18 October 2007

The conservative case for 377A

Gabriel Seah has recently argued that the energies of the state and the activist citizens of Singapore should not be spent on a campaign to repeal Section 377A of the Penal Code. The act criminalises homosexual sex as unnatural gross indecency, yet for all that it's worth, various leaders of the state (i.e. father and son) have stressed repeatedly that this law will not be enforced.

For male homosexuals in Singapore, a curious state of affairs now exist: the very acts that some say define their existence are illegal, yet these theoretical criminals are free to practise their lifestyle choices, free of legal persecution. J.Tan may froth at the mouth, alleging continued persecutions of homosexuals, but the fact remains - and is acknowledged even by Alex Au, leader of the gay equality movement in Singapore, that the only instances of prosecution since 1988 have been in cases involving minors, non-consensual sexual activity and public play.

Practically speaking, gay people can pretty much practise whatever they want, wherever they want, in the privacy of their homes or business establishments (clubs, spas, etc). They are free even now to strike up friendships in singles bars, attend the ubiquitous gay-themed plays at Theatreworks and other stage productions, and so on. We can no longer speak of active persecutions, only the usual restrictions against political organisation (aka registration of PLU) and perhaps civil marriage (a fight for another day) and inheritance and maintenance of spouse and surviving children (then again, HDB rules disadvantage single mothers too).

Yet for a conservative, this fine balance or legal impasse is intolerable. Singapore is first and foremost a nation run by the rule of law. That we as a populace observe its laws, that Singapore as a polity lays down laws and regulations, is the key to its success. Singapore is not a cowboy town, not a free-for-all; we are not ruled by strongmen and robber barons, for our laws ensure that Singapore is seen as a predictable and safe place to do business, and to nurture businesses.

Singapore, run by the rule of law, is seen as a well-run polity. Laws are reasonable and logical, otherwise they won't be laws. Our legislators make good laws, simplify complicated ones, and remove those that no longer serve the state.

Our leaders refuse to enforce Section 377A for moral reasons: Minilee believes that "some people are like that and some people are not. How they live their own lives is really for them to decide, it's a personal matter." In other words, this law is not enforced because it does not have a legal basis.

For it to remain on the books is to say that we have a law where the leaders forbid the police to enforce and the judges to administer. Given that we all agree not to enforce 377a, not repealing it means that we now proclaim to the world Singapore does not take its laws seriously - some laws will never be enforced because they are wrong and baseless, yet there they are on the statutes, as fully legal as every other law on the statutes...

If one law is seen to be unfair yet legal, legal yet unenforced, then we make a mockery of the system, and encourage people to think they too can decide which laws society should not enforce. Worse, we encourage a mindset where people disrespect the legal framework and undermine it. By letting one toothless law stay on the statutes just for show, encourages others to cherry pick other laws as possibly unfair, just for show, and deserving of flouting.

Because one law does not apply, others will be encouraged to rely on their own personal interpretations of the constitution, to discover for themselves other laws that should not apply. Then as every man becomes the law unto himself, the rule of law will no longer hold sway in Singapore, chaos and riots will break out, and Singapore will be finished.

Singapore must not just be seen as a place where the rule of law prevails, but where the rule of law must be seen to prevail. Given that Section 377A is seen as legally unsound, that it is unenforceable, that the guardians of the state refuse to enforce it, they must therefore take steps to ensure that the law is struck down, and Singapore's legal framework is not undermined by this unenforced law.

4 comments:

Jol said...

Came across this as well and thought I'd share, FYI:

http://www.mha.gov.sg/news_details.aspx?nid=1091

We have no basis from these numbers for knowing whether the persons below the age of 18 were also below the age of 16 (the age of legal consent to sexual intercourse in Singapore) nor whether any of the other elements you cite were involved -- and if they were, why shouldn't they be proven in a court of law, as an element of an offence, to a standard of criminal proof, rather than lazily relying on this other statute? Doesn't the liberty of our citizens deserve more than that?

Also, is "public play" (rather unfortunate choice of words...) necessarily such a big problem, deserving of prosecution? I mean, okay, it's a nuisance. But all this hoopla about public toilets? I mean, I'm not about to have sex in one myself, but if you go to any nightclub, even, it's not like straight people don't get up to the same stuff in shady corners -- and it's just a bit of a prank and a nuisance. Hardly something to criminalise...?!

Jol said...

??

I left another comment besides the above?

XH said...

Good points, as always.

I made a slightly different one on the same thing (see link). I take it you read the papers this morning and "woke up"

akikonomu said...

Hi jol,

To a conservative, the prime consideration is: Are citizens treated fairly? There ought to be no special treatment for special classes of people, as far as possible; and no special persecution of special classes either.

Consider these 2 questions:

1. Is the prosecution of persons below the age of 18, but above the age of 16, not practised for heterosexuals, in cases of minors, non-consensual activity and public play?

2. Does "public play" lead to prosecution of heterosexuals engaging in lewd public displays (i.e. "public sex")?

The MHA link is interesting, but clearly the limited time in Parliament meant that Wong Kan-seng got away with giving away no details to help us.

I venture that as there have been "convictions under the Penal Code", clearly there were hearings conducted in a court of law.

Note that 377A itself does not make a distinction between acts committed by persons of any age group (above 18, above 16) - the distinction is only in practice and interpretations of the law by our judges.

Perhaps some students or practioners with access to Lawnet might want to help us with the information.

I didn't see any other comment by you... Perhaps blogger or the vast ethers of the internet ate it =\