Sunday, 9 September 2018

Section 377A: Either enforce the law or repeal it

Amending 377A: Unlike courts, Parliament will take into account views of public
Law and Home Affairs Minister K. Shanmugam says depending on the legislation, public opinion is often relevant during policymaking
By Charmaine Ng, The Sunday Times, 9 Sep 2018

Whether Section 377A will be repealed or amended will be a matter for Parliament to decide, said Law and Home Affairs Minister K. Shanmugam yesterday.

He added that depending on the legislation, public opinion is "often relevant" during policymaking in Parliament. Section 377A is the law that criminalises consensual sex between adult men.

India's Supreme Court had on Thursday ruled that homosexuality was not a crime, in a decision that decriminalised Section 377 of the Indian Penal Code.

The minister was speaking to the media yesterday about the Indian Supreme Court statement that the constitutionality of the law does not depend on public opinion, on the sidelines of a Ministry of Home Affairs event.

Mr Shanmugam said "that is the jurisprudential approach that many courts around the world, including Singapore, take". "What the public thinks, whether it's a majority view or minority view, these are usually not considerations. You look at the law and you compare it against the Constitution," he added.

However, when it comes to whether a piece of legislation should be amended or repealed, that would be a matter for the Executive and the Parliament, he added.

In Singapore, the Executive comprises the Cabinet.

"The Executive proposes and Parliament decides and usually, depending on the legislation, public opinion can be relevant," he said.



When asked whether Section 377A can be challenged again in Singapore courts, Mr Shanmugam said: "Technically, it is possible for people to bring a challenge and there are rules, jurisprudence on how such challenges will be dealt with by the courts."

A legal challenge to strike down Section 377A failed in 2014, when the highest court in Singapore rejected arguments that the provision contravened the Constitution.

Gay couple Gary Lim, 46, and Kenneth Chee, 38, as well as Mr Tan Eng Hong, 51, had said the provision was discriminatory and should be declared void by the court.

On Thursday, former ambassador Tommy Koh had called for Singapore's gay community to challenge Section 377A, following India's scrapping of the same British colonial-era legislation.

Professor Koh had made the comment in a Facebook post by Professor Simon Chesterman, dean of the Faculty of Law at the National University of Singapore, about the ruling.



Mr Shanmugam had said on Friday that Singapore society has to decide which direction it wants to go on the issue of Section 377A.

He said: "(In Singapore) if you look at this issue, it is a deeply split society. The majority are opposed to any change to Section 377A, they are opposed to removing it."

However, he said a "growing minority" want to have it repealed.

"The Government is in the middle," he added.

Yesterday, Mr Janadas Devan, chief of government communications at the Ministry of Communications and Information, reiterated Mr Shanmugam's comments in a Facebook post.

He added that the "uneasy compromise" on Section 377A - a term used by Prime Minister Lee Hsien Loong during a BBC interview last year - "remains the only viable position" for Singapore at the moment.

"Given the majority view, the law remains on the books. But the Government does not and will not enforce 377A," said Mr Devan, adding that this was the view held by all three prime ministers, including the late Mr Lee Kuan Yew.

He noted that the founding prime minister had said homosexuality should not be criminalised because he believed it was genetically determined.

However, in his Facebook post, Mr Devan also highlighted that the late Mr Lee had said the law should not be changed in such a way that it upsets the "sense of propriety and right and wrong" of the majority. Also, people should not "go around like this moral police - barging into people's rooms".

Meanwhile, an online petition by a netizen to keep Section 377A in Singapore has garnered more than 34,000 names in about 10 hours, after it was started at 2pm yesterday.














Shanmugam on India decriminalising gay sex: Singapore society to decide which direction to take
Majority are opposed to removing Section 377A but a growing minority want it repealed, he says
By Tan Tam Mei, The Straits Times, 8 Sep 2018

Singapore society has to decide which direction it wants to go on the issue of Section 377A, the law which criminalises sex between men, said Minister for Law and Home Affairs K. Shanmugam.

His comments came after India's Supreme Court on Thursday ruled to decriminalise Section 377 of the Indian Penal Code, which made consensual gay sex a crime.

Mr Shanmugam told reporters that in Singapore, society is deeply split on this issue. "The majority are opposed to any change to Section 377A, they are opposed to removing it," he said.



However, he noted that a growing minority want the law to be repealed. "The Government is in the middle." He said the issue relates to social values, and added: "Can you impose viewpoints on a majority when (the issue is) so closely related to social value systems?"

Mr Shanmugam said his personal point of view is that care has to be taken against criminalising lifestyles and sexual attitudes, and treating people involved as criminals.

"(But) it would be wrong for me to impose my personal views on society or as a policymaker."

He added: "So, really, I think society has got to decide which direction it wants to go. And the laws will have to keep pace with changes in society and how society sees these issues."

The offence carries up to a two-year jail term for men who, in public or private, commit acts of "gross indecency" with other men.



Mr Shanmugam also made the point that the law is there, but generally there have been no prosecutions for private conduct.

"People openly express themselves as gay, I mean you have got the gay parade. Police even approved the licensing for it, no one gets prosecuted for declaring themselves as gay. So, really, when was the last time someone was prosecuted?" he said, adding this was the approach as set out by the Prime Minister.

A legal challenge to strike down Section 377A failed in 2014, when the highest court in Singapore rejected arguments that the provision contravened the Constitution.

Gay couple Gary Lim, 46, and Kenneth Chee, 38, as well as Mr Tan Eng Hong, 51, said the provision was discriminatory and should be declared void by the court.

Their argument was that Section 377A infringed their right to equal protection under the law, as guaranteed by Article 12 of the Constitution, and violates their right to life and liberty, as guaranteed by Article 9.

But the apex court held that Section 377A did not violate Article 9 as the phrase "life and liberty" referred only to the personal liberty of a person from unlawful incarceration, and not to the right of privacy and personal autonomy.



As for Article 12, the court held that Section 377A passed a classification test used by the courts in determining whether a law complies with the constitutional right of equality.

The court also ruled that Section 377A fell outside the scope of Article 12, which forbids discrimination of citizens on grounds including religion, race and place of birth. The court observed that Article 12 did not contain the words "gender", "sex" and "sexual orientation", which related to Section 377A.



During an interview last year with the BBC, Prime Minister Lee Hsien Loong said that Singapore "is a society which is not that liberal on these matters. Attitudes have changed, but I believe if you have a referendum on the issue today, 377A would stand''.

Asked whether he would like to get rid of 377A, PM Lee replied: "My personal view is that if I do not have a problem, this is an uneasy compromise, I am prepared to live with it until social attitudes change."









Tommy Koh's Facebook comment reignites debate on Singapore's gay sex law
By Yasmine Yahya, Senior Political Correspondent, The Straits Times, 8 Sep 2018

India's decision to strike down a law banning gay sex has reignited a debate on the issue here, especially after a prominent figure voiced his support for Singapore to move in the same direction.

In a Facebook comment on Thursday that has been shared widely, former ambassador Tommy Koh wrote: "I would encourage our gay community to bring a class action to challenge the constitutionality of Section 377A". Section 377A is the law that criminalises consensual sex between adult men, but it is not actively enforced.

Professor Koh made the comment in a Facebook post of Professor Simon Chesterman, dean of the National University of Singapore Faculty of Law, who shared an article. In the post, Prof Chesterman had congratulated a former classmate and others who had helped move the needle on the legal issue in India, culminating in Thursday's landmark ruling.

When a Facebook user pointed out to Prof Koh a failed attempt in Singapore in 2014 to challenge the constitutionality of 377A, he simply replied: "Try again."

Prof Koh also liked a Facebook post by Mr Janadas Devan, chief of government communications, who wrote yesterday: "Speaking personally, I support Tommy's position. 377A is a bad law... Sooner or later, it will go. Pray sooner rather than later."

Members of the lesbian, gay, bisexual and transgender (LGBT) community cheered Prof Koh.

Organisers of the annual Pink Dot rally, using the hashtag #tryagain on their Facebook page, said: "Time to get rid of the archaic law left behind by the British!"



