ST Forum: MPs should be able to speak their minds freely (Nov 10)

ST Forum: MPs should be able to speak their minds freely

I WAS shocked and saddened to read of another threat being made against Nominated MP Thio Li-ann. A mark of real progress for our nation is when Members of Parliament, whether elected or nominated, can speak their minds on issues without being abused or threatened. Speaking for retaining Section 377A might have put Prof Thio in the
spotlight but she is not a one-issue person. She has, in fact, ably articulated views on other subjects, both in Parliament and in articles published by The Straits Times and academic journals. In many ways, she is a fine example of a person with a good mind and a clear voice whom we should encourage and support to enrich public discourse and help to define the content of our common good.

Any MP - and any thoughtful Singaporean - should be free to share his views without fear or favour, and none of them should be subject to any threat. Threats and bullying tactics are usually associated with gangsters, desperate people and tyrants in their attempt to silence good people and dismiss sound arguments.

Daniel Koh Kah Soon

ST: Thinking Aloud: 377A debate and the rewriting of pluralism (Oct 27)

Oct 27, 2007
THINKING ALOUD
377A debate and the rewriting of pluralism
By Janadas Devan

I CONFESS: I found the parliamentary debate on Section 377A of the Penal Code exceedingly depressing. It is no fun at all finding oneself holding a view - I believe the provision is odious and should be scrapped - with so little support.

Of the 82 PAP MPs, only 3-1/2 expressed views that resembled mine – Mr Charles Chong, Mr Hri Kumar and Mr Baey Yam Keng. The half was Ms Indranee Rajah, who suggested 377A might be scrapped at some point, only not in this century. Her citation of how long it took to end slavery suggested we might have to wait roughly 2,500 years.

Of the nine NMPs, only one, Mr Siew Kum Hong, who presented the citizens' petition calling for the repeal of 377A, stood up for homosexuals. And among the three opposition MPs, none did.

My depression was infinitely deepened when I read NMP Thio Li-Ann's parliamentary phillipic - entitled Two Tribes Go To (Culture) War – as well as her Insight article yesterday. She was brilliant, incisive, learned, witty and civil. The 'moral conservative majority' has found a formidable warrior - notice that 'War'; and my side - the immoral liberal minority? - was left looking stupid, speechless, confused, sour-faced and uncivil.

Consider how she tore to shreds so many of our cherished beliefs. The idiots that we are, we had believed 'pluralism' meant, among other things, 'autonomy and retention of identity for individual bodies', a 'society in which the members of minority groups maintain their independent cultural traditions', 'a system that recognises more than one ultimate principle or kind of being', as the Oxford English Dictionary puts it.

But we were wrong. 'Democratic pluralism,' Prof Thio wrote incisively yesterday, 'welcomes every view in public discussion, but does not commit the intellectual fallacy of saying every view is right. The goal is to ascertain the right view for the circumstances.

' That means that under certain circumstances - to be determined by whatever passes
for the majority at any moment, I suppose - pluralism can insist on a singular 'ultimate principle or kind of being'.

We silly fellows had also misunderstood the nature of secularism. We had thought it meant separation of religion from the state, politics and public policy. We were wrong. As Prof Thio explained trenchantly in her 'culture war' speech: 'Religious views are part of our common morality. We separate 'religion' from 'politics' but not 'religion' from 'public policy' (emphasis mine).

I never knew that! I had always assumed that it was necessary to separate religion from politics as well as public policy, for it was impossible to separate public policy from politics, and both from the state. But it turns out my assumption was baseless.

Jawaharlal Nehru, a Brahmin who insisted on untouchability being banned in the Indian Constitution despite the opposition of many caste Hindus, simply did not understand a thing about secularism. Bishop Desmond Tutu, a Methodist who insisted that discrimination against homosexuals be prohibited in the South African Constitution, was similarly clueless. And all those Enlightenment chaps in powdered wigs who insisted on the separation of church and state in the United States - in part, because there was no 'common morality' among religions - well, silly fellows, they knew nothing.

Yes, I must admit, Prof Thio demolished my side with astonishing ease. First, her big guns - pluralism is not plural; secularism can be religiously informed - left us limbless. Then, equally impressively, the cultural warrior sliced and diced us with her rapier wit and uncommon civility. We were finally left with our torsos tossed into ideological ditches and our heads stuck on cultural pikes.

