I stay on in Singapore. In recent travels I have paid particular attention to the immigration policies of other countries. If one looks seriously, it is really quite easy to emigrate. For the most immigration friendly countries, just go look at the Canadian and New Zealand immigration criteria. They are not extremely high and I think a good proportion of the Singapore population can emigrate to these countries if they really wanted to.

But then again, how do we measure ourselves? Do we do only the easy things? Emigrate because of 377A ? Then we are no better than the guys who keep quiet because they don't want to endanger their own rice bowls.

Fortunately I can take heart because I can feel things beginning to change. The ruling party hegemony is slowly but surely being eroded. The tipping point I feel will be when the founding father passes away. Then the last of the (some say misplaced) gratitude will be replaced by a real soul searching of the populace. Instead of blindly accepting that the gahmen knows best, and grumbling in the shadows when their own toes are stepped on, they will start to assert themselves a little more.

Edited September 22, 2011 by suckling_pig

[Guest Ian]

people on the blood donation thread is saying MSM =/= gay, this is also used by Singapore representatives at the UPR.

I dunno, maybe if they repeat this again we would not get a repeal at all. your thoughts?

[groyn88]

MSM is a behavioural definition. It includes homosexuals, bisexuals and even straight men who have sex with other men. "Gay" is self-affixed social identity. Some homosexuals do not self-identify as "gay".

Cheers,

Roy.

[Guest Ian]

MSM is a behavioural definition. It includes homosexuals, bisexuals and even straight men who have sex with other men. "Gay" is self-affixed social identity. Some homosexuals do not self-identify as "gay".

Cheers,

Roy.

And how do the 'gay' card comes in? Are we only fighting with freedom of expression/choice?

[groyn88]

No, we are fighting on the basis of discrimination.

377A is unfair. It discriminates against MSMs and renders them unequal in the eyes of the law.

It therefore violates article 12 of the Constitution and should be struck down.

Cheers,

Roy.

[Guest IamPineapple]

In a nutshell, what is this 377A about?

If 377A is repealed - we can have gay sex in saunas, and our bedrooms without fear that that cops will burst in and arrest us. Toilet sex will still be an offence under other laws

If 377A is retained and actively applied - You can be prosecuted for sex with your LTR and monogamous partner in your own bedroom. It will be an offence to be who you already are.

Come to think of it... if the S377A is retained, then Kumar and those famous people who admit they are gays will be put out of job and sent to jail... <correct me if i'm wrong>

[Jaded]

Come to think of it... if the S377A is retained, then Kumar and those famous people who admit they are gays will be put out of job and sent to jail... <correct me if i'm wrong>

No as long as they don't engage in oral or anal sex... lolz...

[groyn88]

Just to inform everyone, the government has NOT kept its promise not to use 377A.

At the end of last year, there were 2 cases of police entrapment using good-looking police decoys. The men who took the bait and touched them were charged with 377A and sent to jail.

377A is also being used by the police to charge men having sex in private. M. Ravi has a case whereby an NS man who went for a massage was asked by the masseur whether he wanted a "special service". He thought a while about it before saying, "Yes". He was then given a hand job.

He went home and thought that another man masturbating him was an insult to his masculinity, so he made a police report that the masseur masturbated him.

The police intend to charge the masseur under 377A.

Apart from this, there are also many cases of private sex which are being handled by other lawyers.

Therefore, 377A has got to go.

Please support M. Ravi's constitutional challenge by turning up at the Court of Appeal at 10 a.m. this coming Tuesday, 27th September.

Thanks,

Roy.

Edited September 25, 2011 by groyn88

[Guest Guest]

Please let us know the dress code. Thanks.

[Guest Guest]

No as long as they don't engage in oral or anal sex... lolz...

Don't engage in oral or anal sex when you are a gay? I think you better be a monk.

[Clickclock]

I am seriously disappointed, i mean, this is a shining, bright, brilliant notion that is being attempted at this very time, the appeal to remove 377A, the very rule that makes us gay men criminals and yet there isnt much hoo hah in the social media, let alone this forum.

this act deserves to have more people being aware about it.

[Guest jayy]

377A is also being used by the police to charge men having sex in private. M. Ravi has a case whereby an NS man who went for a massage was asked by the masseur whether he wanted a "special service". He thought a while about it before saying, "Yes". He was then given a hand job.

He went home and thought that another man masturbating him was an insult to his masculinity, so he made a police report that the masseur masturbated him.

The police intend to charge the masseur under 377A.

Wow, this is utter bullshit. How come the guy who willingly accepted the handjob walks away scot-free? Isn't he just as 'guilty'?

[groyn88]

He claimed that the masseur pressurised him into receiving the hand job.