Mr Leow Yangfa, executive director of Oogachaga, a non-profit organisation working with the LGBT community, told The Straits Times that although Section 377A is not proactively enforced, its continued existence creates an environment where it is acceptable to treat members of the LGBT community in an unequal way.

But conservative leaders have begun to fret. Pastor Lawrence Khong, chairman of LoveSingapore, a network of more than 100 churches here, said: "I am somewhat concerned, perhaps even disappointed, that a public and some would consider a government figure is making a statement like that. It does not come across as being helpful to building cohesion in society."

He urged the Government to take a cautious approach on the issue.

The Singapore Islamic Scholars and Religious Teachers Association (Pergas) could not be reached for comment. It had previously asked Muslims not to attend events that "support transgression" of Islamic teaching on the family, including events in support of the LGBT community.



Lawyer Lim Biow Chuan, who is Deputy Speaker of Parliament, said the Government has been taking a cautious stance on the issue for many years. The Government has stated that to "accommodate the sensitivities of different communities so that there is room for all to exist harmoniously together", Section 377A is not proactively enforced, and all citizens, regardless of their sexual orientation, are free to lead their lives and pursue their activities in their private space without fear or violence or personal insecurity.

Mr Lim thinks reviewing 377A now will divide society. "Maybe in the future, as people's values develop and change, we may find a better time to do so."

Additional reporting by Theresa Tan

















Indian Supreme Court decriminalises consensual gay sex in landmark verdict
By Nirmala Ganapathy, India Bureau Chief, The Straits Times, 7 Sep 2018

India's Supreme Court yesterday ruled that homosexuality is not a crime in the world's largest democracy, in a move hailed as a significant step for individual rights.

"We have to bid adieu to prejudices and empower all citizens," the Supreme Court said in the landmark judgment.



Chief Justice Dipak Mishra, who led a five-member bench that struck down the law, said the lesbian, gay, bisexual and transgender (LGBT) community "has the same rights as that of any other ordinary citizen", adding: "Criminalising gay sex is irrational and indefensible."

Section 377 of the Indian Penal Code, which made consensual gay sex a crime, had a maximum jail sentence of 10 years and was enacted in 1861, when India was under British colonial rule.

Based on Victorian-era criminal law, the statute remains on the books in several former colonies, including Singapore and Malaysia.

England and Wales decriminalised gay sex in 1967, and Scotland in 1980. The law prohibited "carnal intercourse against the order of nature with any man, woman or animal", and was interpreted to include consensual gay sex, creating an atmosphere of fear in the community.

Only consensual gay sex was decriminalised by the Supreme Court.



Lawyers working on the case called it a historic moment. "It is a great victory. The whole of India needs to understand we are in a new freedom era," senior lawyer Anand Grover told reporters.

Ruling party and opposition politicians alike welcomed the decision. Bharatiya Janata Party spokesman Gaurav Bhatia said on Twitter: "An archaic 156-year-old Section 377 makes way for fundamental rights of the LGBT community. Proud of our Supreme Court."

The Congress Party said: "We welcome the progressive and decisive verdict from the Supreme Court, and hope this is the beginning of a more equal and inclusive society."

Members of the LGBT community in India routinely face discrimination and are often threatened with legal action, even though the law was rarely implemented.



The road to decriminalisation was not a straight one. Section 377 was first struck down in the Delhi High Court in 2009 on the grounds that it violated the fundamental rights of life and liberty and the right to equality guaranteed in the Constitution.

But the Supreme Court reinstated it four years later following an appeal by a loose coalition of Hindu, Muslim and Christian groups, saying the law "does not suffer from the vice of unconstitutionality".



Five high-profile petitioners then challenged the Supreme Court order in a petition, culminating in yesterday's judgment. People who had gathered to hear the decision cheered and hugged one another.

College student Kabir Taneja, 18, who described himself as transsexual, said: "This is going to reduce police harassment. It is no longer a legal threat."

His sentiment was echoed by Mr Bhuvan Kathuria, who held a sign saying "Love is gender free".

"It was long overdue. It was worth the wait. But the battle has just begun," he said of the judgment. "We have got legal acceptance. Next, we need to fight for social acceptance... This is a step in the right direction."














The apex court ruling
The Straits Times, 8 Sep 2018

• India's Supreme Court on Thursday unanimously repealed one of the world's oldest bans on consensual gay sex in a groundbreaking victory for gay rights.

• Chief Justice Dipak Mishra, who led a five-member Bench that struck down the law, said the law was "irrational, indefensible and manifestly arbitrary".

• In their ruling, the justices said homosexuality was "natural" and that gays are to be accorded all the protections of the Indian Constitution.



• Another judge, Justice Indu Malhotra, said "history owes an apology to members of the (gay) community for the delay in ensuring their rights".

• Section 377 of the Indian Penal Code, which made consensual gay sex a crime, was enacted in 1861, when India was under British colonial rule.

• The law was first repealed in the Delhi High Court in 2009, but was reinstated in 2013 following an appeal by a loose coalition of religious groups.

NYTIMES















Narendra Modi's govt silent as Indian media hails court ruling to decriminalise gay sex
The Straits Times, 8 Sep 2018

NEW DELHI • Indian media - including several conservative outlets - yesterday hailed a Supreme Court ruling to decriminalise gay sex, while highlighting a "deafening" silence from Prime Minister Narendra Modi's Hindu nationalist government.

Banner front-page headlines such as "Love at first right", "Rainbow nation" and "Independence day" greeted the verdict of the top court to strike down the heart of Section 377, a law introduced by the British rulers in 1861.



Many said the five justices may have opened the door to demands for greater civil rights for long-marginalised gays and lesbians, including same-sex marriage.

The conservative Hindu newspaper called the verdict "a reaffirmation of the right to love" and "a welcome departure from centuries of 'hetero-normative' thinking".

The judges had "furthered the frontiers of personal freedom and liberated the idea of personal rights from the pressure of public opinion," it added in an editorial.



The Hindustan Times warned that the lesbian, gay, bisexual and transgender community will still face condemnation from their families and colleagues.

"Harassment and violence will continue to occur," it warned.

"But if the long legal battle and the courage of queer people and communities are anything to go by, this fight for equal rights will not end. It will grow even stronger now that even the apex court has said there is no going back."

Amid pictures of celebrating activists, Google India put out a rainbow flag on its homepage and Facebook changed its display picture to a multi-hued icon. The United Nations and rights activists around the world gave Twitter support to the Supreme Court ruling. But Mr Modi's right-wing government has yet to make a comment on the ruling.

Mr Modi's administration had initially opposed dismantling Section 377, though in July, government lawyers said they would give in to the "wisdom" of the top court.

Justice D.Y. Chandrachud said the government should have taken a categorical stand one way or the other instead of being ambivalent, the Hindu newspaper reported the judge as saying.



The Indian Express daily said the ruling Bharatiya Janata Party's (BJP) silence on the issue was "deafening" and "deceptive".

India's main opposition Congress and other small regional parties have welcomed the verdict.

The BJP's ideological Hindu nationalist backer, the Rashtriya Swayamsevak Sangh (RSS), said it does not consider homosexuality a crime, but it did not support same-sex relations.

"Traditionally, Indian society does not accept such relations," it said in a statement.

AGENCE FRANCE-PRESSE





















More than 4,000 sign online petition to repeal 377A
By Sue-Ann Tan, The Straits Times, 10 Sep 2018

A petition to repeal a law that criminalises consensual sex between adult men - Section 377A - has attracted at least 4,000 signatories after it was created yesterday.

This comes after the Indian Supreme Court struck down a similar section of the Indian Penal Code last Thursday.

The petition, titled "Ready for Repeal" and hosted on website GoPetition, was created by Singapore film-maker Glen Goei and another person named Johannes Hadi.

Other named signatories of the petition include Mr Ho Kwon Ping and Ms Claire Chiang. It was not clear if they are indeed the Banyan Tree Holdings founder and his wife.

