Singapore Top Court Tackles Challenge to 1938 Gay-Sex Ban

Photographer: Roslan Rahman/AFP/Getty Images

People gather at 'Speakers' Corner' for the annual gay pride rally Pink Dot in Singapore on June 28, 2014. Close

People gather at 'Speakers' Corner' for the annual gay pride rally Pink Dot in... Read More

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Photographer: Roslan Rahman/AFP/Getty Images

People gather at 'Speakers' Corner' for the annual gay pride rally Pink Dot in Singapore on June 28, 2014.

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Singapore lawmakers in 2007 agreed to keep the law, known as Section 377A, when they repealed related provisions that made heterosexual oral and anal sex a crime.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.

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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

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