It just goes to show that with 377A in existence, MSMs who have sex even in private are vulnerable to blackmail, extortion and false accusations.

Please support M. Ravi's constitutional challenge and attend the hearing this Tuesday at the Court of Appeal at 10 a.m.

These are some pointers for those intending to attend:

The venue is the Court of Appeal on level 9 of the new Supreme Court building, the one topped with a "flying saucer" and built on the site of the former Colombo Court building.

Please bring along your IC. You have to clear a security check at the entrance in order to get in. Also, the Supreme Court has a dress code - no jeans, berms, slippers, T-shirts, etc. Formal attire is recommended, but there is no need to wear a suit. Try to get there at least half-an-hour before the hearing to get a good seat because the Attorney-General and related legal staff tend to hog the front rows.

The proceedings are expected to last at the most 2 hours. It should be a wrap before lunchtime. Latecomers will be admitted subject to the availability of seats.

Thanks,

Roy Tan.

[Jaded]

Ya... seriously, I'm so surprised by the sheer level of nonchalance among our own community when it comes to 377A. If we don't advocate for ourselves, who else is going to help us?

[Guest IamPineapple]

Come to think of it... if the S377A is retained, then Kumar and those famous people who admit they are gays will be put out of job and sent to jail... <correct me if i'm wrong>

No as long as they don't engage in oral or anal sex... lolz...

Haha I see... yeah if your a gay, and you don't engage in Oral or/and Anal sex, then what's the definition of gay... right...

PS: out of topic, Jaded, you do look like one of my SGT when i was in the army... haha

Edited September 25, 2011 by IamPineapple

[Guest Guest]

PS: out of topic, Jaded, you do look like one of my SGT when i was in the army... haha

Maybe he is

[Guest Benjy]

The point is not the exact facts surrounding what Tan Eng Hong did. There are other laws that can be used to prosecute him for that (e.g. public decency laws). Instead, this appeal is about s377A in general.

[groyn88]

That's right! To prosecute someone for public sex, Section 294 can be used. It is non-discriminatory in that it can be used to charge straight couples as well as gay ones.

Section 377A specifically refers to sex between men and is therefore discriminatory.

It contravenes Article 12 of the Constitution and should be struck down.

Please support M. Ravi in his constitutional challenge by attending the hearing at the Court of Appeal tomorrow, Tuesday, at 10 a.m.

Thanks,

Roy Tan.

[suckling_pig]

I just attended the hearing. You should have been there. It was better than watching 10 episodes of Project Runway!

Today I am very encouraged by what I witnessed with regard to 377A and the independence of the judiciary as a whole. I am not a lawyer, but will try to describe it as briefly as possible according to how it relates to the gay community:

Pertaining to Tan Eng Hong's case specifically

Basically Tan Eng Hong has already pleaded guilty to Section 294 which is a public nuisance act. It does not discriminate between heterosexuals and homosexuals, so there is no controversy here. BWers have already accepted that he should be charged according to this. He has been convicted of this offence in a lower court. However before he was charged with Section 294, he was charged with 377A (this is the discriminatory "anti-gay" law). This charge was subsequently substituted with 294 because Tan Eng Hong / Ravi challenged it. As Tan Eng Hong has already been convicted of Section 294, he has nothing personally to gain by challenging 377A. While I accept that Tan Eng Hong erred in participating in toilet sex, I must commend him for his courage to challenge 377A and to further the cause of the gay community.

Challenge on 377A

The main thrust of Ravi's argument was that a sizeable segment of the population (GLBT) continues to be threatened by a law that (he argues) is unconstitutional. Tan Eng Hong's case is really only a vehicle for him to challenge the validity of 377A. There are other details that I will not mention for the sake of brevity.

Leaning of the Court of Appeal

The tribunal was unanimously sympathetic with Ravi's argument and while clarifying the prosecutions' arguments showed that they found little merit in their argument not to let the case be brought into a full hearing. They genuinely seemed concerned about the infringement of the rights of the gay community.

Judgement

The tribunal gave a open verdict/ruling - I believe this means they have not made a decision whether to allow a full hearing of the challenge against the constitutionality of 377A. My personal hunch is that there is a 80% chance that it will go through

The future

A full hearing and the real crunch point on whether 377A will be ruled unconstitutional and therefore invalid. If it is successful, this will mean formal repeal of 377A.

The independence of the Judiciary

I don't know about other cases, especially high stakes politically linked defamation suits, but the Court of Appeal really appeared to be independent here. This came as a big surprise to me as all my life I have been brought up with coffeeshop grumbling and accusations about a docile judiciary.