The petition will be sent to the Penal Code Review Committee and local Members of Parliament by Sept 24.



It is also supported by Pink Dot SG. The organisation wrote a statement on its website that it was dismayed that the latest report on criminal law reform did not include the consideration and repeal of 377A.

"Section 377A would have been the perfect candidate for such a review and repeal. It is a colonial relic of Victorian values that was left behind by the British from before Singapore's independence. The law treats an already unprotected segment of citizens as unequal by characterising them as unconvicted criminals," said the statement.

Meanwhile, there is another petition, called "Please Keep Penal Code 377A in Singapore", on website change.org. It has garnered at least 71,000 signatures and was created over the weekend.










* Singapore DJ files fresh court challenge against Section 377A, arguing it is unconstitutional
Court should depart from 2014 precedent, he says; lawsuit comes days after India ruling
By Selina Lum, Law Correspondent, The Straits Times, 12 Sep 2018

A disc jockey has filed a court challenge against Section 377A of Singapore's Penal Code, arguing that the law, which criminalises sex between men, is unconstitutional.

Mr Johnson Ong Ming, 43, who goes by the stage name DJ Big Kid, filed his challenge with the High Court on Sept 10, four days after India's Supreme Court struck down a similar law.

That decision sparked a renewed debate on Section 377A here, with camps on both sides starting petitions either to keep the law, or repeal it. In the wake of the Indian decision, Singapore's former ambassador Tommy Koh also suggested that a new attempt be made to challenge Section 377A in the courts.



Mr Ong is being represented by lawyer Eugene Thuraisingam, who confirmed to The Straits Times that the case has been filed. He said he is acting pro bono. The Attorney-General has been listed as the defendant. A pre-trial conference has been fixed for Sept 25.

A legal challenge against Section 377A failed in 2014, when the highest court in Singapore rejected that the provision was unconstitutional. Gay couple Gary Lim, 46, and Kenneth Chee, 38, as well as Mr Tan Eng Hong, 51, had then argued that the provision was discriminatory.

In his filing, Mr Ong, who is in a relationship with a man, said he was aware of the 2014 decision, but argued the court should depart from that precedent given international judicial developments since 2014, including the India Supreme Court's decision to strike down its version of the law.

He is also relying on a 2015 report by the United States Substance Abuse and Mental Health Services Administration which argues that "sexual orientation is unchangeable or suppressible at unacceptable personal cost".

Mr Thuraisingam told The Straits Times: "We will be presenting medical and scientific evidence to show that sexuality is inherent and is not a choice."

He said the previous challenge here did not deal strongly with this point. If sexuality is found to be inherent, then Section 377A falls foul of Article 9 of the Singapore Constitution, which guarantees life and personal liberty, he argued.



In the court filing, which was seen by The Straits Times, Mr Ong also argues that Section 377A targets only gay men and not gay women, and so goes against the right to equality enshrined in Article 12 of the Constitution.

Last week, Home Affairs and Law Minister K. Shanmugam said Singapore society has to decide which direction it wants to go on this issue of Section 377A, noting that the nation is "deeply split" and that the Government is in the middle.

A recent survey by Ipsos Public Affairs, an independent market research company, found that 55 per cent of the people in Singapore support Section 377A, while 12 per cent said they opposed it.













** Church groups say they do not support repeal of gay-sex law, Section 377A
By Melody Zaccheus, Heritage and Community Correspondent, The Straits Times, 14 Sep 2018

The National Council of Churches of Singapore (NCCS) said in a statement on Thursday (Sept 13) that it does not support the repeal of Section 377A of the Penal Code, adding that it believes "that the homosexual lifestyle is not only harmful for individuals, but also for families and society as a whole".

Although it is not enforced, Section 377A criminalises sex between men.

The council, which represents about 200 churches, said it agrees with the 2014 ruling of Singapore's apex court that Section 377A is constitutional, and "supports the Government's decision to retain it".

The statement goes on to say that the Bible "clearly and categorically prohibits homosexual behaviour because it is a perversion of the way in which God has ordered human sexual relationships".

"The repeal of Section 377A would result in the normalisation and promotion of this lifestyle, which in turn would lead to undesirable moral and social consequences, a slippery slope as seen in some countries taking this step," it said.



The Straits Times reported this week that a disc jockey filed a court challenge against Section 377A with the Singapore High Court. The move comes days after India's Supreme Court struck down a similar law. That decision sparked a renewed debate on the legislation here.

A legal challenge against Section 377A failed in 2014, when the highest court in Singapore rejected that the provision was unconstitutional.

The NCCS said in its statement: "Above all, the council urges Christians to pray that God will protect the institutions of marriage and family because they are indispensable for the well-being of the future generation and the flourishing of our society."

The Alliance of the Pentecostal-Charismatic Churches of Singapore, which has about 50 churches, in a statement echoed the council's stance.

It said that while many cosmopolitan cities have prided themselves on their quick adaptation of popular views and culture, "Singapore is a nation that remains unique in its strong preservation of family values - including its view on marriage as a union between a man and a woman".



Its chairman, Reverend Dominic Yeo, added that repealing it would have wider consequences, as it "brings to question the legitimacy and morality of every act the Penal Code currently deems as an offence".

He said: "When viewed in relation to Sections 375 through 377C, Section 377A serves a broader purpose of setting a moral position with regard to sexual activities and relationships, and in turn strengthen the social fabric of society.

"While our position may be viewed as 'conservative' or 'outdated', the church remains committed to upholding and promoting traditional family values that are the building blocks of our nation."

A petition to repeal the law has amassed almost 37,600 signatures since it was launched on Sunday.

Meanwhile, a petition to retain it has gathered almost 99,400 signatures since it was launched last Saturday.


















 





















Law that criminalises sex between men

The debate over 377A: Why repeal v remain is a hot issue in Singapore
The Penal Code's Section 377A, which criminalises sex between men, is in the spotlight again. Insight examines why the issue continues to stir up strong debate between opposing camps.
By Yuen Sin and Amelia Teng, Education Correspondent, The Sunday Times, 16 Sep 2018

Keep or repeal Section 377A of the Penal Code? This debate has been reignited in Singapore after a similar colonial-era ban on gay sex in India was struck down.

The issue came to the fore when Ambassador-at-large Tommy Koh, in a Facebook comment on a post by National University of Singapore law school dean Simon Chesterman earlier this month, suggested that Singapore's gay community bring a class action to challenge the constitutionality of Section 377A.

Last Monday, deejay Johnson Ong Ming, 43, filed a case at the High Court arguing that the law is unconstitutional.

Another group led by film-maker Glen Goei and legal trainee Johannes Hadi, whose petition against Section 377A has got more than 41,000 signatures since Sept 9, are appealing to the Ministry of Home Affairs for the statute to be included in an ongoing review of the Penal Code.

At the same time, a petition to retain 377A has gathered more than 102,000 signatures since it was launched on Sept 8.

Churches here have also expressed their concern and maintained their stance that the "homosexual lifestyle" is not acceptable, and the traditional family unit must be kept intact. Among those in favour of keeping 377A, some have shared videos or messages about the possible implications of making gay sex legal.

WHY IS 377A SO EMOTIVE?

Section 377A, says Singapore Management University (SMU) law don Eugene Tan, has become "valorised as being the last frontier for both camps".

"The 'retain' camp sees it as a high-water mark or 'safe harbour' for societal values they regard as desirable and wholesome."

This does not necessarily mean they want the law to be actively enforced or for the LGBT (lesbian, gay, bisexual and transgender) community to be discriminated against in other ways, he says. For some, the retention of 377A is "more of a shield, rather than a sword, for their values".

For the repeal camp, the presence of 377A on the statute books "is a clear sign of discrimination", adds Professor Tan. "A complete victory for either camp will be seen as a complete annihilation of the other, and that's not an outcome that is desirable. There will be a very strong pushback from the camp that lost or is seen to have lost."