'To say a law is archaic is merely chronological snobbery,' she thundered, referring to 377A. That sent me reeling. So original! So conclusive! So brilliant!

'Chronological snobbery' was first coined by Owen Barfield and C.S. Lewis, two eminent British popular theologians. It first appeared inprint, I think, in Lewis' moving spiritual autobiography, Surprised By Joy. Lewis and Barfield coined it to stigmatise modern 'intellectual fashions' that they thought consigned unfairly religious faith to a seemingly unregenerate past.

Prof Thio, a most learned person, must have known of the origin of this phrase in theological controversy, and she brilliantly extended it to the law. And if one linked this extension to the profound truths she uncovered about public policy in a secular state, one would see how her stigmatisation of 'chronological snobbery' can be extended further still. All those in favour of teaching 'intelligent design' alongside Darwin's theory of evolution in schools, raise your hands. Done! Education Ministry, please take note.

Then there was her wit, deployed so civilly. Anal sex is like 'shoving a straw up your nose to drink', she said. A colleague of mine googled that and discovered it was an often cited image in American anti-gay pamphlets. To top that, she said 377A must be kept on the books so we can say 'Majullah Singapura', not 'Mundur Singapura'. If you did not get the joke, here is a clue: Mundur means 'backward' in Malay, and 'backward' here alludes to that 'straw' and another orifice. See? Now, isn't that funny?

Oh, I cried when I read that. Imagine that: The moral conservative majority makes better vulgar jokes than the immoral liberal minority - and in Parliament too. If the immoral minority cannot beat the moral majority even in this department, we are really and truly kaput.

What sent me into shock was the discovery that Singapore is actually the US. I am referring to Prof Thio's sources of inspiration. Google 'culture war' and you will discover them.

The term was made famous by Mr Patrick Buchanan, a right-wing conservative (many would say zealot) who challenged former president George H.W. Bush, a moderate, for the Republican presidential nomination in 1992. At the Republican convention that year, Mr Buchanan alarmed many Americans by declaring: 'There is a religious war going on in our country for the soul of America. It is a cultural war, as critical to the kind of nation we will one day be as was the Cold War itself.'

Once one understands the milieu from which this statement issues, one would understand the origins of Prof Thio's profound understanding of pluralism and secularism. It does not derive from the Enlightenment or from contemporary Europe or Asia. It derives from the American religious right. It is they who insist pluralism cannot ultimately be plural; it is they who demand public policy be informed by religious beliefs.

And all but a few thumped their seats when Prof Thio finished her speech? They must have missed the radical - yes, radical and extreme - nature of her claims. One person who did not, I think, was Prime Minister Lee Hsien Loong. My colleague Chua Mui Hoong reported he did not thump his seat.

That lifted my depression somewhat. I did not like one bit the upshot of the Prime Minister's speech - that 377A will stay because the majority, especially Christians and Muslims, are opposed to its scrubbing. But I was proud of what he had to say, and how he said it.

There are 'limits', he said, for homosexuals in Singapore. But there would be limits too, in how religious beliefs are applied in the policing of homosexuals. Section 377A will not be applied 'proactively' , he said - meaning, it will be inoperative.

Mr Stuart Koe, chief executive of gay Asian portal Fridae.com, was wrong to liken 377A to a gun being put to the heads of homosexuals and not pulling the trigger. There is a gun, it remains symbolically loaded, but it has been laid down.

For that - a small victory - we have to thank old-fashioned pluralism, not Prof Thio's radical rewriting of it. Some of us - our children, our friends, our siblings - have different sexual orientations, so let's give them space.

For the rest - well, we will have to wait, but hopefully, not for 2,500 years.

janadas@sph.com.sg

Today: Voices: Disgusting, the way MPs are being threatened and humiliated (Oct 26)

Disgusting, the way MPs are being threatened and humiliated

Friday • October 26, 2007

Letter from TAN YAN CHONG

I refer to the article "Gay debate takes ugly turn" (Oct 25) which reported that some parliamentarians and members of the public have received hate mail following the debate on repealing Section 377A of the Penal Code.

The Section 377A debate is a sensitive issue and is by no means an easy topic to discuss.

I applaud the Members of Parliament (MPs) for fulfilling their mandate and speaking out on behalf the public — those for and against the issue. However, it now seems that our parliamentarians have become victims of the debate.

I am disgusted that some members of the public have threatened and humiliated the MPs who have spoken up about the issue, and even gone as far as to question the MPs' sexuality.

