Singapore Top Court Tackles Challenge to 1938 Gay-Sex Ban

Singapore’s highest court heard

challenges to a 76-year-old ban on gay sex, a divisive issue

after India reversed a decision to strike down a similar law and

same-sex marriage was allowed in New Zealand last year.

“Just because a matter is controversial does not mean the

judiciary should shy away from upholding its constitutional

mandate,” Deborah Barker, a lawyer for Kenneth Chee and Gary

Lim, said today while arguing that the 1938 law violates rights

to equal protection and should be declared void. Parliament, not

the courts, is the right forum, a government lawyer argued.

Singapore lawmakers in 2007 agreed to keep the law, known

as Section 377A, when they repealed related provisions that made

heterosexual oral and anal sex a crime. Gay-rights activists and

church groups advocated last year against and for the ban, which

the government says it hasn’t actively enforced since the

mid-1990s. That prompted the Attorney General’s Chamber to warn

that comment on the case could be in contempt if calculated to

affect the court’s decision.

“The majority of the population still favors the current

legal framework,” Law Minister K. Shanmugam told Bloomberg News

last month when asked about the case and its background. While

society is evolving and social mores are changing, “the

government has taken the position that this is a situation where

it is best to agree to disagree.”

Source: Courtesy Gary Lim

Gary Lim, left, and Kenneth Chee at the Pink Dot event in Singapore on May 15, 2010. Close

Gary Lim, left, and Kenneth Chee at the Pink Dot event in Singapore on May 15, 2010.

Open

Source: Courtesy Gary Lim

Gary Lim, left, and Kenneth Chee at the Pink Dot event in Singapore on May 15, 2010.

‘Moral Future’

Police issued an advisory asking attendees at this year’s

annual gay-pride rally Pink Dot on June 28 to “keep the peace”

and avoid comments on race and religion. The warning followed

Muslim and Christian groups calling on their followers to wear

white on the day to signify “purity” and to oppose the event.

Gay activists early last year started an online petition

for abolition ahead of a lower court hearing on the law’s

constitutionality, and a group of pastors met Shanmugam to

present their views on defending the nation’s “moral future.”

The Singapore Court of Appeal hearing today comes as

battles over gay rights gained prominence in the past two years.

India in December overturned a 2009 verdict legalizing

consensual gay sex. Russia enacted anti-gay laws, stoking

international ire, and New Zealand became the first Asia-Pacific

nation to legalize gay marriages.

A U.S. Supreme Court ruling triggered uncertainty in the

country, where states have a patchwork of laws and court rulings

allowing gay marriage in some and banning it in others.

Mandatory Jail

Recent survey results on gay acceptance in Singapore

“shows the controversy in society,” the country’s Chief

Prosecutor Aedit Abdullah said today.

“These are arguments that should lie with the

legislature,” Aedit told the three-judge panel led by Andrew

Phang. “We’re concerned about the knock-on effects and the

effects on other statutes and laws,” he said.

M. Ravi, a lawyer for Tan Eng Hong who has a parallel

appeal against the ban, said Section 377A was biased against

homosexual men.

He said it would be almost impossible for a sexually-active

gay man to remain on the right side of the law, which bans acts

of “gross indecency” between males. Offenders face mandatory

jail terms of as long as two years.

The law should either be declared void or modified to

exclude acts between consenting adults in private, Barker said.

High Court Judge Quentin Loh had agreed with government

lawyers when he heard both cases last year, saying the courts

should be slow in overturning parliament’s decision.

Sting Operations

There were a total of 185 people convicted under section

377A over a 10-year period from 1997 to 2006, according to

figures from the Home Affairs Ministry. Seven people were

convicted in 2006, with 1999 having the highest at 31.

In the early 1990s, undercover police arrested several men

in sting operations, charging them with molestation and public

solicitation, according to reports in The Straits Times. A

magazine with advertisements targeting homosexuals had its

publishing license suspended and some theater plays deemed as

promoting homosexual lifestyles were censored.

Even so, Prime Minister Lee Hsien Loong told parliament in

2007 that “the government does not act as moral policemen.”

Singapore is a conservative society with space for homosexuals,

he said then. Lee said in January 2013 it was best for

Singaporeans to “agree to disagree” on the issue of gay

rights.

Prosecutorial Discretion

About 47 percent of 4,000 Singaporeans in a survey

commissioned by the government rejected “gay lifestyles,”

according to the results released in August. Twenty six percent

were receptive and 27 percent neutral.

Then-Chief Justice Yong Pung How wrote in a 1995 ruling

that he was “confident that the judicious exercise of

prosecutorial discretion will prevail” in applying the law.

In 2003, then-Prime Minister Goh Chok Tong said homosexuals

were allowed to work in the civil service. Singaporean media

published stories at the time touting the so-called pink dollar

of affluent gay tourists. The following year, police banned a

planned year-end celebration by a gay events group for being

“contrary to public interest.”

While authorities have allowed a separate gay-pride event,

Pink Dot, to be held since 2009, three children’s titles were

withdrawn from national libraries recently — including one

based on a real-life story of two male penguins that hatched an

egg at the New York Zoo — after complaints that they weren’t

“pro-family.” Books in the adult section do contain titles

with homosexual themes, the National Library Board said.

Diversity, Inclusiveness

A record 26,000 pink-clad people turned up last month at

Pink Dot, sponsored by companies including Google Inc. since

2010, Barclays Plc since 2012, and Goldman Sachs Group Inc.,

which became a sponsor this year.

Edward Naylor of Goldman Sachs and John McGuinness of

Barclays said their banks supported events like Pink Dot as part

of their commitment to diversity and inclusive workplaces.

“Attracting, retaining and motivating people from diverse

backgrounds, including people of all sexual orientations, is

essential to our success,” Naylor said.

“Barclays is committed to a culture of meritocracy, where

people are judged on professional performance rather than their

personal lives,” McGuinness said.

Robin Moroney, a spokesman for Google, referred to the

company’s comment in a May Pink Dot announcement that

encouraging diversity “can lead to brilliant and inspiring

ideas.”

The cases are Lim Meng Suang v Attorney-General, CA54/2013.

Tan Eng Hong v Attorney-General, CA125/2013. Singapore Court of

Appeal.

To contact the reporter on this story:

Andrea Tan in Singapore at

atan17@bloomberg.net

To contact the editors responsible for this story:

Douglas Wong at

dwong19@bloomberg.net

Terje Langeland

Singapore Top Court Tackles Challenge to 1938 Gay-Sex Ban