The Court of Appeal, consisting today of the Honourable Justice of Appeal VK Rajah, Judge of Appeal Andrew Phang and Justice Judith Prakash, seemed fairly receptive to most of Mr Ravi's arguments that there was a real controversy, as the client lived in fear of being prosecuted and his rights were affected. They interjected with a few questions, clarifying some of his points. They queried whether the fact that the client had pleaded guilty to s294(a) affected his ability to bring this challenge and whether there was a spectre of future prosecution.
Mr Ravi also pointed out that according to the Government, sexual orientation was covered under the Constitution. As a side note, this admission came about after the CEDAW Committee asked the Government about protection of women regardless of sexual orientation on the submission of Sayoni's shadow report. (See here for more on CEDAW.) Mr Ravi also noted that there were people who had been given stern warnings using s377A, for private consensual conduct.
The hearing got more interesting when the Respondent, led by Aedit Abdullah, began his oral submissions. The Respondent's various arguments were heavily criticised by the Court of Appeal.
The Respondent said that since the charge had been substituted, there was no longer a controversy. The judges replied that since there had been an investigation and an arrest, that by itself would amount to a deprivation of his liberty, under a potentially unconstitutional law. They did not accept the Respondent's arguments that changing the charge removed the Appellant's ability to challenge s377A.
Then the Respondent attacked the proposition that there was a spectre of future prosecution, saying that there was a promise not to enforce it actively. The Court said in response that as long as the statute was on the books, it could readily be enforced, especially as there was no binding promise. The Court specifically asked the Respondent whether he was able to give a binding promise on it, and the Respondent was forced to admit that he was not in a position to do so.
Justice Prakash remarked at one point, "it seems s377A is alive and kicking", and that the "job of the prosecution would be much easier without s377A", in response to some of the Respondent's arguments. JA Phang also said that as long as the statute existed, there was a possibility of enforcement, and that as citizens, one should not have to look over one's shoulder. The Court of Appeal also said that "passive prosecution", as referred to by the Parliament, was not the same as "no prosecution".
The judges further remarked that there were other jurisdictions which allowed such challenges to proceed despite lack of prosecution, such as in Hong Kong, Australia and India. The Respondent submitted in response that taking such a wide stance would allow anyone and everyone to bring challenges, and it would open floodgates. However, Justice Rajah said that in Hong Kong, there was no such floodgate situation. The Court also seemed to consider that the concern for floodgates might be over-stated.
While there were many other arguments raised, these were the highlights for the hearing. We will have to wait for the judgment to see how the Court of Appeal really decided.
Appellant's Reply to Respondent