But then again conspiracy theory inclined people might say that the judiciary is actually encouraged to repeal 377A to further the cause of a elected government that does not want to overtly offend the Christian right by repealing it through the legislature. I can't say which is really the case, but in either case, at least it will give the community a small victory in our sad history of oppression.

The weather outside may be a sweltering 33 degrees, but to me it is a beautiful day.

Edited September 27, 2011 by suckling_pig

[groyn88]

Thanks for the report, Suckling Pig.

Just to clarify, if 377A is found to be unconstitutional, it will be "struck down" and NOT repealed. There is a difference.

When a law is struck down, it remains on the statute books but cannot be used to charge anyone. With a repeal, the law is removed completely.

However, the final and practical effects of both procedures are the same.

The official judgement will be released in about a month's time. Meanwhile, you can read Ng Yi-Sheng's report on the proceedings and his interview with M. Ravi on Fridae, to be published shortly.

On behalf of M. Ravi and his client, I would like to thank everyone who turned up at the Court of Appeal to support them.

Cheers,

Roy.

Edited September 27, 2011 by groyn88

[suckling_pig]

Thanks Roy,

Like I said, I'm not a lawyer ! :oops: , But I learn something new everyday.

Please can you keep us informed of the ruling, I believe there are many in BW who are interested in the outcome of the case.

SP

[suckling_pig]

Actually, the gay community owes M. Ravi a debt of gratitude for taking up the case and pursuing it with such vigour.

Please can you convey our compliments to him for us.

Edited September 27, 2011 by suckling_pig

[Guest Supporters]

Thanks to Suckling Pig and Roy for the updates. Appreciate the time you guys took. Thanks to Ravi and Tan too.

[groyn88]

@Suckling Pig: Yes, I am surprised that there has been so much apathy regarding the constitutional challenge, even from the LGBT community.

When M. Ravi organised a public forum late last year to engage the gay community for the upcoming court battles, hardly anyone turned up, even Fridae and the majority of the gay activists in Singapore.

Fortunately, I was one of the few who were there and I videoed the entire forum, the footage of which is probably now of historic importance, but still too sensitive to release as it contains an impassioned speech by a prominent political figure.

The final showdown will be in the High Court where the constitutional challenge will finally be heard, now that it is almost all systems go!

Cheers,

Roy.

Edited September 27, 2011 by groyn88

[Guest Mimosa]

@Suckling Pig: Yes, I am surprised that there has been so much apathy regarding the constitutional challenge, even from the LGBT community. When M. Ravi organised a public forum late last year to engage the gay community for the upcoming court battles, hardly anyone turned up, even Fridae and the majority of the gay activists in Singapore. Fortunately, I was one of the few who were there and I videoed the entire forum, the footage of which is probably now of historic importance, but still too sensitive to release as it contains an impassioned speech by a prominent political figure. The final showdown will be in the High Court where the constitutional challenge will finally be heard, now that it is almost all systems go! Cheers, Roy.

Some gay people might be too financially poor to bother with academic issue and let the vocal ones take the lead (as guinea pig). The rich one probably have "image" issues if they were to openly become activists. Besides, most gay are rather shy creature and sometimes the forum or talks might appear too distanced and ulu thus transport became another issues, more so on weekday when everyone became tired after work. Unlike other events or gatherings where people can bring home some "skills or joy" such as pinkdot party, activist forum look too dry and academic which include many legality substance suited for the learned ones. So what does it brings home end of the day when laws are already set to discriminate. Gay community todate are still quite segmented like a different clans and some came from conversative background either in family or religion. Thus galavanising a big crowd seemed unsurprisingly challenging unless you have a famous celebrity to take the lead - as in Aware saga and Pinkdot. Other than that, we need to trust the heart of gay people even if their will is physically weak & shy. I still believes the day will come for gay people to move this island when being challenged by the greater force again. I wish to see that happen in this lifetime. Someone has to set a legacy somewhere though not everyone can do it under constraint financially or intellectually.

[superflawless]

this tan eng hong sucked cock in CITY LINK MALL toilet. well, he was fined $3000, well, he shd be fined $30 000 instead of making gays look like sex starved manics in a common place where people go to do business. what point if this M Ravi trying to do? that gays can have sex in shopping center toilets?

You have an idea of what a gay person should do and how he/she should behave. It's all very subjective. Since you can dish it, the here's my opinion of you: While the general population is against us minorities, you choose to sling your stone at a fellow PLU. I am appalled and ashamed of you.

Two consenting males doing this in the toilet; they hurt no one except challenged a flawed law system. I don't know what the country cannot just let them be, express how they want to be, if no harm is done to the general public. However you might feel about this guy, know that he did no one any harm. Your words, on the other hand, has hurt your public persona on this board.

