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The Constitutionality Of Section 377A In High Court


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Lawyer challenges gay sex law

by Leong Wee Keat 09:30 PM Sep 24, 2010

http://www.todayonline.com/Singapore/EDC100924-0000220/Lawyer-challenges-gay-sex-law

SINGAPORE - An application has been filed in the High Court to challenge the legality of Section 377A of the Penal Code, which criminalises gay sex.

A hearing will be fixed for the Court to rule whether the law should be deemed unconstitutional if the act is between consenting adults.

Lawyer M Ravi filed the legal action on Friday on behalf of his client Tan Eng Hong, who was charged for allegedly having oral sex with another consenting male.

In his eight-page application, Mr Ravi said, "The continuance of Section 377A on the statute book operates to brutalise a vulnerable minority segment of the citizenry for no fault on its point. A section of society has been thus criminalised and stigmatised to a point where individuals are forced to deny the core of their identity and vital dimensions of their personality."

His client is due to attend a pre-trial conference on Monday morning in the Subordinate Courts. With the application, though, Mr Ravi is also seeking for the higher court to "void" the charge brought against Mr Tan.

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People Like Us (PLU), the Singapore gay advocacy group posted the following release:

http://www.plu.sg/society/?p=169

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On the prosecution of Mr Tan Eng Hong under Section 377A and the challenge to the law’s constitutionality

Published by webmaster September 27th, 2010

On 24 September 2010, Mr M Ravi, a lawyer acting for Mr Tan Eng Hong, initiated a constitutional challenge to Section 377A of the Penal Code. This is the law that makes “gross indecency” between two men a crime in Singapore, punishable with up to two years’ imprisonment.

Mr Tan had been charged under Section 377A in connection with an alleged incident of sex in a shopping centre toilet.

People Like Us is not a party to this case and the associated constitutional challenge that Mr Ravi initiated. Moreover, as the matter is now before the courts, it is not appropriate for us to make any comments about the specifics of the case.

That said, People Like Us do not condone sex in public spaces where conflict with other members of society can occur. At no time do we say that these should not be prosecutable offences. We have however long held the view that should the State wish to prosecute, it should do so using gender-neutral laws, so that whether the specifics are same-sex or opposite-sex, there is parity in treatment.

It so happens that there is such a law — Section 20 of the Miscellaneous Offences (Public Order and Nuisance) Act. This law makes “indecent behaviour” in public an offence and is written in a gender-neutral way. It is regrettable that prosecutors have chosen to use Section 377A instead of this one, especially since the penalties are dissimilar. Section 377A mandates a prison sentence, but Section 20 gives the judge a choice of imposing a fine of up to $1,000, or a prison sentence of up to one month, or both, for the first offence.

Given the disparity in penalties, any decision to use Section 377A precipitates discriminatory treatment, and it is for this reason that People Like Us consider it an inappropriate law to use. Section 20 of the Miscellaneous Offences (public Order and Nuisance) Act being available, it is hard to understand why prosecutors are still choosing to use Section 377A; or what beliefs underlie the decision to perpetuate the use of this law.

Furthermore, Prime Minister Lee Hsien Loong declared in October 2007 that Section 377A will not be “proactively enforced”. The current prosecution of Mr Tan raises questions about what the Prime Minister meant when he said that. Even if the State does not actively seek out men who have sex with men to prosecute but rely instead on private security guards to report, such an argument ignores two important facts:

1. the State has discretion whether to charge them under Section 377A or another law;

2. the continued existence of Section 377A legitimises homophobia and the private vigilantism of security guards, who then take it upon themselves to do the proactive work that the State says it does not do.

Mr Tan should not have had to face a charge of Section 377A. Better yet, the government should take immediate steps towards legislative repeal. In the meantime, the Prime Minister’s October 2007 promise not to proactively enforce this law should be honoured through a total moratorium.

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YawningBread / Alex Au latched onto CJ Chan Sek Keong's article on "Judicial Review" and thinks aloud about the Judicial Review of the above Section377a filed in the HighCourt.

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http://yawningbread.wordpress.com/2010/09/28/chief-justice-speaks-about-judicial-review/#more-2426

Chief Justice speaks about judicial review

Published 28 September 2010

There was an elephant in the room.

Chief Justice Chan Sek Keong argued that there is no agenda by the courts here to cover up what is wrong in the law. He said this in an essay published in the September issue of the Academy of Law Journal, as reported by the Straits Times today:

Of the 79 judicial review cases since 1957, involving a wide variety of grievances from wrongful dismissal to tax assessment, 22 applicants succeeded in obtaining the court remedies they sought.

The figures showed the courts were not out to protect the mistakes of the public authorities at the expense of the public, said CJ Chan.

[snip]

CJ Chan made clear the courts have no agendas and their only mission is to do what is right in law.

He added that ‘we should look at the facts, rather than indulge in Chinese whispers about the allegedly poor state of judicial review in Singapore’.

He dismissed the notion held by critics that the courts here were submissive and, therefore, ignored wrongful executive acts.

Stressing that cases are decided on legal merit, he said a suit plainly succeeds where the public agency is found to be wrong, and fails where the applicant is wrong.

– Straits Times, 28 September 2010, Courts do not shield govt agencies: CJ Chan

Two things struck me:

Firstly, that there were only 79 cases of judicial review in the 53-year period from 1957. That’s about one or two a year, which seems very few compared to the thousands of interactions between people and government. There must be many instances where people are unhappy with government decisions; why don’t these get to the point where there is a legal challenge? What are the hurdles preventing people from suing the government for redress?

Secondly, from the examples and phrasing used, e.g. “mistakes of the public authorities”, and “wrongful executive acts”, the essay appears to address only certain kinds of cases — ones where administrative action allegedly fails to comply with law.

Yet, judicial review is much broader than that; it includes the courts passing judgement on whether political bodies and authorities comply with the law, and here “law” does not only mean statutory law made by Parliament, but the law that governs the actions of the legislature and political ministers.

