Why the CJ shouldn't hear the 377A appeal

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Sundaresh Menon

By Shaun Poon
Sundaresh MenonThe two constitutional challenges of the controversial section 377A of the penal code will likely not have their appeals heard by Chief Justice Sundaresh Menon.

The Chief Justice should recuse himself as he had previously represented the state as the Attorney-General when Tan Eng Hong’s challenge to the law against gay sex was before the lower courts.

In October 2010, as the then Attorney General, Chief Justice Menon had applied to strike off Mr Tan’s application to challenge the constitutionality of 377A in a lower court. In cases where a potential conflict of interest might occur, judges may remove themselves from hearing.

He would have not have needed to recuse himself from hearing the other constitutional challenge by Kenneth Chee Mun-Leon and Gary Lim Meng Suang, which was scheduled to be heard earlier than Mr Tan’s appeal. However, now the two similar applications are to be heard together by the Court of Appeal, following an application by lawyer M. Ravi, who represents Mr Tan.

“This further reinforces Mr Tan’s critical role in the challenge to overturn this anachronistic legislation which is a sad remnant of colonial law,” said Mr Ravi.

Mr Chee and Mr Lim’s appeal, due for hearing on October 14, has to be rescheduled to be heard together with Mr Tan’s case.