[groyn88]

Those interested can read the arguments M. Ravi used in his case today here:

http://sgwiki.com/wiki/M._Ravi%27s_reply_to_the_Attorney-General%27s_submissions_in_the_Section_377A_constitutional_challenge

Cheers,

Roy.

[Tekongman]

It is a beautiful day for PLU. Hope the ghovernment realise and abolish 377A. On our part, we have to be united and brave the storm together.

Kudos to M Ravi for his great effort to fight for a just cause.

As to lawyer M Ravi, you are in my emergency contact listing.

Tekongman

[Guest Watson law]

No, we are fighting on the basis of discrimination.

377A is unfair. It discriminates against MSMs and renders them unequal in the eyes of the law.

It therefore violates article 12 of the Constitution and should be struck down.

Cheers,

Roy.

This is so basic in law that any lawyer or judge who cannot make the correct case, they don't deserve to practice law. I'll laugh at their hypocrite faces if they use social harmony for excuses to discriminate. Those religious nuts will never be satisfied. We are still fully embroided in religious wars and they cost more than any natural disasters. Have the backbone to standup for being right and stop kowtowing to them.

[groyn88]

Ng Yi-Sheng's report is out on Fridae:

http://www.fridae.asia/newsfeatures/2011/09/27/11214.one-step-closer-to-the-abolition-of-s377a-in-singapore?n=n

Cheers,

Roy.

[Adam]

Thanks to Suckling Pig and Roy for the updates and especially to Ravi and Tan for having the courage to bring this ground breaking case up all the way to the Court of Appeal. :clap: :clap: :clap:

"But then again conspiracy theory inclined people might say that the judiciary is actually encouraged to repeal 377A to further the cause of a elected government that does not want to overtly offend the Christian right by repealing it through the legislature. I can't say which is really the case, but in either case, at least it will give the community a small victory in our sad history of oppression."

In my personal opinion, this might be the win-win situation the government seeks. Attached below is the link to a leaked US diplomatic cable describing the various obstacles the parliament went through in the 2007 parliamentary debate regarding the repeal of 377A.

http://cables.mrkva.eu/cable.php?id=135751

I believe the government wanted to repeal 377A but based on the feedback from the ground - not only the Christians but various other religious groups also opposed it, a full debate took place and they decided to retain 377A. The government knew it was the right thing to do to repeal 377A but a survey showed that two-third of the general population (see attached link) had negative views about homosexuality (expected since this was how we were brought up to view homosexuality), and their hands were tied.

Earlier this year, in Mr Lee Kuan Yew's book "Hard Truths", the issue of homosexuality in Singapore surfaced again. Mr Lee was very much against discrimination of homosexuals but he said it will take time for society accept people like us. Then the general election too place in May. With the PAP back in the government with a huge majority, it was time to re-look at 377A again.

Just a little side track - a few weeks ago, when Kumar came out and announced he was gay at the launch of his biography, "Kumar : From Rags to Drag", Vivian Balakrishnan, Minister for Environment was there. Yes, the same person who during the general election asked if the SDP team challenging him at the Holland - Bukit Timah GRC had a hidden (gay - Vincent Wijeysingha, a SDP candidate had attended a talk by Ravi about repealing 377A) agenda.

The government knew it is about time to remove 377A for a whole variety of reasons but how to do it without incurring the wrath of the public. If they try to repeal the law in parliament, the same arguments from 2007 would still apply. However, if 377A would be ruled unconstitutional, then like Roy said, it would have basically the same effect as repealing it, without having to put all the MPs in a position of explaining to their constituents why are they supporting male to male sodomy.

This is a golden opportunity for Singapore and Singaporeans, whether straights or gays, to remove a law that is blatantly outdated and unjust. This law was introduced by the British when we were their colony. Way back In 1967, England had already repealed this law. It is about time we do so.

My heartfelt thanks also to a large group of people behind the scene (google and you will know who) who over the years had campaigned tirelessly to have this law repealed. :thumb: :thumb: :thumb:

[Jaded]

I'm crossing my fingers, toes and everything else to wait for the final ruling.

When I told my foreign (and some local) friends that there is still such a law existing in Singapore in these days and times, they were all in shock.

World map of LGBT rights: http://ilga.org/map/LGBTI_rights.jpg

Haha I see... yeah if your a gay, and you don't engage in Oral or/and Anal sex, then what's the definition of gay... right... PS: out of topic, Jaded, you do look like one of my SGT when i was in the army... haha

Well, maybe I was hahahaha.

