Fridae

I want to comment with something stabbing and original, but this stuff still happens so often that all the creative responses have been used.

EVOLUTION HAPPENS... sometimes.

Reason not to go to the Third World #6873

Let's look at the positive side. Because the police had prosecuted them, they now have the ground for challenging the constitutionality of the laws used to prosecute them. Fortunately for the victim and unfortunately for the gay community in Singapore, the Attorney- General decided to withdraw a 377a charge recently on a man who was caught for having gay sex in a public toilet. As the charge was withdrawn, 377a's constitutionality couldn't be challenged as no-one had been victimized as a result of this law. (http://yawningbread.wordpress.com/2011/03/19/high-court-waves-away-377a-controversy/) In Singapore, it looks like some 'hero' must first fall victim to 377a before this law can be challenged for its constitutionality.

The above comment is totally incorrect.

Human rights lawyer M. Ravi to cross final hurdle before challenging the constitutionality of Section 377A in High Court

Dear friends,

On behalf of his client, E. H. Tan, a gay Singaporean man, well known human rights lawyer M. Ravi intends to challenge the constitutionality of Section 377A of the Penal Code which states:

"Any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to 2 years."

The repeal of the "unnatural sex law", Section 377, during the last penal code review in 2007, which effectively legalised oral and anal sex between opposite-sex couples and lesbians, has rendered Section 377A unconstitutional because it discriminates against men-who-have-sex-with-men (MSM).

Article 12 of the Constitution of the Republic of Singapore states:

"All persons are equal before the law and entitled to the equal protection of the law."

Section 377A criminalises oral and anal sex between male consenting adults even if performed in private while the exact same acts are legal for heterosexual couples and lesbians.

If the High Court rules that Section 377A does, in fact, discriminate against MSMs and renders them unequal before the law, it will have to be officially struck down.

However, to present his client's case in the High Court, M. Ravi will first have to prove two things:

1) that E. H. Tan has "locus standi" and

2) that there is sufficient "controversy" for the constitutional challenge to be heard in the High Court.

The first condition has already been satisfied. In a judgement dated 15 March 2011, High Court judge Lai Siu Chiu ruled that Tan did have locus standi, that is, he was affected by this law to have a legitimate interest or standing in the issue.

However, she also ruled that there was no "real controversy" which required the court’s attention - legalese meaning that it was not a matter of importance to be decided by a court.

Justice Lai's ruling is thought to be contradictory. The matter is most definitely of sufficient importance or "controversy" because it affects the life of not only Tan but of the entire MSM community.

As such, M. Ravi intends to appeal the ruling in the Court of Appeal.

If he is successful, and chances of it are good, the constitutional challenge can finally be heard in the High Court.

Indulekshmi Rajeswari, a law graduate and active member of Sayoni, a queer women's online forum, is assisting Ravi with research.

This is a watershed moment in the history of gay equality in Singapore.

If you wish to support M. Ravi and his client, please turn up at the hearing. The date and time have been confirmed as on Tuesday, 27 September 2011 at 10 a.m. The venue is the Court of Appeal on level 9 of the new Supreme Court building, the one topped with a "flying saucer" and built on the site of the former Colombo Court building.

Please bring along your IC. You have to clear a security check at the entrance in order to get in. Also, the Supreme Court has a dress code - no jeans, berms, slippers, T-shirts, etc. Formal attire is recommended, but there is no need to wear a suit. Try to get there at least half-an-hour before the hearing to get a good seat because the Attorney-General and related legal staff tend to hog the front rows.

Further reading:

1) http://sgwiki.com/wiki/Section_377_of_the_Singapore_Penal_Code

2) http://yawningbread.wordpress.com/2011/03/19/high-court-waves-away-377a-controversy/

3) http://sgwiki.com/wiki/High_Court_submission_by_lawyer_M._Ravi_for_plaintiff_Tan_Eng_Hong_(7_Dec_10)

4) http://sgwiki.com/wiki/Archive_of_Judgement_of_High_Court_judge_Lai_Chiu_Siu_dated_15_Mar_11

5) http://sgwiki.com/wiki/Tan_Eng_Hong%27s_appeal_against_High_Court_decision_(27_Jun_11)

i cant understand why some of the governance around the world consider the being gay as a crime....

everyone deserves happiness, and its just happen that they find their own on that way.....c'mon man of earth get life and make it sense......

