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IBAHRI condemns Singapore’s decision to uphold criminalisation of same-sex relations

Monday 6 April 2020

 

The International Bar Association’s Human Rights Institute (IBAHRI) expresses deep regret that a challenge to the constitutionality of Section 337A of the Republic of Singapore’s Penal Code outlawing any act of ‘gross indecency’ between men, was dismissed by Singapore’s High Court on 30 March 2020. Homosexual activity between adults has been illegal in Singapore since 1938 following the implementation of the Penal Code under British colonial rule. Any man found to be engaging in same-sex relations can be jailed for up to two years under the archaic law.

 

IBAHRI Co-Chair, the Hon Michael Kirby AC CMG, commented: ‘The plain fact of the matter is that provisions in the inherited colonial criminal law of Singapore stigmatise, isolate and punish lesbian, gay, bisexual and transgender (LGBT) citizens of that country for an indelible feature of their nature which they do not choose and cannot change. In this respect, Section 337A is similar to other provisions penalising people on the grounds of their race. Given the long history of criminal laws in several Commonwealth countries that discriminated severely against, and criminalised, people of the Chinese race, it is surprising and disappointing that such laws should be upheld today as compatible with the constitutional obligation designed to ensure equality of treatment of all citizens in the nation concerned.’

The former Justice of the High Court of Australia (1996-2009), Mr Kirby added: ‘If the more insightful and modern conclusion was available to, and adopted by, the Supreme Court of India in relation to the penal code provision that was the immediate historical source of the Singapore law provision in colonial times, it is a cause of sadness that a court in Singapore has not exhibited the same insight and courage. I hope that the decision will be corrected in an appeal. Given the many real problems that the world faces today, which emphasise the commonality of the human species, it is remarkable that such a modern state as Singapore continues to render a significant minority of its population, and others who work there, un-apprehended felons. The excuse given when an earlier attempt at legislative reform failed was that Singapore is a ‘’socially conservative’’ society. This is not a relevant reason for maintaining such antiquated and oppressive laws on the statute book. Courts have their own responsibility, where such laws deny equality to citizens, to strike them down and to consign them to the dustbin of history where they belong. Sadly, this decision shames the constitutional protections of Singapore. It is starkly contrary to a series of recent high decisions in high courts in Africa, the Caribbean and elsewhere. It should be corrected as quickly as possible.’

Three challenges were brought against Section 337A by Bryan Choong Chee Hoong, the former Executive Director of LGBT organisation Oogachaga, Johnson Ong Ming and Roy Tan Seng Kee. One claim made was that the anti-gay clause contravenes the right to speech and assembly. The Court denied this challenge by stating that this did not apply to ‘other acts’ and therefore could not be used to overturn the Section. In his ruling to uphold the law, Judge See Kee Oon used an analysis of the Oscar Wilde trial held in England 125 years ago. The unsuccessful result follows a previous failed attempt at legislative reform in October 2014, when the Singapore Court of Appeal declined to remove the country’s anti-homosexual law from the statute books, claiming that Singapore is a ‘socially conservative’ society.

IBAHRI Co-Chair, Anne Ramberg Dr Jur hc, commented: ‘The provision in Singapore’s Penal Code is extremely outdated, and upholds archaic principles with severe disregard to well-enshrined international human rights principles, including Article 2 of the Universal Declaration of Human Rights which ensures “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”’. She added: ‘It is with great shock and sadness that we observe this antiquated legislation being justified by a Court today. Whilst the Penal Code only refers to relations between men, it legitimises a dangerous culture of homophobia for the whole LGBT community in Singapore which is highly inconsistent with international standards. This decision is unfit for the modern world.’

In a statement by the Human Dignity Trust, the Trust’s Director Téa Braun warned: ‘The ruling will also echo harmfully around Asia, where millions of people are criminalised simply because of their sexual orientation or gender identity.’

The IBAHRI urges Singapore’s High Court to correct this decision as soon as possible. In addition to being in stark contrast to a series of recent rulings from high courts in Africa, the Caribbean and India, the decision violates the Court’s responsibility to deny inequality to citizens.

ENDS

Notes to the Editor

  1. In May 2010, the IBAHRI passed the Resolution on Sexual Orientation and Human Rights. The Resolution recognises that discrimination against anybody on the grounds of their sexual orientation and gender identity is contrary to fundamental principles of human rights. As a result of this recognition, the IBAHRI is committed to the repeal of criminal laws imposing penalties against people in respect of consensual, adult, private sexual conduct. Click here to read more:
    www.ibanet.org/Human_Rights_Institute/About_the_HRI/HRI_Activities/sexual-orientation
  2. Click here to view related items on the IBAHRI’s work in Singapore:
    www.ibanet.org/Human_Rights_Institute/Work_by_regions/Asia_Pacific/Singapore
  3. The International Bar Association’s Human Rights Institute (IBAHRI), an autonomous and financially independent entity, works to promote, protect and enforce human rights under a just rule of law, and to preserve the independence of the judiciary and the legal profession worldwide.
  4. The International Bar Association (IBA), the global voice of the legal profession, is the foremost organisation for international legal practitioners, bar associations and law societies. Established in 1947, shortly after the creation of the United Nations, it was born out of the conviction that an organisation made up of the world's bar associations could contribute to global stability and peace through the administration of justice.

    In the ensuing 70 years since its creation, the organisation has evolved from an association comprised exclusively of bar associations and law societies to one that incorporates individual international lawyers and entire law firms. The present membership is comprised of more than 80,000 individual international lawyers from most of the world’s leading law firms and some 190 bar associations and law societies spanning more than 170 countries.

    The IBA has considerable expertise in providing assistance to the global legal community, and through its global membership, it influences the development of international law reform and helps to shape the future of the legal profession throughout the world.

    The IBA’s administrative office is in London, United Kingdom. Regional offices are located in: São Paulo, Brazil; Seoul, South Korea; and Washington DC, United States, while the International Bar Association’s International Criminal Court and International Criminal Law Programme (ICC & ICL) is managed from an office in The Hague, the Netherlands.

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