[groyn88]

You may like to read an analysis of M. Ravi's 377A constitutional challenge published a few days ago on Public House:

http://www.publichouse.sg/categories/features/item/105-s377a-do-not-disturb

You can also download M. Ravi's original PDF file of the arguments he used during the recent Court of Appeal hearing here:

http://groyn88.pbworks.com/w/file/46114813/MRaviReplyToAGsSubmissions.pdf

Cheers,

Roy.

Edited September 30, 2011 by groyn88

[groyn88]

TODAY: Good chance Lee Hsien Loong's "inclusive society" will include gays this time

Friday, October 21, 2011

http://www.todayonline.com/Singapore/EDC111021-0000188/We-can-face-the-future-with-confidence,-says-PM-Lee

As usual, I'm putting my optimistic, gay spin into the headlines.

We can read the tea leaves - over the past half-year or so, there has been a media blitz portraying the gay community in glowing terms. Even homophobic ministers like Vivian Balakrishnan and George Yeo have been made to toe the new line by sanctioning Kumar's coming out.

The New Paper is now no longer homophobic, 8 Days is currently publishing its gayest issue ever, i Weekly interviewed Boo Junfeng who spoke highly of Pink Dot, The Straits Times has waxed lyrical over Pink Dot's worldwide spread, TODAY included Pink Dot in it's National Day special, all the homophobic PAP ministers like Lui Tuck Yew and Vivian Balakrishnan have been relegated to non-social portfolios, gay-friendly Michael Palmer is now Speaker of Parliament, gay-friendly Hri Kumar Nair has risen to a position of prominence, Yaacob Ibrahim now heads MCYS, etc., etc.

Most importantly, the 3 presiding judges in M. Ravi's 377A constitutional challenge were all on his side which gives good grounds to hope that 377A will be judged unconstitutional in the High Court, especially after Law Minister K. Shanmugam emphasised that the Attorney-General was free to prosecute whom he wanted, independent of the Government.

The 377A judgment should be coming out within the next week or two, so if you're free, why not attend the reading of the judgement at the Court of Appeal to show your moral support?

I'll let you know the time and date as soon as it is announced.

Cheers,

Roy.

Edited October 21, 2011 by groyn88

[suckling_pig]

Great ! I'll pack a picnic basket !

[groyn88]

Thanks for your moral support and your beautiful prose, Suckling Pig! : )

There's a photo of me and Ravi in this Fridae article published today, written by Ng Yi-Sheng.

Yi-Sheng used your "Project Runway" description about how exciting the hearing was:

http://www.fridae.asia/newsfeatures/2011/10/21/11279.the-faces-of-the-s377a-challenge-m-ravi-and-ivan-tan-eng-hong?n=sec

Cheers,

Roy.

Edited October 21, 2011 by groyn88

[Mercutio]

???

It didn't get repealed.

The vast majority of Singaporean gays were happy admiring the insides of their closets and admonishing the rest of us to stop rocking the boat. It's rather sad that probably more straight people than gay signed the petition for the repeal.

[briax]

If you are talking about the pending case that is filed with the Court of Appeal, there is no new development according the lawyers. We are all waiting.

[Guest Guest]

Verdict is taking a long time.Normal or not?

[dr_a89]

http://www.channelnewsasia.com/stories/singaporelocalnews/view/1221319/1/.html

The court is getting another look at 377A...

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 Judge 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.

[abang]

This is the best Birthday Present for all gay Singaporeans.

377A needs to be heard.

Please show our support... get rid of the discrimination against us.

Society-at-large had done us wrong for too long and it is time now to review the 377A.

[trueblue]

Let's see what happens this time.

[danvin]

Let's see what happens this time.

Don't forget to thank lawyer M Ravi for the courage to challenge AG all the way to court of appeal. Hope for the best.

[HendryTan]

TheOnlineCitizen has a more detail report.

-----------------------------------------------------------------------------------------------------------

BREAKING: Court of Appeal rules that 377A arguably violates the Constitution’s Equal Protection Clause

Published by The Online Citizen on August 21, 2012 By Atticus

http://theonlinecitizen.com/2012/08/breaking-court-of-appeal-rules-that-377a-arguably-violates-the-constitutions-equal-protection-clause/

Do you need to be prosecuted under an unconstitutional law before you have the required legal standing to challenge it?

After deliberating for over 1 year, the Court of Appeal has decided in a landmark decision that you don’t:

“Individuals cannot be required to breach the law in order to gain access to justice”.

In so deciding, the Court of Appeal has also set the parameters for the challenge to 377A on the grounds that it violates the Article 12, the equality protection clause of the Singapore Constitution.

