Singapore’s Court Rules With Government Vs. the Constitution
A FOUR-YEAR battle ended yesterday, when Singapore's highest court upheld the constitutionality of Section 377(a) of the country's penal code, which renders any man convicted of committing "or abet[ting] the commission of...any act of gross indecency" with another man liable to two years in prison. Tan Eng Hong first challenged the law in September 2010, after he was charged under 377(a) for having oral sex with another man in a public-toilet stall. Two years later a second challenge was raised by Gary Lim and Kenneth Chee, a gay couple who have been together for 17 years. They argued that the law contravened two articles in Singapore's constitution: Article 9, which guarantees that "no person shall be deprived of his life or personal liberty save in accordance with the law", and Article 12, the first section of which states, "All persons are equal before the law and entitled to the equal protection of the law."
The result was not entirely surprising. Singapore's government tends to do well before Singaporean courts: it has, for instance, never lost a defamation suit. The court itself, both in oral arguments last summer and in this ruling, repeatedly expresses unwillingness to consider "extra-legal" and "emotional" arguments, which have their place in the legislative rather than the judicial process. The court's role, the ruling said, was to be "independent, neutral and objective", though in the early, throat-clearing section of this ruling, the court noted that it grants the government a "presumption of constitutionality", because "our legislature is presumed not to enact legislation which is inconsistent with the Singapore Constitution." In other words, the court will neutrally and objectively weigh the arguments presented by each side, though one side (the government's) enters with the wind at its back.
Attorneys for Messrs Lim and Chee argued that inherent to Article 9's guarantees of life and liberty are "a limited right to privacy and personal autonomy allowing a person to express affection and love toward another human being." The court swiftly shot down that argument: in Singaporean jurisprudence, Article 9 only guards against unlawful detention. Mr Tan's attorney argued that 377(a) criminalises a group of people for an innate attribute; the court concluced here that "there is, at present, no definitive conclusion" on the "supposed immutability" of homosexuality (Lee Hsien Loong, Singapore's prime minister, takes a different view). M. Ravi, a human-rights lawyer representing the challengers, had argued that Section 377(a) arbitrarily distinguished between gay men and women, leaving the former open to incarceration and the latter untouched, but his argument also held no weight for the court. It cited an earlier ruling that validated that distinction because female homosexual acts "were either less prevalent or perceived to be less repugnant than male homosexual conduct". As for appeals to Article 12(1), the court pointed to the article immediately following, which states, "Except as expressly authorised by this Constitution, there shall be no discrimination against citizens of Singapore on the ground only of religion, race, descent or place of birth," but does not mention sex, gender or sexual orientation.
It reviewed historical documents on Section 377(a)'s adoption, which precedes Singapore's independence, and held that the legislature has the right to pass laws that express and enforce popular morality. As for fears that this permits a tyranny of the majority, the court warns against a "tyranny of the minority", and says that in this case the appellants have failed to provide a "legal basis for claiming that their rights should trump those of the majority." As for the rather sensible argument that what consenting adults do in the privacy of their own home neither harms anybody nor impinges on anyone else's rights to disapprove of what they do (only to have that disapproval codified into law), the court held that it was a question for the legislature.
The question now, of course, is whether Singapore's legislature will take up the debate. The last time it did so was 2007, when laws criminalising heterosexual anal and oral sex were removed. On a daily level, Singapore is hardly hostile to gay people: Pink Dot, its gay-pride event (pictured), drew a record crowd of 26,000 this year. Singapore told a United Nations anti-discrimination committee that "homosexuals are free to lead their lives and pursue their social activities. Gay groups have held public discussions and published websites, and there are films and plays on gay themes and gay bars and clubs in Singapore."
But if every sexually active gay man who attends one of those plays or bars or clubs has the threat of imprisonment hanging over his head, simply for who he chooses to love in the privacy of his own home, that tolerance is conditional. Between 2007 and 2013, nine people were convicted under 377(a), according to a spokesman for Singapore's State Courts.
And leaving aside arguments over whether the government has any place in the bedroom (this newspaper has long believed it does not), Singapore's laws make it an outlier, particularly in the developed world. Gay sex is now legal in 113 countries; gay marriage or civil unions in dozens more. Singapore is rightfully proud of its ability to attract talent from all over the world. Yet how long will that ability last? Section 377(a) turns men who are legally married in countries around the world into unindicted criminals in Singapore; why would they come here if they could go anywhere else?
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