On the prosecution of Mr Tan Eng Hong under Section 377A and the challenge to the law’s constitutionalityPublished by webmaster September 27th, 2010 in 2010 posts.
On 24 September 2010, Mr M Ravi, a lawyer acting for Mr Tan Eng Hong, initiated a constitutional challenge to Section 377A of the Penal Code. This is the law that makes “gross indecency” between two men a crime in Singapore, punishable with up to two years’ imprisonment.
Mr Tan had been charged under Section 377A in connection with an alleged incident of sex in a shopping centre toilet.
People Like Us is not a party to this case and the associated constitutional challenge that Mr Ravi initiated. Moreover, as the matter is now before the courts, it is not appropriate for us to make any comments about the specifics of the case.
That said, People Like Us do not condone sex in public spaces where conflict with other members of society can occur. At no time do we say that these should not be prosecutable offences. We have however long held the view that should the State wish to prosecute, it should do so using gender-neutral laws, so that whether the specifics are same-sex or opposite-sex, there is parity in treatment.
It so happens that there is such a law — Section 20 of the Miscellaneous Offences (Public Order and Nuisance) Act. This law makes “indecent behaviour” in public an offence and is written in a gender-neutral way. It is regrettable that prosecutors have chosen to use Section 377A instead of this one, especially since the penalties are dissimilar. Section 377A mandates a prison sentence, but Section 20 gives the judge a choice of imposing a fine of up to $1,000, or a prison sentence of up to one month, or both, for the first offence.
Given the disparity in penalties, any decision to use Section 377A precipitates discriminatory treatment, and it is for this reason that People Like Us consider it an inappropriate law to use. Section 20 of the Miscellaneous Offences (public Order and Nuisance) Act being available, it is hard to understand why prosecutors are still choosing to use Section 377A; or what beliefs underlie the decision to perpetuate the use of this law.
Furthermore, Prime Minister Lee Hsien Loong declared in October 2007 that Section 377A will not be “proactively enforced”. The current prosecution of Mr Tan raises questions about what the Prime Minister meant when he said that. Even if the State does not actively seek out men who have sex with men to prosecute but rely instead on private security guards to report, such an argument ignores two important facts:
1. the State has discretion whether to charge them under Section 377A or another law;
2. the continued existence of Section 377A legitimises homophobia and the private vigilantism of security guards, who then take it upon themselves to do the proactive work that the State says it does not do.
Mr Tan should not have had to face a charge of Section 377A. Better yet, the government should take immediate steps towards legislative repeal. In the meantime, the Prime Minister’s October 2007 promise not to proactively enforce this law should be honoured through a total moratorium.