The sidebar story reinforces this omission. It quoted the Chief Justice as saying:

Good governance, in my lexicon, refers to the institutional rules of procedure and decision-making process of administrative bodies in implementing government policies in accordance with the law, while ‘good government’ refers to pursuing good policies in building a modern successful society…

Judicial review deals with bad governance but not bad government. General elections deal with bad government.

– Straits Times, 28 September 2010, On Supreme Court’s role

Again he speaks of “administrative bodies… implementing government policies”.

This focus is too narrow, and that narrowness can be said to be proof of the submissiveness that critics accuse our courts of. The biggest problem in Singapore is not that our civil servants abuse their power or fail to follow correct procedure — it can happen occasionally, but there is no systemic failure. Instead it is politicians who systematically abuse their power in the making and the legislating of policy.

These include the bifurcated electoral system (why are some citizens in single-member constituencies and others in group representation constituencies?), the unevenness of constituency sizes (we’ve discussed the 30-percent variation in an recent article), media control and censorship, and detention without trial.

All these acts may be backed by legislation, but the question should be: Are these statutes lawful? Do they not violate one or more of the fundamental rights of citizens?

Yes, it is important that there should be judicial review of administrative decisions by civil servants, tested against enabling legislation and a general principle of fairness, but even more important in the Singapore context is reviewing actions of politicians. And yet, there’s a studied silence on this role of the courts.

It’s the elephant we pretend not to see.

The Chief Justice may boast that 22 of 79 judicial review cases (28 percent) were decided in favour of the applicant, but more important to me is what number of judicial review cases resulted in Acts of Parliament being struck down by the Supreme Court as being contrary to one more more fundamental rights enshrined in our constitution. I believe the answer is Nil.

* * * * *

This historical desert is the chief reason why I am not optimistic about lawyer M Ravi’s chances in his constitutional challenge to Section 377A of the Penal Code, launched 24 September 2010. Ravi is defending Tan Eng Hong, who had earlier been charged under 377A for allegedly engaging in male-male sex in a shopping centre toilet.

Most of the time, lawyers acting for clients charged under 377A choose the plea bargaining route if they are not confident of proving innocence in court; alternatively enter a mitigation plea after the client has pleaded guilty.

M Ravi is taking an unusual route, challenging the validity of the law in the first place.

Many in the gay community may feel rather conflicted about this, and mostly it’s about the public relations aspect of using this case as a springboard to a challenge. It is hard to defend toilet sex; in fact, People Like Us says quite explicitly that it does not condone it. There’s a concern that by using this case as a launchpad for a challenge, the general public may be led to think that striking down 377A will mean a blank cheque for toilet sex. This obviously is not so. Gay activists only want toilet sex regulated in the same say whether it is homosexual or heterosexual — it’s essentially an equality demand — by using a gender-neutral law, not by using 377A.

It’s akin to how 377A used to be applied to men making sexual advances towards boys. When Walter Woon was Attorney-General, he gradually put a stop to it, using the gender-neutral provisions of the Children and Young Persons’ Act or Section 376A of the Penal Code (Sexual penetration of a minor under 16). These are laws that apply whether it’s a man taking sexual advantage of an underaged girl, a woman having sex with an underaged boy, a woman with a girl or a man with a boy. And that’s how it should be. Dropping 377A in such cases did not mean we would do nothing about underaged sex; it only means we treat all forms of underaged sex in an even-handed way.

377A is an inherently discriminatory law because it is gender- and sexuality-specific, and M Ravi is not wrong to challenge it, even when the case is one involving toilet sex, the public-relations nightmare notwithstanding. The issue is not toilet sex; it is the continued use of a discriminatory law.

He also has plenty of precedents from other jurisdictions in his favour. I cannot think of a single court in any country with a robust judicial system affirming an anti-gay law like 377A in the last 20 years.

I suspect though that the Singapore courts will affirm it. What conclusion should we then draw? That Singapore’s legal system is special, or that we do not belong to the same class of countries with robust justice systems?

The Chief Justice may soon get a chance to demonstrate his words with action.

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UN officials urge countries to remove criminal sanctions based on sexual orientation

I hope this country can move on and not be stuck in some gay discriminatory laws. Even the United National has called for the removal of such laws.

http://www.un.org/apps/news/story.asp?NewsID=35976&Cr=sexual&Cr1

UN officials urge countries to remove criminal sanctions based on sexual orientation

17 September 2010 – Top United Nations officials today appealed to all countries that criminalize people on the basis of their sexual orientation or gender identity to reform such laws and to ensure the protection of basic human rights for all.

“No doubt deeply-rooted cultural sensitivities can be aroused when we talk about sexual orientation. Social attitudes run deep and take time to change. But cultural considerations should not stand in the way of basic human rights,” said Secretary-General Ban Ki-moon.

In a message to a panel discussion in Geneva on ending violence and criminal sanctions based on sexual orientation and gender identity, which was delivered by UN High Commissioner Navi Pillay, Mr. Ban noted that the responsibilities of the UN and the obligations of States are clear.

“No one, regardless of their sexual orientation or gender identity, should be subjected to torture or to cruel, inhuman or degrading treatment. No one should be prosecuted for their ideas or beliefs. No one should be punished for exercising their right to freedom of expression.”

In May, during a visit to Malawi, the Secretary-General called for laws criminalizing people on the grounds of sexual orientation and gender identity to be reformed worldwide. Such laws, he noted, fuel violence, help to legitimize homophobia and contribute to a climate of hate.

While in Malawi, he had also lauded the “courageous” decision by the country’s leader to pardon a gay couple who had been sentenced to 14 years in prison, voicing hope that the African nation will update its laws to reflect international standards.

Ms. Pillay noted in her own remarks that, despite significant progress made in a number of States, there is still no region in the world today where people who are gay, lesbian, bisexual transgender or intersex (LGBTI) can live entirely free from discrimination or from the threat of harassment and physical attack.