I hope that our MPs will not be deterred by this incident and will continue to speak out for ordinary citizens. It is clear from this unfortunate episode that there are no winners or losers, only victims.

ST: Gays born that way? Jury's still out on that one, says MP (Oct 24)

Oct 24, 2007
Gays born that way? Jury's still out on that one, says MP
Mr Lim Biow Chuan one of nine PAP backbenchers to speak on
Section 377A

By Goh Chin Lian

WHILE he is all for respecting homosexuals, MP Lim Biow Chuan
(Marine Parade GRC) does not believe gays are born that way.

Rising to speak immediately after Prime Minister Lee Hsien Loong,
Mr Lim yesterday took a different view from that of the PM, who
said there is a growing body of scientific evidence that sexual
orientation is substantially inborn.

Said Mr Lim: 'With the greatest respect to the prime minister,
I must state that I do not think there is conclusive evidence that
homosexual behaviour is inborn.

'The jury is out on this issue and different scientists would have
different views on the matter.'

PM Lee had joined the debate on a citizens' petition to repeal the
law criminalising sex between men.

Urging the various groups to leave Section 377A alone, PM Lee
said there is space in Singapore for all, including homosexuals, to
live together.

Acknowledging their place in Singapore, Mr Lim said that while
he disagreed with homosexual practice, he was not against gays.

'I have friends who are gay and my approach to them is simply
that I do not agree with your lifestyle, but I would respect you for
who you are.

'If you are a decent chap, an honest and hardworking person,
your sexual orientation or preference does not affect the way I see
you. I would treat you and respect you as another fellow citizen.'

Mr Lim was one of nine PAP backbenchers who devoted at least
part of their speech yesterday on the amendments to the Penal Code,
to the law against sex between men.

MPs who favoured retaining the law such as Mr Lim, Mr Ong Kian
Min (Tampines GRC) and Dr Muhammad Faishal (Marine Parade
GRC), argued that most Singaporeans are not ready to accept
homosexual acts as a way of life.

They also said the petition to repeal the law has prompted
residents in their wards to contact them to express their disapproval
and even outrage with it, as well as unease with how the issue
might evolve.

The Malay community gave similar feedback, said Dr Faishal.

Mr Ong said the bulk of Singaporeans are not prepared to
compromise their family values.

They want to preserve the traditional family unit of a father, a
mother and children, at a time when it is threatened by rising
divorce rates, single-parent households and work pressure.

'By condoning homosexuality, we are effectively initiating a
shift in the definition of the family unit... Singaporeans
are simply not ready to change their family values and endorse
homosexuality as normal,'' he said.

Madam Cynthia Phua (Aljunied GRC) made a similar call to
uphold the traditional family unit and values.

Mr Seah Kian Peng (Marine Parade GRC) disagreed with
Nominated MP Siew Kum Hong, who had presented the petition,
that retaining the law constituted the tyranny of a majority.

'I would be the first to stand up for a gay man's right to be treated
as an equal under the law.

'Yet, I am an MP who believes that as a nation, our families
are not ready to have an open acceptance of the gay lifestyle,
including same-sex marriages and gay adoption of young children.'

This, he said, is 'a matter of principle, not of numbers'.

Gay Singaporeans continue to have their private space here,
noted Dr Faishal. 'I do not think the community's rights are
being put under the microscope.'

Madam Ho Geok Choo (West Coast GRC), noting an undercurrent
of hostility surrounding the discussion, called for cool heads.

She said: 'I appeal to all interest groups and interested individuals
to discuss the issue in a calm and peaceful manner befitting a civil
and civilised society.'

chinlian@sph.com.sg

FESTIVE TIME, FIERCE DEBATE

'In addition to the delicious rendang and ketupat, Section 377A
became a hot topic of discussion during my Hari Raya visits and
gathering.'

DR MUHAMMAD FAISHAL (Marine Parade GRC), on feedback
that he received from the Malay community

MOVED BY STORIES

'I have heard the many stories and quotes that Mr Siew Kum
Hong has related about homosexuals living in Singapore. It is
difficult not to be moved by them.'

MR SEAH KIAN PENG (Marine Parade GRC), on stories that the
Nominated MP had recounted in Parliament on Monday

KEEP VALUES INTACT

'Let the family unit not be compromised.

MR ONG KIAN MIN (Tampines GRC), on how encouraging
homosexuality will undermine the traditional family of a father,
mother and child.