Observers also point out how opposing sides have become more vocal in recent years. The annual Pink Dot rally, which supports the LGBT cause, has gained traction over the years and marked its 10th anniversary in July. The movement has encountered religious opposition from Christian and Muslim circles.

As Prime Minister Lee Hsien Loong noted back in 2007: "The more gay activists push this agenda, the stronger will be the pushback from conservative forces in our society."


DOES INDIA'S RULING CHANGE ANYTHING?

Attempts to overturn 377A in Singapore have been made before. In 2014, the highest court in the land rejected that the provision was unconstitutional after gay couple Gary Lim and Kenneth Chee, and another plaintiff, Mr Tan Eng Hong, argued it was discriminatory.

Among other things, the Court of Appeal ruled that Section 377A fell outside the scope of Article 12 of the Constitution, which forbids discrimination of citizens on grounds including religion, race and place of birth. The court observed that Article 12 did not contain the words "gender", "sex" and "sexual orientation".

And in the last comprehensive review of the Penal Code back in 2007, a petition filed by Nominated MP (NMP) Siew Kum Hong on behalf of a group of activists to repeal Section 377A stirred an emotional debate in Parliament.

That bid was unsuccessful, with PM Lee saying that while Singapore should recognise homosexuals as part of society, they should not set the tone for society or be considered a minority like Malays and Indians.

He also said that Singapore is "basically a conservative society" and that a "heterosexual, stable family is a social norm".

Has the latest Indian decision changed anything?

Legally, no, says National University of Singapore (NUS) law professor and former attorney-general Walter Woon, explaining that it is not binding in Singapore.

NUS law professor Thio Li-ann adds that Singapore's courts in matters of public law "do not blindly follow other courts", particularly when other judiciaries deal with politicised and highly controversial issues. "That would violate the separation of powers - the matter falls within the ambit of Parliament as the people's representatives. An overly politicised court degrades the rule of law."

In remarks to the media last week, Law and Home Affairs Minister K. Shanmugam said a decision on whether a piece of legislation should be amended or repealed would be a matter for the Executive and the Parliament to decide.

But the Indian decision has also set a fresh stage for the matter to be discussed again, given how Section 377A has similar colonial origins as India's Section 377, a law introduced by British rulers in 1861, NMP Kok Heng Leun, who is for repeal, points out.

This time, prominent members of the public, such as former senior diplomat Kishore Mahbubani, have also come forward to add their voice for change.

Mr Shanmugam said his personal view is that care has to be taken against criminalising lifestyles and sexual attitudes, and treating people involved as criminals. But he added that it would be wrong for him to impose his personal views on society or as a policymaker.

Former NMP Kanwaljit Soin, who has signed Mr Goei's petition to repeal Section 377A, says: "India is a traditional society which is very family orientated and they have repealed 377. (If 377A is repealed here), we are therefore not following the footsteps of Western liberals but in the footsteps of an Asian society."

WHY DO WE HAVE A LAW THAT IS NOT USED?

On Sept 8, Mr Janadas Devan, chief of government communications at the Ministry of Communications and Information, said in a Facebook post that the "uneasy compromise" to keep but not enforce Section 377A - a term used by PM Lee during a BBC interview last year - "remains the only viable position" for Singapore at the moment.

Still, in 2007, former MP Hri Kumar Nair, in giving what he said was a "lawyer's point of view", noted how Section 377A falls short of what a good law is or should be in some respects.

On the issue of not pursuing the law proactively, he asked: "Does it mean that the police will not act on complaints or that suspects may be investigated but ultimately not arrested or prosecuted? Or is it the case that the Attorney-General, who has prosecutorial discretion, may prosecute some but not all offenders?... But if the intention is not to do anything at all, then what is the purpose of having the law?"

During the same debate, Holland-Bukit Timah GRC MP Christopher de Souza pointed out that enforcement alone could not test how effective a law was. He highlighted how, despite a lack of prosecution, attempting suicide is an offence because it conveys the message that people should not take their own lives.

He added that it is a misconception to argue for the repeal of Section 377A on the grounds that "what goes on behind closed doors will not affect us, so no point criminalising it". Any repeal, he argued, "puts homosexual lifestyle on (a) par with heterosexual lifestyle".

Insight contacted seven People's Action Party MPs for comment on the 377A issue but they declined to comment or did not respond.

During the 2007 377A debate, the Workers' Party had said that its leadership was divided on the issue and, therefore, would not push for the law to be repealed or kept. WP media chair and Non-Constituency MP Daniel Goh says the party has not changed its position.

SMU law professor Tan Seow Hon tells Insight that if the longstanding law against gay sex is abolished, it would send the signal, as PM noted in 2007, that "our stance has changed".

She adds that "laws shape the moral ecology within which people live and make their choices", citing the example of the Media Development Authority's decision in 2013 to ban extramarital dating website Ashley Madison.

Given the divide in views, it will be difficult to build consensus. But Mr Kok believes that both sides should "sit down and have conversations, instead of accusations".










Section 377A: There is a difference between a sin and a crime
Religious leaders may view homosexuality as a sin, like adultery and fornication, but there's no reason for the state to make it a crime
By Tommy Koh, Published The Straits Times, 25 Sep 2018

Singapore was part of the British empire. It was once administered by the British from Calcutta (Kolkata). Many of our laws, including the Penal Code, were imported from India. The Indian Penal Code, in Section 377, criminalises "carnal intercourse against the order of nature". Sodomy was considered a crime under Section 377.

Section 377A of the Singapore Penal Code makes it a crime for two consenting male adults to have sex with each other in private. It does not penalise sex between two consenting female adults. The first question is whether Section 377A should be repealed. The second question is whether 377A is consistent with our Constitution.

THE SCIENTIFIC EVIDENCE

Singaporeans are a rational people. We make our policies and laws based on facts, science and reason.

What is the scientific evidence on homosexuality? Is it a form of mental disorder which can be cured? Or is it a normal aspect of human sexuality?

In 1973, the World Health Organisation (WHO) deleted homosexuality from the Diagnostic and Statistical Manual of Mental Disorders. This decision was endorsed by the general assembly of WHO in 1990 when it agreed to delete homosexuality from its list of mental disorders. In WHO's view, being LGBT (lesbian, gay, bisexual, and transgender) is not a disease.

Scientists do not know what determines a person's sexual orientation, but they theorise that it is caused by a complex interplay of genetic, hormonal and environmental influences and do not view it as a choice. They favour biologically-based theories, which point to genetic factors.

Scientific research has shown that homosexuality is a normal and natural variation in human sexuality and is not in itself a source of negative psychological effects. They also believe that there is insufficient evidence to support psychological interventions to change sexual orientation.


SODOMY AND THE WORLD

The United Nations has 196 member states. The majority, 124 states, do not criminalise sodomy. However, the minority of 72 states, including Singapore, do.

Which societies belong to the majority? All the countries of Europe, North America and South America do not criminalise sodomy. It is of interest to point out that China, Japan, South Korea, Hong Kong, Taiwan, the Philippines and Thailand also belong to the majority. It is therefore not the case of a liberal West versus a conservative East.

Which countries make up the 72 which criminalise sodomy? They are the Arab countries, the Muslim-majority countries and, surprisingly, the former British colonies of Asia, Africa and the Caribbean.

Singapore is part of the minority mainly because we inherited from the British a penal code which criminalises sodomy. For a country which embraces science and technology, it is surprising that, on this one aspect, the law has not been updated in the light of the scientific evidence.

SIN AND CRIME

The National Council of Churches of Singapore, the Catholic Archbishop, and the Islamic authorities have issued statements against the repeal of Section 377A. They regard homosexuality as a violation of their religious dogmas and therefore a sin.

My good friend, former attorney-general Walter Woon, has pointed out that there is a fundamental difference between a sin and a crime. He said that many regard adultery and fornication as sinful but they are not criminal behaviour.

He concluded that sodomy may be a sin but it should not be made a crime. He is also unhappy with the compromise of retaining 377A and not enforcing it because it brings the law into disrepute.

