TNP: Heated debate over gay law, if it's not enforced, why keep it? (Oct 24)

Wednesday, October 24, 2007

The Electric New Paper :
Heated debate over gay law
If it's not enforced, WHY KEEP IT?

THERE'S no question about it - it's illegal to have gay sex in
Singapore, whether in public or private.
By Low Ching Ling

24 October 2007

THERE'S no question about it - it's illegal to have gay sex in
Singapore, whether in public or private.

But how often has Section 377A of the Penal Code, which criminalises
such acts, been used to punish two consenting men who have sex in
their own homes or in a private space?

Lawyers say it's unheard of.

The Government has said it would not actively prosecute people under
Section 377A.

Associate Professor Ho Peng Kee, Senior Minister of State for Home
Affairs and Law, reiterated this point in Parliament yesterday when he
said the Government would keep the status quo.

But those who have called for the law to be abolished have asked: Why
keep it if it's not enforced?

Mr Siew Kum Hong, who tabled a petition asking for the law's repeal,
said the Law Society had noted that keeping the law is 'out of step
with legal norms in the modern law'.

He also quoted NUS law professor Michael Hor as saying: 'The moral
force of the criminal law is blunted if there are crimes which are,
the Government assures the public, never to be enforced.'

MP and lawyer Hri Kumar asked: '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?'

But is Section 377A purely symbolic?

Prof Ho disagreed. He said it has been used to prosecute grown men who
had sex with underaged boys.

Mr Kumar said that between 1988 and 2003, there were eight convictions
under Section 377A. Two convictions were for the same incident.

He added: 'It has not been invoked in respect of consensual sex since
1993. So this law is rarely applied, or if applied, it applies to
minors or to acts in public.'

MP Christopher De Souza pointed out that enforcement alone cannot test
how effective a law is. 'For example, to attempt suicide is an offence
in Singapore. Yet, how many people are prosecuted for it? I dare say a
negligible percentage of those who do attempt suicide,' he said.

'Yet, the offence remains on the books even after this amendment
because it conveys the message that we do not want people taking their

'Will that message become weaker if the offence is taken off the
books? Yes.'


Does repealing Section 377A harm society? This was also one of the
main points of the debate in Parliament.

Mr Siew pointed out that the Home Affairs Ministry had said the Penal
Code review was intended to make the Code 'more effective in
maintaining a safe and secure society in today's context'.

But, Mr Siew added, Section 377A criminalises gay sex even behind
closed doors.

'How does the private sexual conduct of consenting adults make
Singapore unsafe or less secure?' he asked.

He argued that criminal law should be used for activities that harm

'Instead, (the Government's) reasons for retaining 377A are that the
majority of Singaporeans disapprove of homosexuality, and so 377A
should be retained to reflect, or 'sign-post', this majority view of

' he said.

'But reflecting the morality of the majority is not a stated aim of
the Penal Code. Nor is it an accepted objective of the criminal law.'

But MP Indranee Rajah had a retort.

'What about the distribution of pornographic material? You could, if
you wanted, to take the same argument, say the distribution of
pornographic material has nothing to do with a safe and secure
society,' she said.

'It's not a threat to a person or to property. But all of us recognise
or accept that the distribution of pornographic material should be
regarded as an offence.

'When we look at the safety and security of Singapore, we also look at
the question of public morals, public decency, public order.'

Mr De Souza said the repealing of Section 377A would have other
consequences on society such as the push for legal gay marriages,
adoption of children by gay couples, spousal rights and effects on the
education of the young.

Ms Indranee called for a compromise between the majority and minority

'Once you have different groups living in a society, you have to
accept there will be some restrictions on behaviour...

'One group says, 'I want this.' Another group says, 'No, I want that.'
How do you decide?

'You have to come down to a decision one way or another, and in most
cases, you will go with the majority view. Unless there is a reason to
protect the minority position.'