By Joanne Chan
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.
Pubblicato da Lorenzo Bernini