LET'S HAVE SOME CALM

'I understand that there are disturbing undercurrents of
violent hostility surrounding this discussion.'

MADAM HO GEOK CHOO (West Coast GRC), on the need for all
parties to discuss the law on sex between men in a calm and
peaceful manner

ST: Petition to repeal gay sex law sparks heated debate (Oct 23)

Oct 23, 2007 Petition to repeal gay sex law sparks heated debate NMP's stand that Section 377A is discriminatory elicits rebuttals from MPs By Peh Shing Huei PARLIAMENT yesterday felt the intensity of public sentiments over gay sex when it sat to discuss changes to the Penal Code. Senior Minister of State for Law Ho Peng Kee announced wide-ranging amendments, including tougher laws against paedophilia and racial and religious slurs. But the House's attention turned very quickly to Section 377A. This section deems sex between men a crime. The Government has decided to retain it, even as it removes Section 377, the law banning oral and anal sex between men and women. At the start of the sitting, Nominated MP Siew Kum Hong presented a citizens' petition to repeal Section 377A. Said the lawyer in an impassioned speech: 'Why should it be any different when those acts are performed between adult men? What is the differential factor that leads to harm? There is none. There is no harm that would be recognised by the criminal law. But other parliamentarians of all persuasions - from the ruling People's Action Party (PAP) to the opposition Workers' Party (WP) and a fellow NMP - disagreed, with varying degrees of forcefulness. Five PAP backbenchers, four of them lawyers, supported the retention of the law on grounds that society was not ready for a change. Said Ms Indranee Rajah (Tanjong Pagar GRC): 'I can tell you that for every one of those (people who signed the petition), there was someone who e-mailed us as Members of Parliament to say, 'Do not repeal. Keep it. We thank the MPs, we thank the Government for keeping this law'.' Taking up the point on the wishes of the majority, Mr Alvin Yeo (Hong Kah GRC) said that the laws must reflect their position, as he cited a recent survey which showed that seven in 10 Singaporeans frowned on homosexuality. Both he and Ms Rajah also argued that the petition's call for equality had to be put in context. It did not mean that homosexuals would be discriminated against before the law, but just that this particular law was as a result of society's choices. Said Ms Rajah: 'I don't think we want to have a situation where we demonise homosexuals. We certainly do not want to regard them as anything less than Singaporeans. 'But the point is, what does our society want for itself?...Once you have different groups that live in a society, you have to accept that there will be some restrictions on behaviour.' While agreeing that a majority want the law to stay, Mr Hri Kumar (Bishan-Toa Payoh GRC) took issue over the lack of clarity and inconsistency of Section 377A. Even though gay sex was banned, he noted the Government's position that it would not actively enforce the law and that it allowed gays in the civil service. He asked: 'So what is the message we are sending? Are we for or against it?' WP chairman Sylvia Lim said that her party could not reach a consensus after lengthy discussions, and thus opted for the status quo. Amid the nays to the repeal, a visibly distraught NMP Thio Li-Ann got many thumping their seats as she launched a fiery rebuttal of the pro-repeal arguments. Warning the House that the repeal call was the typical first step to other demands such as for same sex marriage, the law professor said that the law should remain as homosexuality is immoral. Making her disdain plain, she described homosexuality as a 'gender identity disorder' and anal sex as akin to 'shoving a straw up your nose to drink'. While Mr Siew argued that the repeal was about 'fairness, justice and non-discrimination', Professor Thio argued that Section 377A did not breach the constitutional guarantee of equality for citizens. 'While all human persons are of equal worth, not all human behaviour is equally worthy... In criminalising acts, we consider the wrongfulness of the act, the harm caused and how it affects the good of society,' she said. The debate continues today. shpeh@sph.com.sg

Pinknews.org.uk: Singapore rejects decriminalisation of gay sex (Oct 23)

23rd October 2007 17:10
PinkNews.co.uk writer

Gay people have a place in Singaporean society but they cannot be part of the "mainstream way of life," a senior government minister told the country's Parliament yesterday.

Ho Peng Kee, a Law and Home Affairs minister, was responding to a motion tabled by MP Siew Kum Hong calling for the repeal of laws that make gay sex a crime.

Last week Mr Siew told The New Paper that the issue was larger than gay rights.

"I truly do believe that Section 377A (gross indecency) is unfair, unjust, and plain wrong," he said.