“But in 78 countries, individuals still face criminal sanctions on the basis of their sexual orientation or gender identity,” she told the event, which was held on the sidelines of the 15th regular session of the UN Human Rights Council.

“We should be looking for ways to ensure that everyone enjoys the full protection of international human rights law, not for grounds to justify excluding certain individuals.”

She said the first priority should be decriminalization worldwide, which should be accompanied by greater efforts to counter discrimination and homophobia, including both legislative and educational initiatives.

“If we are all entitled to the full range of human rights and to equal protection of the law then, I believe, it can never be acceptable to deprive certain individuals of their rights, indeed to impose criminal sanctions on those individuals, not because they have inflicted harm on others or pose a threat to the well-being of others, but simply for being who they are, for being born with a particular sexual orientation or gender identity.

“To do so is deliberately to exclude a whole lot of people from the protection of international human rights law. It is, in short, an affront to the very principles of human rights and non-discrimination,” she stated.

Edited by Roger
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Everone knows the UN is an old out dated white elephant with dentures that fall off when it wants to enforce any action , an old dog with a lot bark noisy but no bite.

So what if you put up a long page with lotsa words about the UN declaration about equality , most countries just ignore it. Maybe if you like UN headuqters in Geneva and live in Western countries ,

Just look at all the past mass genocide in Darfur, Sudan and many other countries , Ban ki MOOn announces UN condemns and strongly oppose these mass murders but waht else can it do.

The UN is like a observer in protected glass bowl, people working for UN have high quality good life , living In New York and Geneva , some even get to siphon off fundings meant for development projects by over inflating their expenses and the claiming it from the UN.

Wake up people the UN is hopeless in today's world .

In fact , the UN became irrelevant from President's Ronald Reagans era onwards, after Glasnost and perestroika , the UN really was not doing anything except wining and dining and holding big conference so that its delegates can produce lotsa hot gas and contribute to green house by jetting around the world and doing and acieving nothing,

Ptooi.

As for singkapore, any oppostion is like ants , biting on the thick skins of elephants eventually these ants would be crushed and nobody would care, hahahaha

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  • 1 month later...

I repost here 2 articles.

- One by the lawyer M Ravi on bringing the constitutionality challenge of Section 377A.

- Alex Au aka YawningBread's views

----------------------------------------------------

http://theonlinecitizen.com/2010/11/anti-gay-laws-continue-to-be-used-selectively-despite-assurances-m-ravi/

Anti-gay laws continue to be used selectively, despite assurances – M Ravi

Posted by theonlinecitizen on November 19, 201019 Comments

by M Ravi

Laws criminalising sexual intercourse between consenting gay men have been done away with in most countries with the exception of 15 Muslim countries. Singapore is the only non-muslim country that retains this queer position. Singapore is also the only country where same sex is defined as “male” to “male”. The equivalent of our Section 377A is Section 377 in Malaysia and India which is not male gender specific. Here despite gender-neutral provisions prohibiting sex in public places, and despite assurances from the highest levels of government, Section 377A continues to be used selectively against gay men. The provision reads as follows:

“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.”

In 2007, a parliamentary petition to repeal 377A on the grounds that it is inconsistent with Article 12(1) of the Constitution (that all persons are equal before the law) was submitted. A wide-ranging debate occurred across the nation, with even Minister Mentor, Lee Kuan Yew wading into the fray,

“If in fact it is true, and I have asked doctors this, that you are genetically born a homosexual – because that’s the nature of the genetic random transmission of genes – you can’t help it. So why should we criminalise it?…let’s not go around like this moral police…barging into people’s rooms. That’s not our business.

That previous year, the Home Affairs Ministry announced that, although anal and oral sex in private between consenting heterosexual adults would be decriminalised as part of the first major overhaul of the penal legislation in 22 years, it would retain the ban on sexual acts between men. In his concluding speech on the debate over the repeal of Section 377A, Prime Minister, Lee Hsien Loong, told MPs before the vote,

“Singapore is basically a conservative society…The family is the basic building block of this society. And by family in Singapore we mean one man, one woman, marrying, having children and bringing up children within that framework of a stable family unit.”

But, the Home Affairs Ministry added in relation to the Penal Code overhaul, that it would not be ‘proactive’ in enforcing this law against consensual acts that take place in private.

In November, I launched a constitutional challenge on behalf of my client which is now before the High Court to be heard on 7th December 2010 at 10.00 a.m. The Deputy Public Prosecutor subsequently amended a 377A charge to the gender-neutral Section 294, which reads:

“Whoever, to the annoyance of others —

(a) does any obscene act in any public place; or

(b) sings, recites or utters any obscene song, ballad or words in or near any public place,

shall be punished with imprisonment for a term which may extend to 3 months, or with fine, or with both.”

This amendment of the charge took place after the filing of the constitutional challenge. It is understood the DPP said that, after considering the facts, the charge was being ‘recalibrated’ from 377A to 294. It is not clear what deliberations went on because the facts of the case were very straightforward: two men are caught having sex in a public toilet. A penal system that is gender and sexuality-neutral and allegedly does not ‘proactively’ deploy 377A would naturally have turned to 294. The DPP on the other hand needed time to recalibrate.

Had it forgotten the official pronouncement on not ‘proactively’ enforcing? Would it have retained the same charge had the case been conducted in a more low-key way?

In 1998, Mr Lee Kuan Yew said that the issue of gay equality is up to society as a whole, not for the government to decide.

So, taking stock, we have a government that explicitly acknowledges that homosexuality is a genetic predisposition. The same government that will not ‘proactively’ enforce 377A. The same government that, since 2003, has no longer barred gays from sensitive positions in the civil service. Whose Prime Minister said,

“And our job as a government is to create an environment, and manage an environment in which there’s maximum space for each person, each view…for each person to live his own life without impinging on other people.”

