The Court of Appeal today has allowed two challenges filed by two sets of plaintiffs to be heard together.
The application to consolidate the two cases was filed by M Ravi, lawyer for Tan Eng Hong who first filed his constitutional challenge to section 377A on 24 September 2010 after he was arrested, charged and detained under the same law for performing oral sex on another man in a shopping center toilet.
Tan’s challenge was dismissed earlier this month by Justice Quentin Loh while gay couple Gary Lim and Kenneth Chee's challenge was dismissed by the same judge in April this year. Both parties are appealing the rulings. Lim and Chee's Court of Appeal hearing which is was originally scheduled on Monday, October 14, will be postponed.
Lim and Chee first filed their challenge in November 2012 following the Court of Appeal ruling by Judges of Appeal Andrew Phang, V K Rajah and Judith Prakesh who said that the current law extends to private consensual sexual conduct between adult males, it "affects the lives of a not insignificant portion of our community in a very real and intimate way."
The judgment also noted the difference between "no proactive enforcement" and "no enforcement" as the government declared in October 2007 that Section 377A will not be "proactively enforced". It further declared the constitutionality or otherwise of s 377A to be of real public interest and that the "continued existence of s 377A in our statute books causes them (gay men) to be unapprehended felons in the privacy of their homes.
The Court of Appeal, which comprised Judges of Appeal Andrew Phang and VK Rajah, and Justice Woo Bih Li, ruled today that the issues in the two cases are essentially the same and should be heard together.
M Ravi told the court that such a move would prevent the same questions of law and constitutional issues from being tried on separate occasions with potentially different results.
According to a statement from M Ravi, the Court of Appeal today made observations that if they should decide that Lim and Chee have no standing, given the fact that they were neither charged nor prosecuted under section 377A, unlike Tan, their appeal could be dismissed on that ground alone, without having to consider the main arguments of their case.
M Ravi, who has acted as Tan’s pro bono counsel in this matter for more than three years, said in a statement: “This gives greater hope for the s377A challenge to succeed because Tan was given standing by the Court of Appeal in 2012 when he won the previous appeal. This further reinforces Mr Tan’s critical role in the challenge to overturn this anachronistic legislation which is a sad remnant of colonial law.”
“Mr Tan has made immense sacrifices from all fronts to pursue justice and has been resolute in his belief that justice will be done and his fundamental rights will be protected under the constitution. He believes the Court will recognise his immutable personal sexual orientation and recognise his right to live with dignity in this society,” he added.
Lim and Chee, who had opposed this application to have the cases consolidated as well as Tan’s earlier application (which was later withdrawn) to intervene in their case, told Fridae that they hope for both legal teams to co-operate for the best outcome.
“We believe that both our case and Tan Eng Hong's share the same important cause and are working for the same objectives. We welcome the joining of his hearing with ours before the Court of Appeal and we expect that our legal teams will be in communication to ensure that both sets of arguments, while different, will complement one another in order to jointly put forward the strongest possible case to declare s377A unconstitutional,” Lim and Chee said through their spokesperson.
The hearing for both appeals is expected to be held early next year.
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Reader's Comments
Having sex manytimes in shopping centre can be inconstitutional or not
but there must be notice too.
I had sucked cock in public area once but then I realized, did I respect law? then i never done anymore
Mean gay should aware, and learned manytimes what public place for?
If One Religious Priest shouting for pray, heard by many people.
this must be noticed too, that the air is public area and should not be noise/loud except only once or by accident/ no regularity that still be accept
Gay should be aware to be sample for public
showing affection/ love to others without dismiss special acts.
this is equal justice
“We believe that both our case and Tan Eng Hong's share the same important cause and are working for the same objectives. We welcome the joining of his hearing with ours before the Court of Appeal and we expect that our legal teams will be in communication to ensure that both sets of arguments, while different, will complement one another in order to jointly put forward the strongest possible case to declare s377A unconstitutional,” Lim and Chee said through their spokesperson.
So, from an original position of rejecting Tan Eng Hong, the team behind Gary and Kenneth's appeal are now back-tracking and calling for both teams to co-operate? What sort of political game is Pink Dot playing here? Why didn't Pink Dot, who everyone knows is the puppet master in the Gary and Kenneth appeal, offer to join forces with Tan Eng Hong's counsel at the very beginning? I, personally, can't see any real sincerity from the political statements of the Pink Dot camp.
It's sad that Pink Dot didn't call for co-operation and a concerted fight at the very beginning. Instead, all Pink Dot has done is created a rift within the LGBT community between the well-connected and celebrity-studded Pink Dot camp and the rest of us ordinary LGBT plebians.