"It is contrary to principles of equality and non-discrimination, and it seeks to use the criminal law to enforce a specific moral view which is contrary to accepted fundamental precepts of criminal law."

A bill before the Singaporean parliament will legalise oral and anal sex in private between consenting straight adults in the first changes to the penal codes in more than two decades.

The new legislation will also create new offences relating to sex tourism and child prostitution.

However, Mr Ho said yesterday that the ban on "gross indecency" will remain in place and male homosexuals still face up to two years in prison for gay sex.

"Repealing section 377A will be contentious and may send a wrong signal that the government is encouraging and endorsing the homosexual lifestyle as part of our mainstream way of life," he said, according to AFP.

He added that the push for decriminalisation of homosexual acts in the city state of nearly five million people had been contentious and that the majority find them "offensive and distasteful."

Thousands of Singaporeans have signed an online petition calling for the government to decriminalise and local celebrities created a YouTube "propaganda rap" to get voters to get involved to help repeal 377A.

Last week group calling itself "The Majority" set up a website asking the government of Singapore to "do what is right and retain Section 377A for the future of our children and our nation."

The authorities have not brought anyone up on charges of gross indecency for several years and the country has an active gay scene.

During the summer a gay poetry reading during Pride celebrations was banned as was a picnic and fun run from the Singapore Botanic Gardens.

The authorities also banned an exhibition of 80 shots of fully clothed, same-sex couples which they said "promote a homosexual lifestyle."

Singaporean authorities have previously banned gay films and public displays of homosexuality.

In July veteran actor Sir Ian McKellen urged the country's government to ditch the colonial-era laws on gay sex while touring the country with the Royal Shakespeare Company.

In a promotional interview with a local radio station, he said:

"Just treat us with respect like we treat everybody else and the world will be a better place, I think.

"Coming to Singapore where unfortunately you've still got those dreadful laws that we British left behind... it's about time Singapore grew up, I think, and realised that gay people are here to stay."

Speech on the Penal Code (Amendment) Bill - Siew Kum Hong (Oct 22)

Speech on the Penal Code (Amendment) Bill:

22 October 2007

By now, my views on this issue have been widely-reported. In
particular, a New Paper report last week had carried an interview with
extensive quotes from me (it felt really weird buying a newspaper with
my face on the cover -- so much so I gave it to the cashier with the
back cover facing up!).

So I'm not going to write much commentary around this speech, other
than to highlight that apart from Section 377A, I very strongly
disagreed with other parts of the bill. The speech below is based on
the prepared text and has been (mostly) checked against delivery. I
ran out of time, but the part that I skipped basically contained some
of the more offensive quotes from http://www.keep377a.com/, which I
will not post here.

I will (hopefully later this week) write another post to respond to
all the comments posted on this blog, which I have refrained from
replying to earlier.

Oh, and the video of my speech will be available on the CNA website
for a week.

Speech on the Penal Code (Amendment) Bill

1. Mr Speaker Sir, I rise to speak on the Penal Code (Amendment) Bill,
and on the petition I had presented to Parliament earlier. I will
first speak on two aspects of the amendment bill not related to
Section 377A, and then on Section 377A and the petition.

2. The Penal Code is one of the most important statutes that we have,
because the criminal law touches so many people so intimately. This
bill represents the first review of the Penal Code in 22 years. It
seeks to do a lot, and yet it leaves so much undone.

3. The bill introduces some positive changes. For instance, there is a
new offence of sexual grooming. Going by the experience in the UK,
this could well become an important weapon in the arsenal against
sexual predators, especially those on the Internet.

4. Another important change is the criminalization of child sex
tourism, extending to acts performed overseas. Notwithstanding
potential issues of enforcement, this will help greatly in closing the
door on Singaporeans engaging in such despicable practices.

5. But Sir, some aspects of the amendment bill are not so positive. I
will focus on three in my speech.

General increase in maximum imprisonment sentences

6. Firstly, clause 105 of the amendment bill increases the maximum
sentences for a number of offences. I echo Ms Sylvia Lim's comments on
this increase, and would add to them.

7. Sir, depriving a person of his or her liberty is a very serious
matter. We should not be so hasty in increasing the maximum sentences
for so many offences. The general increase in maximum fines is clearly
justifiable, even necessary, given that they were last reviewed in 1952.