And yet, we still find 377A being used to prosecute. Is a double standard operating? Is the government trying to play both constituencies – gays and straights – off each other? Or is this just a case of rogue police and DPP officials allowing their own anti-gay, locker-room prejudices free rein?

Therein, as Shakespeare says, lies the rub. If a provision exists on the statute book that explicitly expresses the prejudices of a certain section of people, then you give carte blanche to those who would use it to further their own value system, regardless of how inimical this is to a modern, intelligent and thinking nation.

And make no mistake about it, Section 377A is, fundamentally, a provision of the law that falls in the category of laws that express human prejudices. Like the laws that once prohibited marriage between persons of different races in the United States and South Africa. Laws that prevented Jews from going to Oxford University. Or women from sitting in the House of Commons. Or operating as lawyers. Or voting. Laws that once prevented coloured people from entering the Cricket Club.

(After all, have you ever wondered why lesbians are not included in 377A legislation all across the Commonwealth? Because Queen Victoria refused to believe that they were capable of such behaviour!)

377A is a law that expresses such a prejudice and has no bearing whatsoever on national security or public safety. If it had, then the Home Affairs Ministry would never have said that it does not ‘proactively’ deploy it. So, we must conclude that the law remains on the statute book for other purposes. What they are we cannot discern, since the government does not make its views explicit other than to hint that it does not wish to upset the majority.

Having such a law then entitles this same majority to conclude that there is something morally unacceptable about being gay, regardless of the vast body of international scientific opinion that clearly knows it to be genetic. It entitles the majority to discriminate. It entitles the government to categorise national servicemen as being in ‘Category 302’, a medical code assigned to personnel who are homosexuals and upon which their future in the service of their nation is determined. It entitles the authorities to then refer them to the Psychological Medicine Branch.

It entitles the Registrar of Societies to refuse registration to groups whose aim is to assist and support gay men and lesbians.

It enables the Ministry of Community Development, Youth and Sports to grant S$100,000 to the Liberty League, an organisation affiliated with the so called ex-gay movement which promotes ‘healing’ from homosexuality’, a particularly odious form of ‘therapy’ which carries tremendous psychological dysfunction in its wake.

It entitles the Media Development Authority to ban positive imagery and depiction of homosexuality from being portrayed.

Far from approaching the issue in a mature and liberal way, befitting a nation that prides itself on being part of the First World, Singapore continues to languish with the rump of countries that sees nothing wrong with retaining on its statute book, an ancient, irrelevant, discriminatory, and (according to the Constitution) illegal provision. A provision that then allows policemen and public prosecutors to give free rein to their personal prejudices if they choose to.

This is the first time a constitutional challenge is mounted against Section 377A in Singapore. This challenge is long overdue but never too late. Featuring straight, bisexual, lesbian, gay and transgender, the forum will try to disentangle the issues surrounding this contentious question, and examine what can and need to be done if the ongoing discrimination against gay and bisexual men is not to continue so late into the modern age.

The present constitutional challenge is one of a public interest litigation as it involves civil liberties of affected citizens. The forum is open to all concerned persons, gay or straight, who are not satisfied if their government holds a provision on the statute book that it allegedly has no intention of using. Because to do so is to hold a power in reserve. To be used when preferred. It is a form of legal terrorism, to keep a section of the community in constant fear of being disenfranchised, of being annihilated.

———————–

M Ravi is a human rights lawyer and anti-death penalty activist. He will be speaking at a forum – 337a: Where did it come from and where should it go – on 27th November. Details of the forum is as follows:

Name: 377A – Where did it come from and where should it go

Date: Saturday, 27th November 2010

Time: 3pm to 6pm

Venue: The Public House, 42 Circular Road, Boat Quay

Speakers:

1. Mathia Lee

2. Vincent Vijeyasingha

3. Amy Tachiana

4. Hedrick Kwan

5. M. Ravi

Moderator: Mathia Lee

Contact: M. Ravi

Phone: 65337433

Fax: 65324301

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From Alex Au's YawningBread blog

http://yawningbread.wordpress.com/2010/11/21/romantic-rabble-v-coy-court/#more-2642

Romantic rabble v coy court

Published 21 November 2010

I had to force myself to read beyond the first sentence. “Laws criminalising sexual intercourse between consenting gay men have been done away with in most countries with the exception of 15 Muslim countries,” it said. It was patently wrong.

There are over 70 countries with laws criminalising same-sex relationships between men. Many of these countries do not have a Muslim majority; some of them have hardly any Muslims at all. On the left is a table of a randomly-picked sixteen of those countries.

The offending sentence came from a media release issued by lawyer M Ravi, announcing a forum that he is convening to discuss his challenge to the constitutionality of Section 377A of the Penal Code — Singapore’s anti-gay law. I cannot agree more that this piece of legislation should be demolished, but going about it by waving erroneous statements is highly embarrassing. You can see his full statement at The Online Citizen.

Further down the text one finds a rehashing of the Queen Victoria legend:

After all, have you ever wondered why lesbians are not included in 377A legislation all across the Commonwealth? Because Queen Victoria refused to believe that they were capable of such behaviour!

Lots of people cite this, but I have yet to see anyone provide substantiation for this claim.

On the contrary, a cursory examination of the circumstances that gave rise to the UK’s Criminal Law Amendment Act 1885 would provide a far better reason why this part of the Act was only targetted at males. Britain was then in the grip of a moral panic about the extent of prostitution. At the time, it was legal to have sex with teenage girls as young as thirteen, while a thriving trade buying and selling girls for prostitution mortified many middle-class citizens. The Criminal Law Amendment Bill was thus drafted in 1881 to combat this. However, it languished for four years until a new scandal in July 1885 — a newspaper undertaking investigative journalism managed to buy a girl – roused parliament into renewed action. Then, late on 6 August 1885, a member of parliament, Henry Labouchere, proposed an amendment to the bill making “gross indecency” between males an offence. There was hardly any debate and the proposed amendment was tacked onto the full Criminal Law Amendment Bill. The full bill was passed on 14 August 1885.