There is an important point which I wish to make to the Christian and Islamic authorities. I would respectfully remind them that Singapore is a secular state. It is not a Christian country or a Muslim country. It is not the business of the state to enforce the dogmas of those religions. In Singapore, there is a separation between religion and the state. Church leaders and Islamic leaders should respect that separation.



ROLE OF COURTS

In most cases, the antiquated sodomy laws were repealed by the legislatures of the respective states or countries. However, in a few cases, the laws were declared unconstitutional by the courts.

In 1960, every state of the United States had a law criminalising sodomy. By 2003, only 14 states, including Texas, had such laws.

In 2003, the US Supreme Court made a landmark decision in Lawrence versus Texas. The court held, by a majority of six to three, that the Texas law criminalising sodomy was unconstitutional.

Speaking for the majority, Justice Anthony Kennedy said: "The petitioners are entitled to respect for their private lives. The state cannot demean or control their destiny by making their private sexual conduct a crime."

The ruling in effect invalidated the anti-sodomy law in the other 13 states as well. But today, 15 years later, most of these states have not repealed the anti-sodomy law. However, it is considered unenforceable as the Supreme Court has ruled it unconstitutional.

Earlier this month, the Indian Supreme Court overturned its earlier decision of 2013, and ruled that Section 377 of the Indian Code was unconstitutional. This was the unanimous decision of a panel of five judges.

Chief Justice Dipak Misra said that "criminalising homosexual sex is irrational, arbitrary and manifestly unconstitutional".

Another judge, Indu Malhotra, said: "History owes an apology to the LGBT people for ostracising them."

In 2014, the issue of the constitutionality of Section 377A was considered by the Singapore Court of Appeal in the case of Lim Meng Suang versus Attorney-General. The court ruled that the law was not unconstitutional.

I believe that the court's judgment was wrong. I hope that the Court of Appeal will overturn its 2014 decision if it is presented with an opportunity to do so.

I will conclude with the following four propositions.

First, the scientific evidence is that homosexuality is a normal and natural variation of human sexuality. It is not a mental disorder.

Second, Section 377A is an antiquated law, not supported by science, and should be repealed.

Third, Singapore is a secular state. It is not a Christian or Muslim country. The leaders of those religions should respect the separation of state and religion and refrain from pressuring the Government to criminalise conduct which they consider sinful.

Fourth, the Court of Appeal should overturn its 2014 decision and declare 377A to be unconstitutional.

Veteran diplomat Professor Tommy Koh is chairman of the Centre for International Law and rector of Tembusu College, both at the National University of Singapore.










Section 377A: An impotent anachronism
Time for serious reconsideration of Section 377A
By V. K. Rajah, Published The Sunday Times, 30 Sep 2018

In a recent landmark case, Navtej Singh Johar v Union of India ("Navtej"), the Indian Supreme Court broke new ground by declaring parts of the Indian equivalent of Section 377A of our Penal Code to be unconstitutional.

This promptly reignited local debate as to whether private sexual acts between males (or homo-sex for short) should be similarly decriminalised in Singapore. Section 377A, which penalises only male homo-sex, is regarded by many as an anachronistic expression of Victorian morality imposed on several British colonies. Far from expressing a universal morality, the sentiments inspiring this provision seem to be misaligned with the contemporary social mores of a multi-cultural, multi-religious and secular society.

It is noteworthy in this regard that no other colonial power apart from the British penalised such private acts. Indeed, no Asian society outside the Middle East has independently criminalised it. Even Indonesia's national criminal code deems this to be a matter for the independent navigation of its individual provinces.

THE INDIAN DECISION AND ITS IMPACT

The Navtej decision, though instructive, is not in itself a legal pivot for Singapore. It is substantially premised on legal recognition that every individual has a right to privacy. This translates to a "right to be left alone… to enjoy life".

While the comparable constitutional provisions are broadly similar, Article 9 of our Constitution has for some time been construed more narrowly. Our courts do not recognise privacy as a constitutionally protected right. Personal liberty in Article 9 has been interpreted to mean freedom from unlawful incarceration. Nevertheless, much that was said in Navtej will resonate with many here.

For instance, it was compellingly emphasised that fundamental rights should be insulated from the "disdain of majorities", whether legislative or popular.

The parts of India's Section 377 that criminalised private male homo-sex were held to be "irrational, indefensible and manifestly arbitrary", violating lesbian, gay, bisexual, transgender, queer, intersex ("LGBTQI") rights to equal citizenship and protection under the law without discrimination.

The court held that the provision failed to recognise that consensual intercourse within private confines is not harmful to society; what was in fact harmful was the stigmatisation that the criminal prohibition caused to members of the LGBTQI community.

Interestingly, the Indian government took a neutral stance on this matter. While the Bharatiya Janata Party continues to be unwaveringly opposed to gay marriage, it has adopted a policy of "no criminalisation, no glorification" - a momentous step for the right-wing Hindu party in a conservative country.

PARLIAMENT AND SECTION 377A

In the local context, indecent acts in public of any nature are already amply proscribed without Section 377A. In continuing to criminalise consensual private male homo-sex, Singapore is adhering to peculiar Victorian mores that now seem to have been duly discarded in all First and Second World democracies.

In the wake of extensive Parliamentary deliberations on Section 377A in 2007 culminating in the contentious decision to retain the provision, strong and polarised reactions to this issue persist in our society. The notion that decriminalisation is warranted only after a societal consensus is reached may be seen as an expedient rather than just approach.

From a legal point of view, the assurance given in Parliament that Section 377A although not repealed will not be enforced, is constitutionally unsatisfactory. The Government, or even Parliament for that matter, cannot selectively decide which laws in force to enforce.

The public prosecutor alone is constitutionally charged with the responsibility for enforcement. He is duty bound to consider enforcement of all laws that are infringed. Selective enforcement of laws undermines the rule of law, creating perceptions that prosecutions can be directed by the Government or pursued on non-legal grounds.



SINGAPORE CASE LAW

In 2014, the Court of Appeal in Lim Meng Suang upheld the constitutional validity of Section 377A, deeming it to be consistent with the protection accorded in Article 12 (1) of the Constitution that "all persons are equal before the law and entitled to the equal protection of the law".

In other words, laws cannot be discriminatory in their application or enforcement. That said, many laws validly differentiate between different classes of people: for instance, the Accountants Act exclusively yet legitimately regulates public accountants. So, the important question is how to decide whether a law is not merely legitimately differentiating but unduly and unconstitutionally discriminatory.

To this end, the courts employ a "reasonable classification" test: First, the classification prescribed by the law must be based on an intelligible differentiating factor; and second, the differentiating factor must bear a rational relationship to the purpose intended by the law. So, in the case of the Accountants Act, the differentiating factor is that it applies exclusively to registered public accountants, and that factor bears a rational relationship to the intended purpose of the Act, which is to regulate the profession of public accountants.

In Lim Meng Suang, the Court of Appeal decided that Section 377A passed the reasonable classification test. First, the differentiating factor on which it was based was intelligible and easy to understand: Section 377A criminalised only male homosexual sex and nothing else (not even female homosexual sex).

Second, that factor bore a rational relationship to the intent and purpose of Section 377A, which was apparently to criminalise that very conduct. The Court of Appeal also decided that Section 377A should be presumed to be constitutional, unless shown otherwise by the person challenging it.

CONCERNS OVER THE 2014 DECISION

However, the decision in Lim Meng Suang is inherently unsatisfactory and raises a number of concerns.

First, Section 377A is a pre-Independence provision imposed by the British in 1938, principally to bring the criminal laws of what were then the Straits Settlements "into line with English criminal law" in other parts of the colonial empire. But beyond that historical basis, the Court of Appeal conceded that the original purpose of Section 377A was indeed obscure.

The speech of attorney-general C. G. Howell in June 1938, in introducing what ultimately became Section 377A, was found by the Court of Appeal to be "extremely cryptic". The court concluded that "what objective evidence we have on the purpose and object of Section 377A is itself unclear".