8. But while money loses its value due to inflation, there is no
equivalent concept when it comes to imprisonment. The intrinsic value
of a person's liberty does not diminish over time. If anything, with a
higher standard of living and greater economic opportunities today,
the opportunity cost of a day in jail is arguably a lot higher now
than in the past.

9. In addition, an excessive maximum sentence could well be oppressive
towards accused persons in the manner described by Ms Sylvia Lim. This
insidious effect is undesirable, unfair and detrimental to the balance
of the criminal justice system.

10. MHA should therefore provide adequate justification for each
increase in maximum sentence. In its public consultation paper last
year, MHA stated that it has "avoided increasing imprisonment terms
unnecessarily". It should disclose the different factors considered
for each maximum sentence increased, and why it had concluded that the
existing maximum sentence was inadequate. It has not done so.

11. To my mind, it is dangerous to increase the maximum sentences of
so many offences, without proper justification. It seems to pay
insufficient respect to the fundamental importance of a person's
liberty. In the absence of such justifications, I have no choice but
to disagree with this aspect of the amendment bill.

Marital immunity

12. I now turn to the issue of marital rape.

13. The Penal Code has historically provided an absolute defence of
marital immunity. A husband is legally incapable of raping his wife.
In other words, regardless of whether or not she consents to sex,
regardless of whether or not he forces himself upon her, it is simply
impossible in law for a husband to rape his wife.

14. The amendment bill proposes to take a "calibrated approach" in
limiting this defence. Marital immunity will now not apply where
divorce or separation proceedings have been commenced or completed, or
where the wife has applied for or obtained an injunction or protection
order against the husband.

15. MHA's stand is that total abolition of marital immunity would be
"too radical" and would change "the whole complexion of marriage in
our society", citing "a need to strike a balance between the needs of
women who require protection and the general concerns about conjugal
rights and the expression of intimacy in a marriage."

16. Sir, I was flabbergasted when I read that. Perhaps it is because I
am young and unmarried, and hold a romantic view of marriage,
untarnished by its reality. But surely that is the conception that we
should still uphold. The proposed change still sends the message that
in most circumstances, a husband cannot be considered to have raped
his wife even if he knew that she did not consent. Under this change,
the critical issue for rape in a marriage is not consent, but whether
the wife has taken certain legal steps.

17. MHA talks about "conjugal rights", suggesting that a husband has
some sort of right to sex from his wife. This seems to be derived from
the archaic view that a wife, by marrying the husband, has irrevocably
consented to sex with her husband. It is linked to the view that a
wife is some sort of property of the husband.

18. Sir, such a view has no place in a modern society, not even in a
limited form. A man does not have the right to demand sex from his
wife at any time. Sex without consent is rape, whether it takes place
within or outside a marriage.

19. To me, it is simple: no means no, and rape is rape. Rape within a
marriage is the same as rape outside marriage. In a modern society,
marriage is a partnership of equals. We are a modern society. So why
are we still retaining this defence, even in a limited form? I cannot
fathom that.

20. MHA also cites "the expression of intimacy in a marriage". Sir, if
sex without consent is seen as being a permissible expression of
intimacy in a marriage, then I fear for marriages and married people
in Singapore. What sort of conception of marriage do we have, if the
law recognizes sex without consent as being legitimate? That cannot be
right.

21. I can do no better than to quote the response of the Association
of Wwomen for Action and Research to last year's public consultation
paper:

"Rape is not sex, it is violence. No wife who has been raped
considers the act to be merely sex. It is a form of violence, aimed at
violating the victim in one of the most humiliating manners. … To
equate sex with rape is to equate a caress with a beating.

[…]

Throughout the eighties and beyond, girls were continually warned
in schools to be alert for sexual predators, and given the message
that rape was the worst possible violation against a woman. It is
truly ironic that these same girls, now adult women, are told that
they have to subject themselves to this most humiliating of assaults
by none other than their husbands."

22. The amendment bill effectively penalizes the most vulnerable of
wives: those who have no choice but to continue in a marriage, for
whatever reason. It says that if a woman has the wherewithal to leave,
then we will protect her from rape, but not if she is completely
dependent on her husband. That again cannot be right.

23. For all of these reasons, I disagree with the proposed change to
Section 375 of the Penal Code. Instead, I urge the Government to
repeal marital immunity in its entirety. That is what a modern society
needs, that is what fairness requires, and that is what justice demands.