If I were Tan Eng Hong, I'd tell Pink Dot exactly where to go.
There is nothing further from the truth!
Tan was initially charged under 377A for oral sex in a public toilet. Using 377A is discriminatory because a straight couple caught doing the same thing can only be charged under Section 394a which carries a lighter penalty.
Only after human rights lawyer fought for Tan did the High Court amend Tan's charge to 394a and fine him $3000, the same as if a straight couple had been caught and punished.
Therefore, the toilet sex episode is over and done with and has no bearing on Tan's current constitutional challenge of Section 377A which discriminates against all MSMs in Singapore every time they have sex, even if consensual and in private.
Pink Dot is a social movement aimed at supporting the Freedom to Love, and celebrating equality and diversity in Singapore. We would like to clarify that as an organization, Pink Dot Sg has no involvement in either of the 377A legal challenges as suggested by some earlier posts. However we believe that this is an important issue and we wish all parties the best in their endeavours.
https://fbcdn-sphotos-b-a.akamaihd.net/hphotos-ak-ash4/1397443_615509685153867_1093860113_o.jpg
Joint hearing for gay sex law challenges
Hearing appeals at one go more efficient as both cases raise similar issues: Court
By SELINA LUM
THE appeals of the two separate challenges against the law that criminalises sex between men will be heard at the same time by a panel of three judges.
This was decided after 49-year-old Tan Eng Hong asked for his case to be put together with that of gay couple, Mr Gary Lim, 44, and Mr Kenneth Chee, 37.
This is the OCRed text of the article:
The Court of Appeal yesterday granted Mr Tan’s application for a joint hearing, explaining that both appeals raise essentially the same issues of law.
This means that Mr Lim and Mr Chee’s appeal, originally scheduled to be heard this coming Monday, will be pushed back to a later date.
Both Mr Tan and the couple contend that Section 377A of the Penal Code is unconstitutional.
Mr Tan was the first to challenge the law in 2010, after he was caught having oral sex with another man in a public toilet and charged under Section 377A.
Mr Lim and Mr Chee later filed their own challenge. The couple’s case was heard by Justice Quentin Loh in February. A month later, the same judge heard Mr Tan’s case. In April, Justice Loh dismissed the couple’s challenge, ruling that Section 377A did not violate the Constitution. Earlier this month, he also dismissed Mr Tan’s case.
Yesterday, Mr Tan’s lawyer, Mr M. Ravi, argued that it was efficient for both cases to be heard together instead of the court hearing the same issues twice.
He added that if all the arguments were presented at the same time, the matter could be considered comprehensively and not in a piecemeal manner.
Separate hearings could also potentially result in different decisions on the same issues, he said.
Senior Counsel Aedit Abdullah, from the the Attorney-General’s Chambers, objected to the application, arguing that the two cases involved different arguments. But Justice V. K. Rajah said that the core issues were probably similar.
The gay couple’s lawyer, Senior Counsel Deborah Barker, also argued against the application saying her clients preferred not to delay the matter and wanted to limit legal costs.
But Justice Rajah said that Mr Tan could argue that his case was being delayed even longer, with Justice Andrew Phang pointing out that he had been given the green light to pursue his case before the couple filed their challenge.
selinal@sph.com.sg
http://www.indiegogo.com/projects/fundraising-for-s377a-constitutional-challenge
At the bottom of the Gary & Kenneth indiegogo appeal is a list of people who sit on their fundraising committee. All are either supporters of Pink Dot or sit on the Pink Dot executive committee. Sylvia Tan is one of them. So, comment #19 is a blatant lie.
1. I am not directly involved in the s377A challenge by Gary nor Kenneth, just as I am not in the Article 12 group that you asked me to join recently.
2. I am one of the many people who supported the fundraising campaign by friends and supporters of Gary and Kenneth. The campaign listed is the Indiegogo campaign and not the overall campaign. Please read carefully to ensure you have the right info.
3. As editor of Fridae, I have the discretion to ensure that news published on the website is timely and relevant. I'd decided against publishing your group's (Article 12) recent press release as we had already covered the story a few weeks ago. Attacking me and the editorial integrity of Fridae would not change the way we continue to support the community through news reporting or in other ways.
Kind regards
Sylvia Tan
Editor, Fridae.asia
Trying to pull this stunt of using the Article 12 committee as a red herring is quite beneath you, don't you think?
"... the Court of Appeal today made observations that if they should decide that Lim and Chee have no standing, given the fact that they were neither charged nor prosecuted under section 377A, unlike Tan, their appeal could be dismissed on that ground alone, without having to consider the main arguments of their case".
According to the above report, this was the observation made by the Court of Appeal on 10 Oct 2013.
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