High Court reserves judgement on challenge to Penal Code section
By Teo Xuanwei, TODAY | Posted: 14 February 2013 2248 hrs
File photo of Singapore's financial district across the Singapore River. (AFP/File - Simin Wang)
SINGAPORE: A High Court reserved judgment on Thursday on a challenge that Section 377A of the Penal Code, which criminalises sex between gays, is unconstitutional - the second such legal action in recent years.
Graphic designers Gary Lim Meng Suang, 44, and Kenneth Chee Mun-Leon, 37, who have been a couple for 15 years, contend that the statute discriminates on the basis of sexual orientation, which makes it a violation of Article 12 of the Constitution stating that "all persons are equal before the law and entitled to the equal protection of the law".
Represented by Mr Peter Low, Mr Choo Zheng Xi and Ms Indu*lekshmi Rajeswari, they argued before Justice Quentin Loh during a closed-door hearing on Wednesday that S377A is "absurd, arbitrary and unreasonable" for several reasons.
For example, it criminalises the "identity" of a person - premised on their argument that homosexuality is "innate and immutable" - and the fact that it is selectively and arbitrarily enforced.
The Government had said, following previous calls for a repeal of the law, that S377A would be kept but not proactively enforced.
The Attorney-General's Chambers, however, submitted that the statute differentiates between men and women, and not specifically to gays.
In other words, the law also applies to heterosexual or bisexual men.
It added that S377A has the "clearly-stated purpose of reflecting public morality" - a point contested by Mr Lim and Mr Chee, who pointed out that it does not cover lesbians and heterosexuals who choose to commit other acts which are against public morality, such as adultery or pre-marital sex.
The hearing on Wednesday follows a similar challenge sought by Mr Tan Eng Hong, after he was arrested for engaging in oral sex in a public toilet.
In allowing Mr Tan to pursue the case, Judge of Appeal V K Rajah had noted in August last year that no proactive enforcement of S377A is of "a totally different complexion from 'no enforcement'".
Mr Tan's case will be heard on March 6, also before Justice Loh.
- TODAY/xq
