A retired general medical practitioner and longstanding activist for LGBTQI rights in Singapore has filed a constitutional challenge against Section 377A of the Penal Code—a law that criminalises sex between men—arguing that it is unconstitutional.

61-year-old Dr Tan Seng, known more commonly as Roy Tan, filed a case at the Singapore High Court on September 20 to challenge the constitutional-era law which criminalises acts of “gross indecency between men, with a penalty of up to two years imprisonment”, as he believes it is archaic and discriminatory.

Dr Tan, the main organiser of the first ‘Pink Dot’ event in 2009 which advocated for LGBTQI rights, told The Online Citizen the current law is having adverse effects on the ways gay men perceive themselves, both as individuals and as figures in Singapore’s society.

“This anachronistic law adversely affects the lives of gay men,” said Dr Tan. 

“By institutionalising discrimination, it alienates them from having a sense of belonging and purposeful place in our society, and prevents them from taking pride in Singapore’s achievements.

“On a personal and professional level, I am extremely concerned about the mental and physical health aspects of retaining Section 377A. In my practice I regularly see how the law can adversely impact the mental health of LGBT people, who frequently present with depression, social isolation and even suicidal tendencies.”

The Attorney-General has been listed as the defendant in the case filed with the High Court.

Dr Tan is being represented by human rights lawyer, M. Ravi from Carson Law Chambers, known for his involvement in numerous high profile cases relating to freedom of expression, LGBTQI rights and the death penalty. 

According to a statement seen by The Straits Times, Dr Tan asserts that Section 377A is inconsistent with Article 9 of the Constitution, which states that no person shall be deprived of his life or personal liberty in accordance with the law.

Dr Tan also cited the incongruence between Section 377A and Article 14 of the Constitution, which states that every citizen of Singapore has the right to freedom of speech and expression.

As well as inconsistencies between Singapore’s Penal Code and its Constitution, Dr Tan argues that there are inconsistencies around the Public Prosecutor’s discretion on whether to prosecute people under Section 377A of the Penal Code, and Section 14 of the Criminal Procedure Code. 

Section 14 requires the police to unconditionally investigate all complaints made concerning 377A, whether the acts occur in private or public. 

Dr Tan argued that an investigation against a person does not necessarily mean that person will be prosecuted, which also seemingly violates constitutional articles. 

“This subjects gay men to the potential distress of an investigation into private conduct where they have a legitimate expectation that the state will decline to prosecute,” Dr Tan stated.

“It represents not only a contradiction between the Public Prosecutor’s prosecutorial discretion and the non-discretionary carriage of criminal justice on the ground but is also a restriction on their personal liberty, which is not consistent with Article 9(1) of the Constitution.”

Speaking to The Online Citizen, Dr Tan confidently noted that India recently struck down their version of 377A, and that eight other countries have recently decriminalised same-sex relations, with Bhutan also in the process of doing so.

“I am eager to see this archaic law, which has no place in modern society, struck down,” said Dr Tan.

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