SINGAPORE, Sept 12 — Arguing that Section 377A of the Penal Code — which criminalises sex between two men — is “absurd and arbitrary” against global developments that legalised same-sex marriages and decriminalised gay sex, a disc jockey here has filed a court challenge against it.
Johnson Ong, otherwise known as DJ Big Kid, submitted his papers to the High Court on Monday (September 10), reported The Straits Times yesterday.
In the court documents seen by TODAY, the Attorney-General is listed as the defendant in the case.
Represented by Eugene Thuraisingam and Suang Wijaya, Ong’s case will highlight the concept of human dignity, which was not argued in a previous challenge mounted in 2014. They will also adduce expert opinion, which was also not led in the 2014 case that was struck down.
Ong’s filing comes on the heels of veteran diplomat Tommy Koh’s comments last Friday where he called on the local gay community to mount another constitutional challenge to Section 377A after India’s supreme court struck down a similar law.
The case’s pre-trial conference will take place on September 25. TODAY has reached out to Ong for his comments.
The challenge this time round
Section 377A “violates human dignity”: Ong’s lawyers will argue that sexual orientation “is unchangeable or suppressible at unacceptable personal cost”.
They will adduce expert evidence which includes proof that same-gender sexual orientation (including identity, behaviour, and attraction) and variations in gender identity and gender expression are “a part of the normal spectrum of human diversity and do not constitute a mental disorder”.
If established that sexual orientation is unchangeable or suppressible, they will argue that the criminalising of consensual sex is a violation of human dignity and breaches Article 9(1) of the Constitution, which states: “No one shall be deprived of life and personal liberty save in accordance with law”.
The lawyers will also argue that there have been many changes and legal developments around the world since the October 2014 challenge was struck down.
Timeline of global changes
June 26, 2015: Same-sex marriage legalised in the United States
Aug 10, 2016: Belize’s supreme court struck down law that criminalises sex between members of the same sex
March 24, 2017: Taiwan’s constitutional court ruled that the constitutional right of equality mandated legal recognition of same-sex marriages
July 4, 2018: Hong Kong’s top court ruled that the immigration department’s refusal to grant dependency visas to same-sex couples was unlawful
September 6, 2018: India’s supreme court struck down Section 377 of its penal code, which criminalises gay sex
History of Section 377A challenges in Singapore
September 24, 2010: First challenge mounted by Tan Eng Hong, who was caught having oral sex with another consenting male in a locked cubicle in a public toilet. The case was thrown out a year later by the courts, but was later reheard, and dismissed.
November 30, 2012: Second challenge mounted by Lim Meng Suan and Kenneth Chee, a gay couple of 15 years. It was dismissed by the High Court.
October 28, 2014: Ruling against Tan, Lim and Chee’s appeal against the High Court’s decision, the apex court upheld the law criminalising sex between men. Judge of Appeal Andrew Phang, who heard the cases together with Justices Belinda Ang and Woo Bih Li, ruled that the guarantee of equal protection under the law as enshrined in Article 12 of the Singapore Constitution touched only on issues relating to religion, race, place of birth and descent, not gender, sex and sexual orientation. — TODAY