Earlier today, the Court of Appeal overruled the High Court and ruled that Tan Eng Hoon, represented by M. Ravi, had the requisite standing (or, in legalese, locus standi) to pursue his claim that Section 377A was unconstitutional.

377A will have its’ day in Court

On 9 March 2010, Tan and another man were arrested under Section 377A, for engaging in oral sex in a cubicle in a public shopping mall toilet. Each was later charged for committing an act of gross indecency with another male person under Section 377A.

Tan then applied to court for a declaration that Section 377A was unconstitutional.

Three weeks after he filed his application, the AG substituted the Section 377A charges against Tan and his co-accused, with charges for the commission of an obscene act in a public place under Section 294(a) of the Penal Code.

The AG then applied to strike out Tan’s constitutional challenge on the basis, amongst other grounds, that it disclosed no reasonable cause of action and was an abuse of the process of Court.

The attempt to strike out Tan’s constitutional challenge would essentially have meant that the merits of the constitutional challenge would never be fully ventilated in Court: it would have died a procedural death.

An Assistant Registrar granted the AG’s application in December 2010. Tan appealed. When Justice Lai Siu Chu of the High Court upheld the assistant registrar’s decision, Tan appealed further to the Court of Appeal.

In the meantime, both Tan and his co-accused had already pleaded guilty to the obsenity charges, and each was sentenced to a $3000 fine.

377A “affects the lives of a not insignificant portion of our community in a very real and intimate way”

The Court of Appeal has now found that Tan was entitled to continue with his constitutional challenge to Section 377A.

Delivering the court’s judgment, Judge of Appeal V.K. Rajah was careful to highlight that the Court of Appeal was only making a ruling on a preliminary point, and was not ruling on the substantive merits of Tan’s application at all.

In other words, the court only found that Tan had an “arguable” case that Section 377A is unconstitutional, and did not conclude that it was in fact so.

However, advocates for repeal will have good reason to cheer this decision.

Despite not making a ruling on the merits of the constitutionality, the Court of Appeal contextualized the question of Section 377A for the High Court to now consider when adjudicating the merits of the 377a challenge in a manner that can be interpreted as sympathetic to cause of repeal:

“Without going into the merits of the Application, we want to acknowledge that in so far as s 377A in its current form extends to private consensual sexual conduct between adult males, this provision affects the lives of a not insignificant portion of our community in a very real and intimate way. Such persons might plausibly assert that the continued existence of s 377A in our statute books causes them to be unapprehended felons in the privacy of their homes. The constitutionality or otherwise of s 377A is thus of real public interest. We also note that s 377A has other effects beyond criminal sanctions. One unwanted effect of s 377A is that it may also make criminals out of victims. We will list three illustrations to highlight this point. First, a man who suffers domestic abuse at the hands of his male partner may be reluctant to report it to the police as police investigations may reveal that he (ie, the victim of domestic abuse) is guilty of an offence under s 377A. Second, if a man who has been sexually assaulted by another man reports this to the police, he may lay himself open to a s 377A charge as s 377A is silent on consent. While a charge in such a scenario may be unlikely, the fear of being charged may be sufficient to deter some victims from coming forward. Third, lest it is thought that these scenarios are fanciful, we refer to a reported incident where a man who was robbed after having sex with another man reported the theft to the police and received a warning under s 377A (see “This teacher was caught having sex in public, police tells school”, The New Paper (21 February 2005)).”

Of broader relevance to the public at large, the judgment has also laid down clear guidelines for when people are entitled to file applications to challenge potentially unconstitutional laws.

The long and short of it is that so long as one’s constitutional rights are potentially violated by a law, and there is some benefit to having it resolved (i.e. the question is not purely theoretical), one would generally have the right to file a constitutional challenge.

The Court rejected the AG’s argument that the Government’s legally non-binding assurances of non-prosecution are sufficient, stating:

“if a law is unconstitutional, selective prosecution under that law is not an answer as no prosecutions whatsoever should be brought under an unconstitutional law…the very fact of a real and credible threat of prosecution under such a law is sufficient to amount to an arguable violation of constitutional rights, and this violation gives rise to a real controversy for the court to determine”.

[HendryTan]

The written judgement by the Court of Appeal on this case can be found here (on Scribd).

Found the link via sayoni which had a write up and the above link.

[Why?]

We are near to getting rid of the monster once and for all. I afraid 2/3 of parliament may interfere.

I am not sure I will live to see gay marriage become legal in Singapore though. May be the younger generations in their teens or 20s may have hope to see that happening if they know how to push for it.

[Guest 377A]

This article is by Indulekshmi Rajeswari, who was the head of M Ravi's legal team in the case. (taken from http://www.sayoni.com/):

-----------------

Today was an absolutely historic day in the fight for LGBT rights in Singapore. The Court of Appeal decided to allow the constitutional challenge against s377A to go ahead, reversing the decision of the High Court.

