Singapore’s Court of Appeal has decided that a constitutional challenge to the country’s colonial era law banning sex between men can go ahead.
In March, Singapore’s High Court dismissed the challenge, filed by Tan Eng Hong, a man who was caught having oral sex with another man in a public toilet.
Both men were charged under Section 377A of the Singaporean Penal Code but after Tan launched the constitutional challenge to the law the Attorney General of Singapore withdrew the charge and substituted it with another – committing an obscene act in public.
The High Court found that Tan had a legitimate interest in the issue as he was affected by the law, but that the case was not one of ‘real controversy’ as, since the Section 377A charge had been replaced with another, the matter had become ‘merely hypothetical.’
Appeal judges Andrew Phang, V K Rajah and Judith Prakesh found that the law ‘affects the lives of a not insignificant portion of our community in a very real and intimate way,’ as 377A outlawed both public and private sex acts.
They found that Tan’s rights had been violated by the law as a sexually active gay man, and that there was a prima facie case to be made that the law violated provisions for the equality of the sexes in the constitution as it only criminalized same-sex behavior between men while lesbians went unpunished.
The judges also noted that Singapore’s Attorney General was unable to say whether a law passed before Singapore’s independence could not be struck down by court.
Indulekshmi Rajeswari, one of Tan’s lawyers wrote that the verdict was a breakthrough for Singapore’s LGBT community, who held their forth annual Pink Dot pride festival this year.
‘This judgment is nothing less than earth-shattering for the LGBT community,’ Rajeswari wrote in an op-ed on the Sayoni website.
‘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.’
The Singaporean government declared that the law would not be proactively enforced in October of 2007. However lawmakers have refused to act to decriminalize homosexuality despite the country’s revered first post-independence prime minister Lee Quan Yew urging the Government to do so.
Lee Quan Yew’s son is the current prime minister of Singapore and Lee Senior has said that he would accept a gay grandchild.