Without a record of a debate, it is difficult to know what the UK Parliament’s intention was with respect to the “gross indecency” clause. But if you consider that the Amendment Bill as a whole was designed to address prostitution and human trafficking, and if you realise that not only was female prostitution rife, so was male prostitution, one can more or less guess why. The main part of the Criminal Law Amendment Bill was gender-specific about girls as victims. Without the Labouchere Amendment, it would not have addressed male prostitution at all.

Our Section 377A is descended from the Labouchere Amendment. I really think we should let the queen off the hook.

Between the “15 Muslim countries” claim and the bit about Queen Victoria, I fear that careless errors like these damage the credibility of the entire exercise.

* * * * *

Beyond these two points, I concur with the rest of Ravi’s media release — in other words, the bulk of it.

Indeed, as he wrote, a double standard is operating. Indeed, “if a provision exists on the statute book that explicitly expresses the prejudices of a certain section of people, then you give carte blanche to those who would use it to further their own value system”.

Undoubtedly, “Having such a law then entitles this same majority to conclude that there is something morally unacceptable about being gay . . . . It entitles the majority to discriminate” and I myself have argued that it “entitles the Media Development Authority to ban positive imagery and depiction of homosexuality from being portrayed.”

Yet I have concerns, and these concerns pivot on what is needed to convince a court.

Challenging the constitutionality of a piece of legislation is a dry and highly technical exercise. As law professor Michael Hor has written, the way to test a law against the fundamental right of equality is to look at it from the perspective of “fit” and “weight”. Does the classification that the law creates fit the purported aims of the law? Is the social problem the law purports to address weighty enough to justify legitimate state action of a discriminating manner? If the answer is No to either one, then the law becomes suspect enough to be struck down.

Unfortunately, much of what was in the media statement is tangential to these key questions. Instead, they are broadbrush claims of the side effects of the law. This is not to say that they are irrelevant and inadmissible. They can be admissible — if they are well supported by evidence.

And herein lies the problem. How do you prove all those claims? How, for example, is one to get the top honcho in the Media Development Authority to tell the court that he and his staff feel entitled to censor in a discriminating fashion because of the existence of Section 377A?

I’m not saying that these discriminatory side effects aren’t real; they are, but a distinction should be made between what a reasonable person can surmise as cause and effect and what is needed to obtain a finding of fact from a court.

For example, Tan Ah Ter is believed to have killed his wife. The marriage had been rocky for a few years. He has a quick temper and has hit her before. He was the sole beneficiary of her insurance policy. He remarried — to a much younger Sichuan girl — within three months of his first wife’s death. Most people will say he is the likely perpetrator, but for the court to convict him, one still needs forensic evidence, a confession, or at least much closer circumstantial evidence than the above.

Working people up to demand that the court delivers a decision the way one wants is not going to get us that decision. It would be a sad day if rabbles on the steps of a courthouse determine legal judgements.

* * * * *

Legislatures have more latitude than courts. Where the judicial process demands evidence and verification, legislatures can reflect the balance of opinion and the force of logic. Consequently, the marshalling of public opinion matters as much the marshalling of reason when a matter is before the legislature.

* * * * *

There is one more aspect about constitutional challenges that seems to have been lost in all this, and it is this: As much as it hinges on the technicalities of the law, it hinges too on the personalities of the judges.

The Naz Foundation challenge to India’s Section 377 took place in the Delhi High Court, not by accident, but by design. The plaintiffs looked around India and decided that the Delhi court was the most gay-friendly one, and there they launched the case.

Or take the challenge to Proposition 8 in California. Why was it lodged with the Northern California District Court based in San Francisco? Why not the Central California District Court in Los Angeles or the Southern California District Court in San Diego? I assure you, it was not random.

Constitutional challenges are highly strategic exercises. The best possible plaintiffs are found by advertising in the media; seldom does one use plaintiffs that the police have chosen for you by way of arrest. The timing and location of the challenge are carefully considered to maximise one’s chances.

In tiny Singapore, we can’t choose the location of the court, but we can still choose the timing. Is the bench open-minded enough to give it a fair shot? If not, what about a future bench? Well, consider this: In a recent case, the fundamental right to freedom of expression was tested against the State’s application to convict Alan Shadrake for contempt of court. I think we all know how that one turned out. What makes an argument riding on the fundamental right to equality any more likely to impress our coy judges?

* * * * *

In short, it is this: I agree that Section 377A is bad law and should go. I agree it has all the prejudicial and discriminatory effects as enumerated in the media release. Call a forum and you might rouse several more to agree. Without doubt, it’s all very romantic, but it won’t substitute for the careful assembly of a legal case. That takes punctilious preparation and attention to detail, not sweeping statements that are confoundingly wrong. Charging madly like the Light Brigade towards cowering judges does not a good case make.

As French Marshal Pierre Bosquet, commenting on the bravery of the misguided British cavalry during that incident in the Crimean War, said, “C’est magnifique, mais ce n’est pas la guerre.” (It is magnificent, but it is not war.)

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  • 9 months later...

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)

Thanks,

Roy.

Edited by groyn88
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He is human rights lawyer M. Ravi's client.

Tan Eng Hong is a gay Singaporean who, like all of us, has standing to challenge the constitutionality of Section 377A.

Please support him and Ravi by turning up at the Court of Appeal on Tuesday, 27 Sep 11 at 10 a.m.

Thanks.

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this tan eng hong sucked cock in CITY LINK MALL toilet. well, he was fined $3000, well, he shd be fined $30 000 instead of making gays look like sex starved manics in a common place where people go to do business. what point if this M Ravi trying to do? that gays can have sex in shopping center toilets?

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The toilet sex part of the case is over and done with.

The current constitutional challenge is a civil case and the only relevant factor to consider is whether Section 377A discriminates against gay men.

It obviously does because oral and anal sex between straight couples and lesbians is legal while the exact same acts between men is not.