In such disquieting circumstances, Section 377A should not and could not have been presumed to be constitutional. Once the court found the objectives of the provision to be opaque, it should have struck down the provision definitively, instead of attempting to give it life by referring to post-legislative material not placed before the colonial legislature.

The presumption of constitutionality should not have applied to such a dubious, stand-alone legal provision introduced willy-nilly across a host of disparate colonies across the British empire. It bears mention that around the same time, i.e. in February 1938, the Singapore naval base, Great Britain's impregnable eastern fortress, was completed. There is material suggesting that Section 377A may therefore have been introduced for a collateral purpose i.e. to maintain discipline within the exclusively male British forces. If the British were genuinely concerned about male debauchery in the context of the local population, then why introduce this to Singapore only in 1938 when a similar provision had already been imposed on Hong Kong in 1885?

Second, given the lack of clarity surrounding the historical intent and purpose of Section 377A, it should not have passed the reasonable classification test.

An archaic Victorian law that punishes only men for private acts can hardly be seen to satisfy the high constitutional standards required for a discriminatory law to be valid. Section 377A seems to have served no useful general social purpose apart from targeting male homosexual conduct.

Third, there is a difference between Section 377A and the Accountants Act. There is no inherent right to be an accountant, and one must actively choose to become an accountant. In sharp contrast, secular societies recognise that a key facet of human dignity is the right to have private, consensual, non-procreative sex between adults.

Some of Singapore's most senior political leaders (including founding prime minister Lee Kuan Yew) have accepted that homosexuality is an innate genetic trait. From this perspective, it is no different from all other distinctive attributes that each of us is born with. Criminalising private male homosexual sex could by logical extrapolation be the basis for discriminating against other genetic differences as well.

Fourth, Section 377A does not embody a universal value, religious or otherwise. It originated from a Victorian construct of Christianity and is premised on beliefs that are shared only by a limited number of monotheistic religions. Significantly, since 1988, Israel stopped regulating same-sex activity.

Religious views, insofar as these are not universal, are not an ideal lodestar for governance in a secular state. For instance, some religious texts view adultery with the same degree of abhorrence: but why is adultery not criminally proscribed as well? Such conduct is inherently very harmful as it damages families. Ironically, in 2007, Parliament deliberately removed the last remaining law proscribing adultery by abolishing the offence of criminal enticement.

HOW RELIABLE ARE OPINION SURVEYS?

Surveys have been regularly wheeled out to gauge and express public opinion. However, surveys on matters that offend ideological views are often contestable. Considerable care should be exercised before according them weight. Experience and science have shown that the findings of such surveys grossly depend on and vary according to who is asked, what questions are asked, how they are asked and who asks them. There may also be a tendency in such matters for participants to try to give the politically correct responses. No simple survey can seek to satisfactorily query or explain why private same sex between females is somehow more acceptable than between males.

THE CURRENT STAND-OFF

If it is accepted that sexual orientation is naturally pre-determined, then it is baffling that a significant minority should be criminally stigmatised for behaving naturally, simply because other sections of the community find their behaviour offensive.

A line can certainly be drawn between private "self-regarding" conduct, and public "other-regarding" conduct. Certain laws, such as those designed to prevent self-harm like sado-masochism and necrophilia, can be legitimately paternalistic. Section 377A is not one of them, even if it is not universally accepted that individuals "are born that way".

How will the present stand-off be resolved? The courts have lobbed the problem back to Parliament, which in turn is waiting for a consensus to emerge. If anything, the differences today are significantly more pronounced than they were in 2007. Meanwhile, significant numbers of our citizens harshly continue to be deemed criminals.

ACCEPTANCE AND UNDERSTANDING IN PLACE OF CONDEMNATION

Statements made by bodies opposing the repeal of Section 377A fail to consider the trauma exacted on individuals labelled as a criminal minority. Deep repercussions arise from the public tendency to view all legally tagged criminal conduct as grossly reprehensible.

To that extent, conceding that such a law will not be enforced is cold comfort to those statutorily condemned. Conflicts within families and ostracisation are not uncommon as some teens grow up to discover that they are "different". International studies have reflected inordinately high suicide rates among LGBTQI youth as a group. A palpable lack of acceptance and support could well be a contributing factor. Although no local statistics have been published on the topic, it would be surprising if the position here should be any different, especially with the added stigma of criminalisation.

A society is to be judged for its fairness by the compassion it shows to its most vulnerable citizens and the measures it takes to reduce their suffering. Yes, Singapore is a conservative society. But it also aspires to be a more equal and inclusive one. It is highly unlikely that a consensus on this topic will ever be reached, especially when significant opposition is fuelled by implacable religious and moral dictates. Ideology can both bind and blind, with condemnation unduly eclipsing compassion. This will have the unfortunate effect of further dividing rather than healing society.

Understandably, there are concerns that repealing Section 377A could be the thin end of the wedge, inexorably moving towards same sex marriage and same sex adoptions. Nonetheless, other conservative Asian societies such as China, Japan, South Korea and now India have shown that a line can in fact be drawn without criminalising such conduct, even while societal mores evolve organically. Concerns about future imponderables do not justify the continued criminal stigmatisation for an innate trait.

Even if one were to insist that such a trait is not innate, it is not the province of either the State or society to regulate such inherently private consensual conduct among adults.

V. K. Rajah is an international arbitrator and independent legal counsel. He was Attorney-General from 2014 to 2017 and has been a judge on the Supreme Court and Court of Appeal.






Section 377A: A contemporary, important law

The law criminalising sex between men draws a clear line that homosexual acts are not on a par with heterosexual ones. Remove that, and traditional marriage and family norms - and one day, even freedom of religion to object to homosexuality - will come under threat.
By Thio Li-ann, Published The Sunday Times, 7 Oct 2018

Former attorney-general V. K. Rajah's article Section 377A: An Impotent Anachronism (Sept 30, The Sunday Times) contains some contestable statements, while raising interesting constitutional issues about the separation of powers and the court's role in addressing politicised, morally controversial questions.


My argument here is that section 377A of the Penal Code prohibiting sex between men is a law of contemporary relevance and substantive importance. It goes beyond mere symbolism or placating religious views. The policy that section 377A will not be proactively enforced departs from the prior policy of pro-actively raiding gay groups. It falls within the executive's discretion to determine what resources to commit to enforcing various offences.


Mr Rajah argues that the state should not criminalise consensual sexual conduct between adults and asserts that homosexuality is an innate trait, not chosen behaviour.


But "consent" cannot be the final basis for governing the private sexual activity of two or more consenting adults; if it were taken to its logical conclusion other laws such as section 376G Penal Code, which prohibits consensual adult incest, should be repealed. This has happened in Spain and France; there are calls in Denmark and Germany to decriminalise incest on the basis of "the fundamental right of adult siblings to sexual self-determination". I doubt Singapore wants to move down that path.


"Consent" while important is not an absolute value - for example, you cannot consent to sell your kidneys or your vote. Another philosophical rationale is needed to determine the scope and limits of permissible "consent" arguments.


Whether homosexuality is genetically innate, chosen behaviour, or a mix, is a highly complex matter. The science here is not cold and hard, but hotly politicised. For example, the American Psychiatric Association decided in 1973 to remove homosexuality from the list of Mental Disorders in the Diagnostic and Statistical Manual (DSM) not on the basis of hard scientific evidence for the genetic or neurological basis for homosexual orientation but due to political pressure exerted by gay lobbyists within the APA, as recounted in Ronald Bayer's book entitled Homosexuality And American Psychiatry: The Politics Of Diagnosis (1987) published by Princeton University Press.


Gay activists decided that if APA policy could be changed, all other mental health organisations would follow. They used intimidating strategies like violent protests, disruption of meetings and interrupting speeches to force a review on whether homosexuality should be a disorder.


Mr Rajah argues that laws criminalising innate traits are not justifiable, but as the science behind the innateness or otherwise of homosexuality is politicised and contested, are courts the right venue to lead social reform from the bench, contrary to case precedent and representative democracy? In any case, whether homosexuality is innate or not, it certainly does not follow that the law should not regulate innate or genetically determined behaviours or traits, for example, addictive or murderous tendencies.