At around 11am today, the Court of Appeal of Singapore released their decision regarding the hearing that took place almost a year ago, in 2011. I reported on the hearing back then, and it is useful reading for those who wish to know the background on this case.

In the 106-page judgment, the Court of Appeal explained their reasons. The reasons given are more or less consistent with the arguments of the Appellant, Tan Eng Hong. Primarily, the Court of Appeal opined the following:

1. The decision of the High Court was not consistent, because it simultaneously found that the Appellant’s rights were violated, but also said that there was no real controversy to be determined.
   
2. The Attorney General could not say that a law enacted prior to the Independence of Singapore could not be found to be void by the Courts.
   
3. A person needs to demonstrate that her personal rights have been violated, prior to bringing a challenge. However, this means all they need to demonstrate is that their constitutional rights are affected, as constitutional rights are personal rights.
   A) A constitutional right can be violated by the very existence of a law. Prosecution under that law is not necessary.
   B) Constitutional rights can be violated by the real and credible threat of prosecution under that law.
   
4. There is a prima facie case to be made that s377A violates Article 12, since female homosexuality is not criminalised.
   
5. It is indisputable that s377A targets sexually active gay men. Since the Appellant is a self-professed gay man, Tan’s rights have been violated by the existence of this law.
   
6. The fact that Tan was arrested and detained under s377A is itself a violation of Article 9, if s377A is unconstitutional. Just because he could potentially have been arrested under s294(a) does not mean his arrest was legal.
   
7. There is a real and credible threat of prosecution for Tan, because he is interested in engaging in sexual acts with other men. The Attorney General's Chambers is not bound by the Minister's statement that they will not actively prosecute gay men. Also, the Minister did not say "will never prosecute", but "will not actively enforce" - so the police and the AGC can still act on complaints. Furthermore, people should not be forced to commit crimes, in order to gain access to justice.
   
8. s377A "affects the lives of a not insignificant portion of our community in a very real and intimate way" (a quote from the judgment). It has effects beyond criminal sanctions, such as making victims criminals - for example, men who are being domestically abused by partner, men who are rape victims.
   

This judgment is nothing less than earth-shattering for the LGBT community. For the first time, the Courts have acknowledged the existence of the gay person, and the gay community, and their interests. Furthermore, for the first time, they have acknowledged that s377A is "alive and kicking", and has effects on the community beyond that of direct enforcement.

While we await the next step, we can take a moment to celebrate a significant step in our march towards equal rights.

Personal note from the author: It has been a real privilege working on this case for 2 years, and seeing the fruits of my hard work. I’d like to thank everyone who has helped out so far.

The full judgment

CA Judgment, dated 21 Aug 2012 (on Scribd)

Latest stories

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

Court of Appeal rules that 377A arguably violates the Constitution's Equal Protection Clause (The Online Citizen)

High Court set to hear case on law criminalising gay sex (Channel NewsAsia)

Time to stop cheering and step up to assist M Ravi (Andrew Loh)

--------------------------------

quotes from the more-than-100 page judgment report from the Court of Appeal:

“Individuals cannot be required to breach the law in order to gain access to justice”.

“Without going into the merits of the Application, we want to acknowledge that in so far as s 377A in its current form extends to private consensual sexual conduct between adult males, this provision affects the lives of a not insignificant portion of our community in a very real and intimate way. Such persons might plausibly assert that the continued existence of s 377A in our statute books causes them to be unapprehended felons in the privacy of their homes. The constitutionality or otherwise of s 377A is thus of real public interest. We also note that s 377A has other effects beyond criminal sanctions. One unwanted effect of s 377A is that it may also make criminals out of victims. We will list three illustrations to highlight this point. First, a man who suffers domestic abuse at the hands of his male partner may be reluctant to report it to the police as police investigations may reveal that he (ie, the victim of domestic abuse) is guilty of an offence under s 377A. Second, if a man who has been sexually assaulted by another man reports this to the police, he may lay himself open to a s 377A charge as s 377A is silent on consent. While a charge in such a scenario may be unlikely, the fear of being charged may be sufficient to deter some victims from coming forward. Third, lest it is thought that these scenarios are fanciful, we refer to a reported incident where a man who was robbed after having sex with another man reported the theft to the police and received a warning under s 377A (see “This teacher was caught having sex in public, police tells school”, The New Paper (21 February 2005)).”

-----------------

The article below is taken from http://theonlinecitizen.com/2012/08/breaking-court-of-appeal-rules-that-377a-arguably-violates-the-constitutions-equal-protection-clause/

By Atticus -

Do you need to be prosecuted under an unconstitutional law before you have the required legal standing to challenge it?