Therefore, 377A is unconstitutional because it Article 12 of the constitution states that all persons are equal before the law.

Don't be waylaid into thinking that the toilet sex background of the case is relevant to this constitutional challenge. It isn't!

That part is completely over.

Only the discriminatory factor will be considered on 27 Sep 2011 at the Court of Appeal.

Cheers,

Roy.

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For your information, with 377A in existence, you yourself are a criminal!

In any case, there are other laws, eg. Section 294 which prohibit sex in public, whether by straight or gay couples and these are non-discriminatory.

The upcoming case by M. Ravi does NOT attempt to make toilet sex by gays legal. It attempts to prove the unconstitutionality of Section 377A which discriminates against gay men even when they have consensual sex in private.

Therefore, you should support Ravi and his client.

Cheers,

Roy.

Edited by groyn88
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Guest Stupid fool
oh yes!!! hope he wins so we can suck cock in shopping mall toilet!!. as long a criminal is linked to this, sorry, i wont support as i will not want ppl to link gays=toilet sex.

Pure stupid fellow who do not understand what is going on!

We are talking about equal rights here! Not asking that we should be allow to suck cock in public u fool!

Just because the person who challenge the law have a case earlier means his current issue is link to his previous case? So u gay means u will die of aids? Duh!!!!

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there is no need for you to start any name calling here. pure stupid fellow? lol. 1st of all, you shd respect your fellow gays here by following the basic rules of Blowing Wind. 2nd, everyone is entitled to our views. if you wanna shout and support M Ravi and that guy who was fined $3000 for sucking cock in toilet, go ahead and enjoy yourself. but do not tell us you are a 'better, clever' gay than anyone of us who do not support that. if u want the poster boy of Gays in singapore represented by Tan Eng Hong who sucked cock in shopping mall toilet, go ahead. do not expect most to support you, and please do not shaft your rhetoric down our throats.

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there is no need for you to start any name calling here. pure stupid fellow? lol. 1st of all, you shd respect your fellow gays here by following the basic rules of Blowing Wind. 2nd, everyone is entitled to our views. if you wanna shout and support M Ravi and that guy who was fined $3000 for sucking cock in toilet, go ahead and enjoy yourself. but do not tell us you are a 'better, clever' gay than anyone of us who do not support that. if u want the poster boy of Gays in singapore represented by Tan Eng Hong who sucked cock in shopping mall toilet, go ahead. do not expect most to support you, and please do not shaft your rhetoric down our throats.

You kept repeating "suck cock in toilet" and if the guy intended to do it publicly, in open view so that everyone could watch?

I believe many people have sucked cock in public area too but they do it "in private". Throw a stone in BW and you are likely to hit someone who did that. I see nothing wrong sucking cock, in a mutually agreed fashion, in the privacy behind locked door whether at home or in public toilet. How the guy got caught was due to some busy-body and nosey individual making a fuss out of gay people. Tan E H incident is no different from the most appalling encounter happened many years ago in Changi Village. A policeman disguised as gay to flirt another gay and than charged him for being gay.

I have seen straight couple fxxking in public park, on roof top carpark under daylight and many have seen two women hanky panky in train. Were they dragged to court and charged? So you get the drift why unfairness need to be sorted here and the repeal for 377A is necessary? Why must two-men having sex (in public or private) be seen as crime.

You still believe 377A is necessary thinking our systems is flexible with it? It is this flexibility that is frightening. Got the drift yet?

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this tan eng hong still goes round sucking cock in public toliet even he was fined $3000?hope ravi dun get him involve in the campaign.it will bring more shame to us if he were caught 2nd time again.

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like you said many years ago. many years ago policeman wear shorts. now got police do that in recent years? yes, he sucked cock in a shopping mall toilet, a mall that has straight men, gay man, teenagers and children. if u agree with toilet sex or gays to have the right to suck cock in a toilet cubicle while another straight men or child pang sai in next cubicle, than go and fight your cause, will you also fight for him to moan and groan as loud as he want when he suck cock in public toilet?. and please, i did not say say 377a is necessary, do not anyhow say hor or our system flexible. yes i kept saying suck cock in toilet, did he not do that n got caught fine fined $3000? if a str had toilet sex and got caught but police set them free, than we can all go n complaint. i say again, i do not want and will not support for him to be the poster boy for gay rights, a man who kena caught sucking cock in city link toilet. what does that say abt us and how can he represent us? that we love sex in toilet? that we so desprate anywhere can have sex? cont the sterotype of gays in public eyes. lol.

Edited by gstc82
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like you said many years ago. many years ago policeman wear shorts. now got police do that in recent years? yes, he sucked cock in a shopping mall toilet, a mall that has straight men, gay man, teenagers and children. if u agree with toilet sex or gays to have the right to suck cock in a toilet cubicle while another straight men or child pang sai in next cubicle, than go and fight your cause, will you also fight for him to moan and groan as loud as he want when he suck cock in public toilet?. and please, i did not say say 377a is necessary, do not anyhow say hor or our system flexible. yes i kept saying suck cock in toilet, did he not do that n got caught fine fined $3000? if a str had toilet sex and got caught but police set them free, than we can all go n complaint. i say again, i do not want and will not support for him to be the poster boy for gay rights, a man who kena caught sucking cock in city link toilet. what does that say abt us and how can he represent us? that we love sex in toilet? that we so desprate anywhere can have sex? cont the sterotype of gays in public eyes. lol.

After reading your comments, all i can say is, I really feel very sad and sorry for you.

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Just ignore gstc82.

Do a search on all his posts and read (especially) those in the Flaming Room.

gstc82 is known for being a fragile and oversensitive whiner suffering from Princess Sickness (公主病).

kthxbai

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Are we not allowed to have our own views? And u do not even borther to register as a member. Lol. Who is the one geting all upset?not me. Its so obvious u had an agenda besides 377a. u think bw is some political site? Lol. So uptight. Calls to ignore me? i thawing your plans or agenda n hit a valid point?