@4, that's fantastic news Polinc, thanks for the post! Let's hope the court is robust enough to strike out 377a, it'd be a win- win situation as it enables much needed reform without loss of face for the government, getting rid of an embarrassing anomaly that is in breach of UN resolutions.

hell

I would love to see a full-on constitutional challenge to these sort of laws in every country that still cling to a 19th century mentality

Hey, #4, thanks for sharing the quoted letter. You didn't mention the source. I'd appreciate if you could let us know where you got it. If what the letter says is true, it's really good news, but I am surprised that Fridae didn't cover it. Perhaps, Fridae is intentionally trying to let this go through smoothly without much reaction from the anti-gay camp. I guess not giving too much publicity to this may well do us good. We should have learned a lesson from the Parliamentary petition to repeal 377a, during which we attracted so much attention to it that the anti-gay camp went into full mobilization mode in reaction. We should let the court peacefully make a non-political, just COURT decision, but not to start another full-fledged war with the anti-gay camp.

Going back to your comment, my above statement, "As the charge was withdrawn, 377a's constitutionality couldn't be challenged as no-one had been victimized as a result of this law", was based on an earlier report by Fridae (http://www.fridae.asia/newsfeatures/printable.php?articleid=10476) which says that "The High Court of Singapore has on Monday rejected an application filed by lawyer M Ravi who sought to challenge the constitutionality of Section 377A of the Penal Code that prohibits sexual relations between men." In other words, should the charge be NOT withdrawn, we could have challenged the constitutionality of s377a by now; simply because the charge had been withdrawn, we couldn't challenge it.

In a follow-up report, Alex Au blogged (http://yawningbread.wordpress.com/2011/03/19/high-court-waves-away-377a-controversy/) that Mr Ravi subsequently made an appeal , and that the judge dismissed the appeal on ground that there is no "real controversy" because "the facts are merely HYPOTHETICAL." This was why I commented that "In Singapore, it looks like some 'hero' must (ACTUALLY) first fall victim to 377a before this law can be challenged for its constitutionality."

Of course, we could argue that the judge's decision is "shockingly opaque", but as of current, this decision stays legally effective. Unless we successfully appeal against it, of course.

I am in favour of letting the Court instead of the Parliament remove s377a. Understandably, MPs are afraid of losing votes, but judges don't have such reservations. It's not easy for us to persuade the MPs to vote in our favour because we belong to a minority group. They are more concerned about not offending the conservative group who numbers more than us and our supporters.

Hi Sunthenmoon,

My name is Roy Tan and I am in direct contact with lawyer M. Ravi. I am drumming up support from the gay community for his hearing next Tuesday, 27 September.

Even though Ravi's client Tan Eng Hong was not charged under Section 377A, High Court Justice Lai ruled that he had "locus standi" or standing to challenge the constitutionality of 377A. However, she also ruled that there was insufficient controversy for the challenge to be made.

Now this is a very contradictory ruling, as how can there possibly be insufficient controversy when 377A affects the lives of not only Tan but also every gay man in Singapore? Many academic lawyers both locally and internationally as well as human rights experts feel that Justice Lai's judgement is incongruous.

Therefore, Ravi has a very good chance of winning the appeal next week, i.e. getting the courts to rule that there IS sufficient controversy for Ravi's client to challenge the constitutionality of 377A.

Once this final hurdle has been overcome, the constitutional challenge can proceed in the High Court.

If you're free next Tuesday, why not attend the hearing at the Court of Appeal which starts at 10 a.m. and witness gay history in the making.

Thanks,
Roy.

Hi Roy,
Thanks for your reply. If you are the Roy Tan who organised Pinkdot, I guessed we had shaken hands during the last Pinkdot event at the Speakers' Corner. I had thanked you for having created such a brilliant project. I had also shaken Ravi's hands while he was enjoying a massage during the same event for having challenged s337a's constitutionality.

As I mentioned above, I have always been in favour of going to the court rather than the Parliament to remove this law in Singapore. Unless there is compelling ECONONMIC reasons to remove s377a, I expected the ruling party to do nothing so as to not offend the conservative voters and the small but influential group of anti-gay fundamentalists. It's only a politically correct move.

In order not to confuse the majority of the readers who are unfamiliar with technical legal terms, I prefer to use simple English. Let's recap what'd happened up to this stage.

Tan had appealed to being denied a challenge to the constitutionality of s377a after his s377a charge had been withdrawn. Although this appeal had been rejected (which means the status remains that he was disallowed to challenge the constitutionality of s377a), Tan and the LGBT community had a small victory.

That victory came from the judge's view that even though Tan had not been a victim of s377a, he still had an acceptable reason to challenge its constitutionality.

I am sorry that I can't be there at the court, because I will be working. Mass support doesn't help, but being able to argue strongly does. What I think could help Ravi is we make use of the inner circle's network of legal experts and counselors around the world to create an archive of relevant cases, laws and judgements.

With the judge's decision, it looks like challenging this law in court seems much more feasible, so the LGBT community should create this archive and use it as an arsenal for LGBT members in Singapore and overseas to fight for the removal of anti-gay laws such as s377a. We don't have to engage into any pro-gay vs anti-gay war 2.0 to challenge this law, and I think it is certainly a more socially responsible and politically easy means to the end.

