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, the attorney-general to prosecute, 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, the government of Minilee 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.