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Roy or whoever u r, why did you left our tan"s record of toilet sex in citylink mall? why? Why did u use his initials instead of his full name? Becos u think we have short memory as his case was abt 2years ago? Well, just happen that i remember this case. your original post made it sound like tan is fighting for equal rights for gays. Fine by me, byt why left out his dirty little secret? Sd hd u not be truthfull to us instead of letting me do that for u. do not hijack 377a for your political causes, n gays r not as dumb as u think. N r u the same.stalker?

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Roy or whoever u r, why did you left our tan"s record of toilet sex in citylink mall? why? Why did u use his initials instead of his full name? Becos u think we have short memory as his case was abt 2years ago? Well, just happen that i remember this case. your original post made it sound like tan is fighting for equal rights for gays. Fine by me, byt why left out his dirty little secret? Sd hd u not be truthfull to us instead of letting me do that for u. do not hijack 377a for your political causes, n gays r not as dumb as u think. N r u the same.stalker?

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Please let us keep to the topic of 377A and its relation to the consitution.

Whoever sucks cock in whatever toilet is irrelevant.

Also, everybody has made mistakes in their lives. I for one compliment Tan Eng Hong for his courage in publicly challenging the status quo.

We see things not as they are, but as WE are - The Talmud

When the student is ready, the teacher will appear - The Buddha

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You kept repeating "suck cock in toilet" and if the guy intended to do it publicly, in open view so that everyone could watch? I believe many people have sucked cock in public area too but they do it "in private". Throw a stone in BW and you are likely to hit someone who did that. I see nothing wrong sucking cock, in a mutually agreed fashion, in the privacy behind locked door whether at home or in public toilet. How the guy got caught was due to some busy-body and nosey individual making a fuss out of gay people. Tan E H incident is no different from the most appalling encounter happened many years ago in Changi Village. A policeman disguised as gay to flirt another gay and than charged him for being gay. I have seen straight couple fxxking in public park, on roof top carpark under daylight and many have seen two women hanky panky in train. Were they dragged to court and charged? So you get the drift why unfairness need to be sorted here and the repeal for 377A is necessary? Why must two-men having sex (in public or private) be seen as crime. You still believe 377A is necessary thinking our systems is flexible with it? It is this flexibility that is frightening. Got the drift yet?

Do pray tell what is your definition of private and public space, if you don't already know a public toilet is a public area , that is why it is called a public toilet.

Even if you closed the door and locked it the space inside is still within the public toilet area , that is why if you are caught , you can be arrested on the spot.

For you own home , they would need a warrant of arrest and the power to enter into an owner's home.

So who is the best person to be a poster boy for the gay group, KUMAR, i shudder.

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yes i agree Kumar should be the best person to be poster and fight for 377 A . not that idoit Tan eng hong who still never learn his leasson. still can spot him at toliet cruising for victim to suck.

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I did not mention the background of Tan Eng Hong's prior criminal conviction in the main article because it has no relevance to the current constitutional challenge, which is a civil case, not a criminal one.

However, I included 5 references for further reading after the main article which would have told you about the background.

The only issue of relevance in the upcoming constitutional challenge is whether Section 377A discriminates against gay men... and it obviously does.

It does not matter who the "poster boy" for the constitutional challenge is. Tan Eng Hong is a gay man and that is enough to represent all of us.

Cheers,

Roy.

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It is impt for u to tell us all facts relating to this case. His conviction is most impt. He want 377a crushed for what reason? To really ment for our well being as.a.community or for.his own reasons that his toilet sex r

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It is impt for u to tell us all facts relating to this case. His conviction is most impt. He want 377a crushed for what reason? To really ment for our well being as.a.community or for.his own reasons that his toilet sex record will be erased. n sorry i do not trust m ravi due to his association with alan shadrake. Most impt, yes i do bot want the face of anti 377a be a convicted public sex offender. Thats just my views, others can feel free to support or not. But ALL FACTS must be presented as i still do not understand why u hide his past n use his initials instead. Thank gdness i have excellent memory if not duno how many will unwillingly support a convicted public sex offender who sucked cock in high traffic area of citylink mall, not some ulu mall that no one goes.

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Suckling pig, i m not against tan as a man. He made a mistake, hope he wont do it again. What is impt here is why was this crucial fact kept secret from us? This is impt as its our community"s image. We qant to b accepted, do we need to provide the bigots out there any more ammo to shoot us down by saying "hey, toilet cock sucker want to legalise gay sex,.u see so desprate, i say do cont w 377a if nit these ah qua will suck cocks in all shoping malls, our children n husbands will not be save!" Roy shd not hide the fact. Be open n let us decide if we want to support him or not.

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n sorry i do not trust m ravi due to his association with alan shadrake.

Right... now we know why the vehemence against Ravi and Tan Eng Hong... :whistle:

What else can we expect from an anti-PAP 公主 like gstc82? :ph34r:

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Suckling pig, i m not against tan as a man. He made a mistake, hope he wont do it again. What is impt here is why was this crucial fact kept secret from us? This is impt as its our community"s image. We qant to b accepted, do we need to provide the bigots out there any more ammo to shoot us down by saying "hey, toilet cock sucker want to legalise gay sex,.u see so desprate, i say do cont w 377a if nit these ah qua will suck cocks in all shoping malls, our children n husbands will not be save!" Roy shd not hide the fact. Be open n let us decide if we want to support him or not.

To prove the law is discriminating gay people with S377A, you need to prove you have been discriminated by it to support the case. Tan is the best person for the job since he was already been charged. Just like a raped victim need to stand out herself to provide strong testimony to her case. It cannot be her mother, sisters or other poster celebrity to stand up for her. This is not a president election or Charity show

You can safely say you touch cock, being sucked, lick ass, kiss lips all done ethically and quietly at the consent of both party, without intruding others in public area. However, S377A is not selective in how or where you did it. All it says is as long as you are involved with another men (in private or public), you are not spared the rottan, Nobody in BW is safe from such biased law.

