Hong Kong's Court of Appeal recently upheld a ruling that had been issued last year by a lower court saying it was discriminatory and unconstitutional to impose by law a higher age of consent for gay men than for heterosexuals and lesbians. The three judges were unanimous in their decision.

As detailed in a story from last year, Hong Kong leads the way, a young gay man, William Leung, took the government to court over the law which made it an offence, punishable by up to life imprisonment, for two men to have sex unless both were at least 21 years old. For other kinds of sex, the age of consent was 16. In August 2005, Justice Michael Hartman decided in favour of Leung.

The Hong Kong government then appealed the case. Dismissing it last week, Chief Judge Geoffrey Ma Tao-li said "I cannot see any justification for either the age limit of 21, or, in particular, for the different treatment of male homosexuals compared with heterosexuals."

Since Leung had not been arrested under the law, the Hong Kong government had argued before the Court of Appeal that he had no basis to sue. Leung's lawyer countered that the law did affect him, preventing him from having sex, and reinforcing social prejudice against gay men.

Chief Judge Ma said in his decision that "where the constitutionality of a statute is being questioned on the basis that fundamental human rights have been breached, the public interest is very much engaged." A person does not have to be charged before he can ask for judicial review.

The government had also argued that homosexual sex was different from heterosexual sex and therefore there was no inequality if different laws applied. The Court of Appeal rejected this line of reasoning. Both forms of sex were expressions of love and intimacy, it ruled. It would be discriminatory for the law to treat them differently.

Two immediate beneficiaries of this ruling were Yau Yuk-lung Zigo and Lee Kam-chuen. In their case, separate from Leung's, they had been charged with engaging in sodomy in a car, but since the law has now been found unconstitutional, their case cannot be prosecuted.

The Society for Truth and Light, a Christian group -- what is it about Christians that they are so obsessed with their homophobia? -- said the verdict was "regrettable" and set a "dangerous precedent." Choi Chi-sum, the group's general secretary, said sodomy should not be seen as sexual intercourse as it involved health risks.

"The focus of this case was wrong," he said. "It should not be on whether this is discriminatory, the focus should be on whether there were moral and hygienic problems in buggery and whether it should be encouraged." He added, "This shouldn't be for the court judges to decide, they are not doctors."

Well, in that case, we should quickly pass laws against women who wear bikinis (immoral!) and against dipping our chopsticks into the common dish at the table (unhygienic!). Life imprisonment might be an appropriate sentence.

* * * * *

On 15 September 2006, an open letter was issued to all Members of Parliament in India, calling for a repeal of Section 377 of the Indian Penal Code. This is the infamous section that criminalises "carnal intercourse against the order of nature".

Singapore has a similar law, also referred to as Section 377.

The Hindustan Times also carried an editorial by Vir Sanghvi, the newspaper's editorial director. Sanghvi (picture right) who is also a well-known television personality, is one of the signatories to the open letter. Expanding on the arguments. He wrote,

What justification can there possibly be for a law that criminalises homosexual acts? No legal scholar I have spoken to has been able to provide any kind of justification for this provision.

The basis of all law is that it punishes acts that harm other people. So, if I rob you or assault you or cheat you, then I am clearly in breach of the law and should be punished. But there is no evidence that homosexual acts between consenting adults harm anybody. Both parties have provided consent, and both are adult enough to decide what behaviour is appropriate to their lifestyles.

So how can you justify legislating against such acts? How can you possibly justify turning otherwise law-abiding citizens into criminals purely on the basis of their personal choices -­ choices that hurt nobody?

Because there is no effective rebuttal to this argument, supporters of Section 377 of the Indian Penal Code, which criminalises homosexuality, fall back on a variety of bogus justifications. Most popular is the paedophilia argument: if homosexuality is legalised, then dirty old men will rape children. This is nonsense. There are several laws already in existence to protect children and to guard against all kinds of rape. And, in any case, most instances of paedophilia in India involve heterosexual sex. If this is an argument for anything, it is an argument for banning heterosexuality.

Then there is the society-is-not-ready argument. This states that India is a deeply conservative society and harmless law-abiding heterosexuals will be deeply offended by the knowledge that somewhere, two consenting adults are performing homosexual acts in private. I don't think this even needs a rebuttal. The truth is that homosexuals exist anyway and regardless of what the [Indian Penal Code] says, they do have sex. As far as I can see, this has done no damage to Indian society. And the overturning of Section 377 does not affect the usual laws about public indecency: it does not mean that homosexuals will make love in the centre of Connaught Place or Kala Ghoda.

And, finally, there is the what-does-it- matter argument. The law against homosexuality is not rigorously enforced. We all know homosexuals who are clearly not celibate. And yet, nobody puts them in jail. So, even if there is a Raj-era law on the statute books, why make such a fuss about it?

The problem with this argument is that it actually works against Section 377. If there is no justification for a law and it is not enforced anyway, then what reason is there for keeping it as part of the Indian Penal Code? Surely, it is much easier to simply abolish it.

But, of course, it does matter. If I were a homosexual, I would find it deeply offensive and an affront to my human rights that my romantic and sexual choices were considered illegal by the Indian State and that each time I had sex with my partner, I was breaking the law. Under Section 377, I would turn into a criminal every night. It would be no consolation for me to know that even though the police had a perfect right to lock me up, they had decided not to bother.

* * * * *

Here, our government relies on the "society is conservative" argument. This is shorthand for the belief that since many Singaporeans are fond of their prejudices, and do not want their ideas challenged, the purpose of government is to cater to these prejudices.

For example, Balaji Sadasivan, the Minister of State for Information, Communication and the Arts, told university students recently that in matters of censorship, the government acted in accordance with what larger society would want (See addendum to the article Minister tries to explain censorship of gay expression). 

Nowhere does our government give space for the consideration of human rights, be they freedom of expression,  the right to privacy, or equality and non-discrimination.

It might surprise our government (and courts) to note that in their amicus curiae brief to the Court of Appeal in Hong Kong (in the above-mentioned case), the International Commission of Jurists (ICJ) pointed out that the judiciary should act if the legislative intent behind any law is grounded in prejudice.

It cited the US Supreme Court's opinion in Romer v Evans. The Court had said that, "a bare …desire to harm a politically unpopular group cannot constitute a legitimate governmental interest."

The ICJ also referred to a sentiment echoed in the Colombian Constitutional Court case of Sentencia No C-098/96. The Court there opined that

The principle of equality (Colombia, article 13) is radically opposed to the subjugation by legal means for reasons of a sexual nature of a minority that does not share the sexual likes, habits and practices of the majority. Prejudices, whether phobic or not, and false beliefs that have historically served to anathem(a)tize homosexuals, do not confer legitimacy on laws that convert homosexuals into the object of public scorn

Our government knows better than to lock horns with such arguments. Instead I've often observed that it tries to evade them by saying that it is not good for Singaporeans to adopt the Western liberal habit of engaging in an adversarial debate about rights. Our ministers tend to suggest that contestation is bad for the economy, and anyway the language of rights is not the Asian way.

At the 1993 United Nations World Human Rights Conference in Vienna, our then-Foreign Minister Wong Kan Seng said, "Homosexual rights are a Western issue, and are not relevant to this conference."

Funny how both Hong Kong and India are very much in Asia too.

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