I have a suggestion for Fridae, though. It could mobilize pro-LGBT IT, legal and other experts around the world to assemble this online archive asap. With this online library of info resources, human rights lawyers around the world will be able to share resources economically & conveniently. An international panel of pro-LGBT lawyers can also be networked to offer mutual assistance in times of needs. Lawyers in Hong Kong, and New Delhi, etc. should have a lot of information and experience to share. If Ravi has this archive on hand, he and his team of assistants could have saved hours of repetitive research work. The war against s377a is still ongoing, even if it is removed in Singapore. There are many other countries, provinces and States where anti-gay laws still exist. If Fridae could provide the leadership to support LGBT around the world in their legal challenges to anti-gay laws, then its contribution will be much more far-reaching.

Things like this happen alot, all over the world, sad but true.
We can hope, that things change across the world for GLBT
everywhere.

These things are not just related to the 3rd world, so the ignorant comment made my MALLOWISIOUS, really pisses me off.

Saying this is another reason for not going to the 3rd world,
is the most ignorant, misinformed, ridiculous comment
I have read/heard for years.

Open your mind & travel to the 3rd world, where the people, culture, food & overall experience can enrich your life.

Sure the local laws/customs, may not be what you want/expect/get at home, but you just need to respect the local laws & have a great time.

Using this kind of incidents to promote racism is gross, but the "respect the local laws & have a great time" attitude is not much better. I don't respect homophobic laws no matter where they apply, because I reject cultural relativism. "We can hope, that things change across the world for GLBT everywhere." If the only thing we do is to hope, and "have a great time", things certainly will not change. Fortunately in India there are actually some activists. They will continue fighting for changes irrespectively what you Westerners think.

@Sunthemoon:
It was a pleasure to have shaken your hand.
If you are not able to attending the hearing this Tuesday, 27th September at 10 a.m. at the Court of Appeal, perhaps you could rally your friends who are free that day.
Thank you for your ueful suggestions.
M. Ravi already has a committed group of local and international legal and human rights experts assisting him with the case.
This, together with the recent spate of positive media reports on Singaporean homosexuals despite express prohibitions by the MDA from doing so and which may signal a sea change in the government's attitude towards homosexuality, augurs well for the outcome of the constitutional challenge.
Cheers,
Roy Tan.

Hi Roy,
I am glad that Ravi has been fortunate to be able to find so many helpful people. What I meant was we could have shared the fruits of their combined hard work with the LGBT in other countries. If all their research materials are archived (perhaps when they or others have more time to do so after the court case), then we can make this valuable resource accessible to our brothers and sisters in other countries where gay rights still need to be fought.

I had already posted the details of this hearing on my Facebook so that my friends who are both interested and free to attend may be informed.

However, my personal opinion remains that we shouldn't create too much publicity about this case. Even after the appeal is successful, and the constitutional challenge proper proceeds, the wiser strategy for the LGBT community and our supporters is to avoid creating too much heat and publicity. I hope that the judge will be able to make his or her decision, then, without any disturbance, based on sound arguments and relevant facts that Mr Ravi will present. This is not going to be some form of Proposition 8-like referendum anyway, so I don't see any value in vociferous support from the public, for it may backfire and incite a public uproar, which is more likely to sabotage than help us.

If any "rallying" is valuable at all, it must be a call to more law practitioners, academics and students in the Commonwealth to come forward to assist Mr Ravi. The stronger the legal team, the more confident we can be in winning both the appeal and the constitutional challenge cases.

In fact, in an official summary of a Law Society of Singapore's Council Report on the Proposed Amendments to the Penal Code (http://www.lawsociety.org.sg/feedback_pc/pdf/execSummary.aspx), it is stated that "The majority of Council considered that the retention of s. 377A in its present form cannot be justified. This does not entail any view that homosexuality is morally acceptable, but follows instead from the separation of law and morals and the philosophy that the criminal law’s proper function is to protect others from harm by punishing harmful conduct. Private consensual homosexual conduct between adults does not cause harm recognisable by the criminal law. Thus, regardless of one’s personal view of the morality or otherwise of such conduct, it should not be made a criminal offence. " I think that those in the Council's majority who thought that s377a isn't justified, among others, should also be contacted for their assistance. This is what I think "beneficial rallying". Rallying our gay friends and supporters wouldn't be as beneficial.

Cheers,
Sunny

I think our rights have to be fought. The Indian LGBT community had fought and won an important victory when 377a had been removed across India. (New Delhi's court's decision on the constitutionality of a law applies across the nation, not just New Delhi). I suggest that those who had been fined (become a victim) under laws that they feel are discriminatory bring the case to court again.

"I suggest that those who had been fined (become a victim) under laws that they feel are discriminatory bring the case to court again." Totally agree. Street activism is also very important.