If Tan did not stand out, which victim in the past will do so boldly? This is the best opportunity while the case is fresh and we have a learned lawyer behind it.

As such, I urge you to stop attacking an individual who might just save your ass someday if S377A is successfully repealed.

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Suckling pig, i m not against tan as a man. He made a mistake, hope he wont do it again. What is impt here is why was this crucial fact kept secret from us? This is impt as its our community"s image. We qant to b accepted, do we need to provide the bigots out there any more ammo to shoot us down by saying "hey, toilet cock sucker want to legalise gay sex,.u see so desprate, i say do cont w 377a if nit these ah qua will suck cocks in all shoping malls, our children n husbands will not be save!" Roy shd not hide the fact. Be open n let us decide if we want to support him or not.

Gstc82,

The Big Picture

I can understand your concern about the community's image. Unfortunately to the man-in-the-street, it is already quite bad. Views on gays range from possessed-by-the-devil to sexual deviants. If we are going to clear up this negative image, where are we going to start?

If it were a unblemished and prominent Singaporean who hired Ravi to make the case, it would have been great. But this is Singapore, does anybody really think this will happen? Perhaps it is sad, that it takes someone who has already been publicly shamed like Tan Eng Hong to say, "now that my name is out, I have nothing to lose, so I might as well press the gay cause".

But then we must not miss the point. Here we have a chance of 377A being challenged with well put together arguments, argued in a coherent way, by an visible proponent. Here is a chance for us to go beyond grumbling and mumbling in the shadows to actually removing the sharp little dagger at our throats.

If we support Ravi, perhaps we may do it not for Tan Eng Hong. Maybe we should do it for the GLBT community as a whole. I don't know about you, but I am very keen to go. It sure beats paying $7 for a lousy movie.

The Little Picture

Some years back, LKY made a statement on public television that he will no longer prosecute gays for being gays. The government has by and large stuck to that guideline. If the government/public prosecutor intends to abide by LKY's promise, then they should be charging Tan Eng Hong with "public nuisance" or "public indecency" or something like that, and not use 377A. They should not be slapping 377A on gays as and when they wish.

I feel this is the police / attorney general's chambers testing the waters and seeing how far they can get. If they get away with this one, what will be next? Will they re-start raiding the saunas, and placing decoys in blowing wind to entrap us?

We can cat-fight and scratch each other's botoxed faces another time. This is a time for us to close ranks and press our cause.

We see things not as they are, but as WE are - The Talmud

When the student is ready, the teacher will appear - The Buddha

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After attending Sunday's OC Talk, I am definitely not going to have sex in public.

The law (377a) states that it is punishable to indecently display your gentials, have sex in public places - like in my own car at East Coast Park, toilets, or walking naked in full view of my neighbours etc. So, it is not who is the poster boy but we need to understand what is permissible and what isnt. Permissible = in private, in saunas because you paid an entrance fee.

Next Tuesday, we are not showing our support for Tan or Ravi alone, we are there for the GLBT community-at-large.

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In a nutshell, what is this 377A about?

If 377A is repealed - we can have gay sex in saunas, and our bedrooms without fear that that cops will burst in and arrest us. Toilet sex will still be an offence under other laws

If 377A is retained and actively applied - You can be prosecuted for sex with your LTR and monogamous partner in your own bedroom. It will be an offence to be who you already are.

We see things not as they are, but as WE are - The Talmud

When the student is ready, the teacher will appear - The Buddha

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S377A is one of the most barbaric policies in such an era. It doesn't matter in what circumstances the case was brought up. It is of utmost importance to our community that this policy is put down as unconstitutional.

As long as it prevails, every one of us here in this forum is considered a criminal (unless you've never had sex before).

So gstc82, open up your tiny mind and focus on the real problems.

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well, so all gays must support M Ravi? what a joke. whats with all the name calling and put downs. people are entitled to their own views. i will say it again, it is wrong to hide the fact that tan was fined $3000 for sucking cock in a high traffic shopping mall. this impt fact was omitted. its up to people if anyone of us want to support this or not. the govt will not repeal 377a for the reason that the public is generally still against gays. and now, the govt is kinda fearfull of another backlash from the public. i am very sure most you visited political sites, whats the support for gays? of cos, some opposition 'support' gays but they are not in parliament. the opposition supporters will not attack these opposition who 'support' gay causes but will use this to bring the govt down. there fore, i do not wish to see Tan be the so called poster boy for gays. i live my life i wanna live. Jaded, why the jabs and low blows? i dont think you want to start an insult match with me, if you want i can always join in the fun.

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i do not think that anyone meant to hide the fact that he was fined $3000. the original poster did not feel that it was relevant to the case and so he did not post it. And just cos you think it is important, does not necessarily make it really important.

and seriously, jaded only asked you to "open up your tiny mind and focus on the real problems". he did not call you stupid or anything, he is only asking you to open up your mind! i think that you are the person who wants to start an insult match with him so that you can get your point across?

and after kumar outted himself, he is now the poster boy for our community. only bigots will see Tan as the poster boy.

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gstc82 - Please don't play the victim. The only one who seems to have insulted many people is yourself. It is because of people like you that makes this community divisive.

You yourself said that people should be able to express different views, but to begin with, you were the ones that attacked many others whose views happen to differ from yours.

I don't know what planet you're from, but it seems logic is a foreigner there. Just because a clothing shop in Singapore doesn't sell winter wear, will you vandalize it?

Anyway, to me, any S377A believer must be an embodiment of hatred, discrimination, bigotry and ignorance.

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jaded, what u ment that 'i play the victim'? what are u toking abt? accept that there are others who view issues differently than you. do not assume or judge others esp those you do not know. u can go support ravi or whatever but dont expect every gays will join you. and do not think lesser of those who do not support tan.

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