Foreign QC No Go for 377A

Two gay partners wanted to challenge 377A saying that it is unconstitutional. They brought in a former UK AG as their foreign legal support in the form of a Queen’s Counsel. The couple’s lawyers must have advised that it was a deadend move even before it started as foreign senior counsels or a Queen’s Counsel, cannot represent in cases involving constitutional, criminal, administrative and family law. The rationale is that foreigners are not accustomed to local society norms and therefore cannot accurately legally act for their local clients. A debatable point.

However, the real reason behind this barring of Queen’s Counsel Lord Goldsmith is the age old dictum of not tolerating foreigners to interfere in local affairs. Gary Lim and Kenneth Chee wanted to repeal 377A and sought a foreign talent Queen’s Counsel to change a law that would upset the “live and let live” “ask not tell not” status quo and the Christian, Muslim and conservative communities. The judiciary is aware of the backlash and the importance of laws to reflect society values as much as legally possible.

In the end, it is back to square one. Kenneth Chee and Gary Lim expected that the Queen’s Counsel would be barred from representing, staging it as a stale political gimmick that the Court is against them and feared robust legal challenge. But surely everybody already knew that the Court and PAP government of the day, even the next government WP, would not appease the gay community that easily in the near future. The waltz between the gay activists plus their lawyers and the authorities is quite predictable. The gay couple from the Bear Project, a club for big-sized gays, would appeal as the next step and we can guess how the appeal court might twirl next.

 

Court dismisses bid to admit QC for 377A appeal
SINGAPORE — The High Court yesterday dismissed an application for a Queen’s Counsel to represent two men who are appealing against the dismissal of their challenge to Section 377A of the Penal Code.
By Amir Hussain

SINGAPORE — The High Court yesterday dismissed an application for a Queen’s Counsel to represent two men who are appealing against the dismissal of their challenge to Section 377A of the Penal Code.

Graphic designers Gary Lim Meng Suang, 44, and his partner, Mr Kenneth Chee Mun Leon, 37, had wanted QC Lord Goldsmith Peter Henry to represent them — together with Senior Counsel Deborah Evaline Barker — for their case, which will be heard by the Court of Appeal in three weeks’ time.

Their challenge to Section 377A — on the basis that the law criminalising sex between men breaches the Constitution — was thrown out by High Court Judge Quentin Loh in April, who ruled that its objective of criminalising a conduct that “was not acceptable in society” was “clear”.

In applying for Lord Goldsmith to represent them in their appeal, Mr Lim and Mr Chee had argued that the QC, who was a former Attorney-General of the United Kingdom and a member of the UK Parliament’s Joint Committee on human rights, had extensive experience in constitutional, public, and human rights cases.

The outcome of the appeal will have a bearing on an earlier challenge to Section 377A by Mr Tan Eng Hong, 49, which was also heard by Justice Loh. The court had reserved judgment in his case, but Mr Tan’s lawyer, Mr M Ravi, had said the ruling is expected next month.

Dismissing the couple’s application, Judge of Appeal V K Rajah ruled that the application did not meet the requirement for admitting foreign senior counsel on an ad hoc basis under the Legal Profession Act, where there must be a “special reason” to do so.

While there is no definitive parameter on the requirement, he said “there must be something specific to the nature of the facts or legal issues concerned beyond the expected features of ordinary constitutional cases”. In this case, there was nothing “out of the ordinary which would constitute a special reason” to justify Lord Goldsmith’s admission.

He also noted that foreign senior counsel can participate in the preparation of both written submissions and further submissions, as well as the oral case, by anticipating and preparing questions. “In the Singapore context, written advocacy has a more prominent part to play in the appellate process than in other common law jurisdictions … The written medium functions as the focal means by which counsel informs and persuades the court on the merits of their submissions”, while oral submissions build upon rather than supplant arguments made, he said.

When contacted, the couple’s lawyer, Mr Shashidran Nathan, said his clients will proceed with Ms Barker as counsel for their appeal.

Said Mr Shashidran: “Obviously, our clients are disappointed, but I am confident that we will be able to deal with all the issues that will be raised at the Court of Appeal.” AMIR HUSSAIN

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