SINGAPORE: Former Chief Justice Chan Sek Keong has called for the constitutional validity of Section 377A, which criminalises sexual acts between men, to be reviewed. He made the call in a paper titled Equal Justice under the Constitution and Section 377A of the Penal Code which was published online by the Singapore Academy of Law Journal on Monday (Oct 14).

In his paper, Mr Chan notes that Section 377A criminalises acts of gross indecency between males, whether homosexual or bisexual, but not similar acts between males and females, or between females. He asked whether such unequal treatment violated the fundamental rights of all to equality before the law and equal protection under the law, as provided for under Article 12(1) of the Constitution.

Laws differentiating based on sex or gender must have a rational basis, he said, giving the example of Parliament hypothetically passing a law against women smoking cigars.

“If Parliament bans women, but not men, from smoking cigars, equality of all persons under Article 12(1) requires the state to justify the reasonableness of the ban,” said Mr Chan. This could be done on health grounds, if medical research showed women were more prone to lung cancer than men, for example.