Further, it should be clear that S377A does not criminalise human beings, but human behaviour. Some might fault this reasoning, while others consider it reductionist to assume "we are what we do". While all human beings have intrinsic worth, not all human conduct is equally worthy.


THE ROLE OF JUDGES


While the India decision declaring its equivalent Section 377 to be unconstitutional has attracted much attention worldwide, Singapore courts do not follow the activist proclivities the Indian Supreme Court has demonstrated. Indian courts have expansively construed the right to "life" to include the right to livelihood, education and a certain standard of living. While these are good things, in the absence of express, judicially enforceable constitutional right to these goods, it is for Parliament and the executive to attend to matters like housing and public education, not the courts, in respecting the separation of powers.


Many consider it illegitimate for unelected judges invoking their subjective moral preferences to "create" un-enumerated rights. This sustains the suspicion that "make it up as you go along" type of non-legal reasoning is being deployed.


To assert by judicial fiat that there is a "fundamental right" which the Constitution does not expressly recognise in its text begs the question: Which rights are fundamental, who decides this, using what criteria? How might an alleged "fundamental right" undermine competing rights and interests? To assert that something is a putative right because one thinks it is valuable is not an argument, but an asserted preference. More compelling reasoning is required.


One key aspect of the rule of law is that judges should not engage with political questions, as this degrades the rule of law to "rule by judges". This phenomenon, called "juristocracy", where judges are seen to be acting as a super-legislature by illegitimately interfering with politicised issues, undermines the constitutional separation of powers principle.


Singapore Courts have consistently affirmed they will not make law from the bench and refrain from usurping Parliament's job "under the guise of constitutional interpretation". This accepts that Parliament is best positioned to holistically examine the depth and breadth of morally contentious issues with far-reaching social consequences, such as the debate whether to repeal or keep 377A.


To assert that the values underlying a law are inconsistent with a "multi-religious secular society" wrongly assumes that the law's sole purpose is to entrench dogmatic religious views. The courts have found through examining the historical record, that 377A, where it was enacted in 1938, served a clear purpose: It protected societal morality.

It complemented section 23, Minor Offences Ordinance and section 377, 1936 Penal Code, by extending the criminalisation of public indecent behaviour between males to private acts and broadening the range of behaviour caught by section 377 beyond anal-penetrative sex to include less serious grossly indecent acts between males.


The law clearly identified its target (male homosexual conduct) which was rationally related to and advanced its clear purpose (to criminalise this conduct). Thus, the Court of Appeal upheld the constitutionality of 377A, which satisfied the "reasonable classification" test.




THE ROLE OF RELIGION IN THE DEBATE


It is a red herring to invoke the apparently religious origins of a law to divert attention from the real issue: Whether the law serves the common good of society as a whole today, and secures the liberties of others. In countries where sodomy has been decriminalised and same-sex marriage elevated to a constitutional right of equality (which accepts the ideology that homosexuality and heterosexuality are equivalent), arguments based on this model of "equality" have been used to trump freedom of religion. Opinions disapproving of the homosexual lifestyle or same-sex marriage (but which do not incite physical harm) are demonised as "hate speech", chilling free speech and viewpoint diversity.


In a secular democracy, laws which serve solely to entrench religious dogma are problematic, as laws must serve the general good.

But a secular state does not preclude its religious citizens from participating in democratic processes. To exclude religiously influenced views from public debate is a form of militant secularism which is unfair and anti-democratic, serving to privilege secular humanist values by getting rid of competing views.

"Religious" and "secular" values may overlap, such as condemning murder and rape. All citizens have equal rights to participate in public debate, whatever the source of their values, articulating views according to their reason and conscience. It is prudent in a plural society to communicate views persuasively, in a manner all may understand so that the merits of each view and how it relates to the common good may be critically evaluated.

WHY 377A CANNOT BE CONSIDERED IN ISOLATION

Some argue that pointing to the negative consequences that have taken place in other jurisdictions decriminalising sodomy is a "slippery slope" argument and that one should just consider the narrow, discrete issue of whether 377A is just or unjust in prohibiting homosexual sex. This is a red herring in seeking to obscure or diminish the consequences of repeal; these consequences are reasonably forseeable and not speculative, both in terms of empirically observing developments in other jurisdictions and in terms of legal principle as there is a straight line between decriminalising sodomy and down the line, legitimating same-sex marriage: Both rest on the same premise that homosexuality should be seen to be on a par with heterosexuality in terms of public sexual morality norms.

Further, gay activists in Singapore have publicly listed their demands which go way beyond repealing 377A; these include having registered societies to promote the homosexual agenda and ensuring children receive homosexuality-affirming "accurate sex education".

It is pivotal to their cause to repeal 377A as a first step to advance a broader agenda to normalise same-sex relationships, which demonstrates that 377A is not merely symbolic but substantive.

Homosexual activists have pointed out societies cannot promote criminal activity and thus 377A inhibits the promotion of their ideological agenda and demands that society conform to their vision of sexuality.

377A stands in the way of demands to positively portray, even celebrate same-sex relationship through vehicles such as free-to-air media programming and in school curricula, to fuel agitation to legalise same-sex marriage and child adoption by same-sex couples. The consequences of repeal are intertwined with the call for repeal and demand strict scrutiny, rather than being tactically ignored, minimised or misrepresented.

The consequences of repeal are not something which should be addressed "after" repeal, but in conjunction with the question of retention/repeal, to which they are inextricably linked.

The radical social changes that accompanied repeal of equivalent laws elsewhere is something to be considered seriously rather than waved away as a "slippery slope". Indeed, we put up signs to warn people about the real dangers of slippery slopes, lest they injure themselves. This is not done lightly or without reason.

The experience of other jurisdictions shows that decriminalising sodomy does often lead to subsequent activism for policy and legal changes towards the progressive normalisation of same-sex relationships in the name of "equality" and non-discrimination, coercively mandating the equation of homosexuality and heterosexuality.

In Canada, the refusal of a religious tertiary institute to support a non-traditional definition of marriage became grounds for legal action in the name of "marriage equality". Christian bakers whose conscience shaped their refusal to bake cakes with pro-gay messages, regardless of who the customer is, have been sued on the basis of anti-discrimination legislation. In the UK, persons who do not believe homosexuality is normative are not permitted to be foster parents.

Many more examples of how the homosexual rights agenda erodes the freedoms of others exist. This is the end game that the current debate must consider.

This is why it is important for Section 377A to stand and be upheld explicitly. Laws criminalising sodomy convey the message that society does not view homosexual acts on a par with heterosexual ones, drawing a distinction between both. If this distinction is erased, there is little basis to continue depriving this category of individuals the right to "marriage", as redefined. This entails departing from the conjugal view of marriage as a committed union of a man and woman which is intrinsically ordered towards procreation. This views sex as both unitive and procreative in nature and sees the family as the basic unit of society for child-bearing and rearing. Proponents seeking the repeal of 377A in substance propose a different vision of sexual couplehood, family and society.

To point to the colonial origins of a law is a misleading distraction; it says nothing about whether the law is good or bad. While 377A was brought into the colony of Singapore in 1938, it was retained as Singapore law after independence in 1965; it was thoroughly debated and ratified by Parliament in 2007 in an exercise of self-determination in contouring a sovereign nation's political, economic and social system. In a sense, it adopted 377A afresh.

There are numerous types of sexual orientations - however, are all equally deserving of social approval? This is an important policy question. For now, incest is clearly disapproved, but if the traditional marriage framework is abandoned, where do we draw the line?

It may be helpful if the individual component parts of the lesbian, gay, bisexual, transgender, queer, intersex (LGBTQI) political alliance could clarify what each part is seeking, so that their specific demands can be better understood and evaluated.

Those lobbying for the repeal of 377A advance a political agenda, which like all political projects, seek to seize political power, displace their competitors who resist repeal and bring about legal change, with radical, deleterious social consequences.

To be fully informed, concerned citizens and responsible parliamentarians must ask: What consequences will any legal change engender?

