Section 377A Challenge Can Proceed: Court of Appeal

http://www.sayoni.com/lgbt-rights/2226-s377a-court-of-appeal

This article is by Indulekshmi Rajeswari, who was the head of M Ravi's legal team in the case.
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 judgmentCA 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)
377A in the spotlight again (TODAY)
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)

Last year on Sayoni
Mar 2011: s377A Appeal Fails at High Court
Sep 2011: Report of s377A Hearing at the Court of Appeal, Singapore

Other Coverage on the Case
Mar 2011: High Court waves away 377A controversy (Yawning Bread)
Sep 2011: s377A - do not disturb? (Publichouse.sg)
Oct 2011: Exorcising specters: The issue of 377A (The Online Citizen)