After deliberating for over 1 year, the Court of Appeal has decided in a landmark decision that you don’t:

“Individuals cannot be required to breach the law in order to gain access to justice”.

In so deciding, the Court of Appeal has also set the parameters for the challenge to 377A on the grounds that it violates the Article 12, the equality protection clause of the Singapore Constitution.

Earlier today, the Court of Appeal overruled the High Court and ruled that Tan Eng Hoon, represented by M. Ravi, had the requisite standing (or, in legalese, locus standi) to pursue his claim that Section 377A was unconstitutional.

377A will have its’ day in Court

On 9 March 2010, Tan and another man were arrested under Section 377A, for engaging in oral sex in a cubicle in a public shopping mall toilet. Each was later charged for committing an act of gross indecency with another male person under Section 377A.

Tan then applied to court for a declaration that Section 377A was unconstitutional.

Three weeks after he filed his application, the AG substituted the Section 377A charges against Tan and his co-accused, with charges for the commission of an obscene act in a public place under Section 294(a) of the Penal Code.

The AG then applied to strike out Tan’s constitutional challenge on the basis, amongst other grounds, that it disclosed no reasonable cause of action and was an abuse of the process of Court.

The attempt to strike out Tan’s constitutional challenge would essentially have meant that the merits of the constitutional challenge would never be fully ventilated in Court: it would have died a procedural death.

An Assistant Registrar granted the AG’s application in December 2010. Tan appealed. When Justice Lai Siu Chu of the High Court upheld the assistant registrar’s decision, Tan appealed further to the Court of Appeal.

In the meantime, both Tan and his co-accused had already pleaded guilty to the obsenity charges, and each was sentenced to a $3000 fine.

377A “affects the lives of a not insignificant portion of our community in a very real and intimate way”

The Court of Appeal has now found that Tan was entitled to continue with his constitutional challenge to Section 377A.

Delivering the court’s judgment, Judge of Appeal V.K. Rajah was careful to highlight that the Court of Appeal was only making a ruling on a preliminary point, and was not ruling on the substantive merits of Tan’s application at all.

In other words, the court only found that Tan had an “arguable” case that Section 377A is unconstitutional, and did not conclude that it was in fact so.

However, advocates for repeal will have good reason to cheer this decision.

Despite not making a ruling on the merits of the constitutionality, the Court of Appeal contextualized the question of Section 377A for the High Court to now consider when adjudicating the merits of the 377a challenge in a manner that can be interpreted as sympathetic to cause of repeal:

“Without going into the merits of the Application, we want to acknowledge that in so far as s 377A in its current form extends to private consensual sexual conduct between adult males, this provision affects the lives of a not insignificant portion of our community in a very real and intimate way. Such persons might plausibly assert that the continued existence of s 377A in our statute books causes them to be unapprehended felons in the privacy of their homes. The constitutionality or otherwise of s 377A is thus of real public interest. We also note that s 377A has other effects beyond criminal sanctions. One unwanted effect of s 377A is that it may also make criminals out of victims. We will list three illustrations to highlight this point. First, a man who suffers domestic abuse at the hands of his male partner may be reluctant to report it to the police as police investigations may reveal that he (

ie

, the victim of domestic abuse) is guilty of an offence under s 377A. Second, if a man who has been sexually assaulted by another man reports this to the police, he may lay himself open to a s 377A charge as s 377A is silent on consent. While a charge in such a scenario may be unlikely, the fear of being charged may be sufficient to deter some victims from coming forward. Third, lest it is thought that these scenarios are fanciful, we refer to a reported incident where a man who was robbed after having sex with another man reported the theft to the police and received a warning under s 377A (see “This teacher was caught having sex in public, police tells school”,

The New Paper

(21 February 2005)).”

Of broader relevance to the public at large, the judgment has also laid down clear guidelines for when people are entitled to file applications to challenge potentially unconstitutional laws.

The long and short of it is that so long as one’s constitutional rights are potentially violated by a law, and there is some benefit to having it resolved (i.e. the question is not purely theoretical), one would generally have the right to file a constitutional challenge.

The Court rejected the AG’s argument that the Government’s legally non-binding assurances of non-prosecution are sufficient, stating:

“if a law is unconstitutional, selective prosecution under that law is not an answer as no prosecutions whatsoever should be brought under an unconstitutional law…the very fact of a real and credible threat of prosecution under such a law is sufficient to amount to an arguable violation of constitutional rights, and this violation gives rise to a real controversy for the court to determine”.

The author writes under a pseudonym for professional considerations.