Dr Thio Li-ann is a Professor of Law at the National University of Singapore. She was a Nominated Member of Parliament (2007-2009).




Government has not curbed public prosecutor's discretion for Section 377A: Attorney-General Lucien Wong
Police, prosecution retain independence in deciding whether to pursue case, he says
By Jonathan Wong, The Straits Times, 3 Oct 2018

The Government has not removed or restricted prosecutorial discretion for Section 377A, Attorney-General Lucien Wong said in a statement released yesterday.

He noted that former attorneys-general Walter Woon and V.K. Rajah "have recently suggested that it is not desirable for the Government and Parliament to direct the public prosecutor (PP) not to prosecute offences under Section 377A of the Penal Code, or to create the perception that they are doing so".

"Such comments may give rise to the inaccurate impression that the exercise of the PP's discretion has been removed or restricted in respect of Section 377A."

Mr Rajah had written a commentary in The Sunday Times this week in which he noted that "from a legal point of view, the assurance given in Parliament that Section 377A (the provision that criminalises sex between men) although not repealed will not be enforced, is constitutionally unsatisfactory".

On the Ready4Repeal website, National University of Singapore law professor Woon said: "We cannot have a crime which is not enforced. The Government should not tell the public prosecutor that some things are crimes but there will be no prosecution."



A-G Wong stressed that the police, when conducting investigations into an offence under 377A, "will decide whether or not there is sufficient basis to refer the case to the PP". "It will then be for the PP to determine whether to prosecute. In doing so, the PP exercises his independent discretion on whether to charge the offender, solely on the basis of his assessment of the facts, the law and the public interest.

"While the PP is entitled to consider public policies in exercising his discretion, these do not fetter the exercise of prosecutorial discretion."

He also noted that "the Government's position on Section 377A is that the police will not proactively enforce this provision, for instance, by conducting enforcement raids".

"However, if there are reports lodged by persons of offences under Section 377A, for example, where minors are exploited and abused, the police will investigate."

To illustrate this point, he cited an example of how, in 2008, then Deputy Prime Minister and Minister for Home Affairs Wong Kan Seng "explained that in the case of an offender who had been charged under Section 377A of the Penal Code, a police report was lodged by a 16-year-old male who had oral sex with the suspect".

The police referred the case to the PP after completing investigations, A-G Wong said, and the PP "decided to charge the accused under Section 377A after taking into account all the facts and circumstances of the case, including the complainant's age and the fact that the offence had taken place in a public toilet".

A-G Wong noted: "The PP’s exercise of prosecutorial discretion has always been, and remains, unfettered. In the case of Section 377A, where the conduct in question was between two consenting adults in a private place, the PP had, absent other factors, taken the position that prosecution would not be in the public interest. This remains the position today."

The Supreme Court of India's decision on Sept 6 to strike down Section 377 of the Indian Penal Code, which made consensual gay sex a crime, renewed the debate about Section 377A here, with some prominent Singaporeans, including veteran diplomat Tommy Koh, urging a court challenge to the law.



Several religious organisations in Singapore have spoken out against repealing the law, including the National Council of Churches of Singapore and the head of the Catholic Church in Singapore, who said the law should not be repealed undercurrent circumstances. The Singapore Islamic Scholars and Religious Teachers Association said a repeal of Section 377A could cause several "worrying implications".

A committee which was set up in 2016 to conduct a wide-ranging review of the Penal Code submitted its 500-page report and recommendations to Law and Home Affairs Minister K. Shanmugam on Aug 31.

Among its 169 recommendations, it called for marital immunity for rape to be removed and for attempted suicide to be decriminalised. It also proposed further protection for minors from sexual predators, as well as enhanced punishment for crimes committed against children, maids and adults with mental or physical disabilities who cannot fend for themselves.

Section 377A was not part of the review.





V. K. Rajah: Opinion piece reiterates prosecutorial discretion

I refer to the Straits Times report, "Government has not curbed public prosecutor's discretion for Section 377A: A-G Lucien Wong" (Oct 2).

Far from suggesting that the public prosecutor (PP) does not retain the sole discretion to prosecute, my Insight piece in The Sunday Times affirms and reiterates such prosecutorial discretion. And that is precisely why the present situation is so unsatisfactory.

Each new PP could very well take a different and subjective view of what circumstances merit prosecution.

In this connection, the following observations made by a current deputy attorney-general, Mr Hri Kumar Nair, on Oct 22, 2007 (in Parliament, while he was an MP), are both prescient and pertinent:

"...it is unclear what the current legal position is.

"…Does it mean that the police will not act on complaints or that suspects may be investigated but ultimately not arrested or prosecuted? Or is it the case that the Attorney-General (A-G), who has prosecutorial discretion, may prosecute some but not all offenders?

"That puts the A-G in a difficult position because selective prosecution will give rise to more issues. But if the intention is not to do anything at all, then what is the purpose of having the law? Does it not hurt our credibility that we have laws that are toothless?

"…in the long run, making some conduct criminal under our Penal Code whilst stating that the law will not be enforced, simply invites attacks on the integrity of the code."

As for the 2008 case referred to in the Attorney-General's Chambers statement, it is important to point out that the offending conduct in question occurred in September 2007, before parliamentary debates started. Further, the charge was not pursued although taken into consideration.

Reference might usefully be made to the 2010 case against Mr Tan Eng Hong. Mr Tan and his co-offender were initially charged under Section 377A, but the charges were withdrawn and substituted with different offences shortly after Mr Tan filed a challenge against the constitutionality of 377A.

As far as I am aware, these are the only instances when Section 377A was invoked after the 2007 parliamentary debates.

On Sept 8 this year, chief of government communications Janadas Devan made the following statement in his Facebook page: "But the Government does not and will not enforce 377A." This illustrates how ambiguous the present enforcement situation is.

V. K. Rajah
ST Forum, 5 Oct 2018





Attorney-General Lucien Wong: Public prosecutor's stand on Section 377A consistent

Mr V. K. Rajah's letter states that: "Far from suggesting that the public prosecutor (PP) does not retain the sole discretion to prosecute, my Insight piece in The Sunday Times affirms and reiterates such prosecutorial discretion." (Opinion piece reiterates prosecutorial discretion; Oct 5).

In his Insight piece, Mr Rajah had said that: "Selective enforcement of laws undermines the rule of law, creating perceptions that prosecutions can be directed by the Government or pursued on non-legal grounds."

The purpose of my statement on Tuesday was to dispel any such perception by making it clear that where the police refer cases under Section 377A of the Penal Code to the PP, the PP exercises his discretion on whether to charge the offender and for what offence, based on his assessment of the facts, the law and the public interest.

In his letter, Mr Rajah himself affirms and reiterates this.

Mr Rajah will also agree that the PP is able to exercise such discretion without any interference.

I had also highlighted a 2008 case which illustrates the Government's and the prosecution's respective longstanding approaches to Section 377A cases.

Mr Rajah suggests that this case may not be relevant as the offending conduct occurred in September 2007, before the parliamentary debate on Section 377A.

However, the Government's position that the police will not proactively enforce Section 377A with respect to private acts had been made public since at least 2006.

When the Ministry of Home Affairs launched the public consultation on proposed amendments to the Penal Code, The Straits Times reported that: "While it is still technically illegal for men to have sex with other men, the ministry reiterated that it will not be proactive in enforcing this law against consensual acts that take place in private." (Law on 'unnatural' sex acts to be repealed; Nov 9, 2006).

The PP has consistently taken the position that, absent other factors, prosecution under Section 377A would not be in the public interest where the conduct was between two consenting adults in a private place.

This was the case when Mr Rajah was the PP and remains so today.

Lucien Wong
Attorney-General
ST Forum, 6 Oct 2018





Related
Penal Code Review: Proposals aim to better protect vulnerable

Attorney-General’s Chambers: Government has not removed or restricted prosecutorial discretion for Section 377A, Public Prosecutor retains full prosecutorial discretion -2 Oct 2018

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