Petition presented on 22 October 2007

24. Sir, I now turn to the petition I presented to this House earlier,
which argues that Section 377A would be unconstitutional upon the
repeal of Section 377. For ease of convenience, I will refer to
Section 377A as "377A", and Section 377 as "377".

25. The amendment bill amends 377 to legalise private, consensual anal
and oral sex between heterosexual adults. But 377A, which criminalizes
the same acts between men, is retained. This discriminates against
homosexual and bisexual men. The amendment of 377 without also
repealing 377A is therefore unconstitutional under Article 12(1) of
the Constitution, which provides that "All persons are equal before
the law and entitled to the equal protection of the law." That is
because it does not satisfy the legal requirements for derogating from
Article 12(1).

26. A valid derogation from Article 12(1) must satisfy the "rational
nexus" test, that is, it must be rationally connected to a legitimate
purpose of the statute in question. So we must first consider the
purposes of the Penal Code.

27. The preambles of both the Penal Code and the amendment bill are
silent on this. So let's turn to what MHA has said. Its public
consultation paper on the draft amendment bill dated 8 November 2006
stated that the review is intended to make the Penal Code "more
effective in maintaining a safe and secure society in today's
context". So, according to the Government, the objective of the Penal
Code is to maintain a safe and secure society.

28. But 377A criminalizes consensual sexual acts between men, even if
it takes place in the privacy of their own homes. How does the private
sexual conduct of consenting adults make Singapore unsafe or less secure?

29. Furthermore, criminal lawyers generally accept that the criminal
law should be concerned with two elements, and two elements only: harm
and culpability, of which only harm is relevant here.

30. Professor Michael Hor teaches criminal law at the NUS Law Faculty.
In a recent article, he explained that criminal activity must entail
harm to others that is recognizable and tangible. In other words, if
an act does not harm others, then it should not be a crime. This is
taught to first-year law students in their first few weeks, and indeed
I recall being taught this over ten years ago.

31. Professor Hor went on, and I quote:

"The government has been strangely silent about the harm that 377A
is intended to prevent. Indeed consistent statements over a number of
years from the highest officials of the land lead any reasonable
observer to think that the government no longer believes, if indeed it
did before, that the sort of activity contemplated by 377A is harmful
at all. If corroboration were required, it lies in the repeated
assurances of the government that 377A will not be enforced –
apparently because there is no harm to be prevented, no offender to be
rehabilitated, no potential offender to be deterred, and no victim to
be satisfied.

One might, of course, disagree with the government's position on
the harmfulness of 377A activity, but once that position is taken, how
can it be right for 377A activity to remain a crime?"

32. The Law Society, in its submission to MHA on the draft amendment
bill, similarly noted:

"… the criminal law's proper function is to protect others from
harm by punishing harmful conduct. Private consensual homosexual
conduct between adults does not cause harm recognizable by the
criminal law. Thus, regardless of one's personal view of the morality
or otherwise of such conduct, it should not be made a criminal offence."

33. Private, consensual sexual acts between adult males does not
impact on the safety and security of society. Furthermore, it is
accepted that the criminal law addresses activities that harm others,
but the Government seems to accept that 377A does not cause harm. So
how can 377A possibly be linked to a legitimate purpose of the Penal
Code? The answer is that it does not, and it cannot.

34. And the Government has effectively admitted this. It does not seek
to justify the retention of 377A on grounds of societal safety and
security, or of harm to others from the conduct contemplated by 377A.
Instead, its 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
Singaporeans. 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.

35. Clearly then, 377A has no rational connection with any legitimate
aim of the Penal Code. Its retention, which leads to different
treatments of men engaging in oral and anal sex, and of heterosexual
adults doing the same, without any legally acceptable justification,
must therefore be unconstitutional.

36. I would even argue that there can be no legitimate aim of the
Penal Code with which 377A can be rationally connected, so as to
justify its retention. The amendment of 377 permits heterosexual
adults to engage in private, consensual oral and anal sex. By
definition then, we are saying that there is no harm arising from such
private and consensual acts between heterosexual adults.

37. Why should it be any different when those acts are performed
between adult men? What is the differentiating factor that leads to
harm? There is none. There is no harm that would be recognised by the
criminal law.

38. It is not harm that results from such acts being performed between
adult men, but the moral disgust that the majority says it feels. But
there is a very good reason why the criminal law should not reflect
public morality. And that is because doing so can lead to the
discriminatory oppression of minorities.

39. In times past and in other countries, public morality and disgust
have been used to justify slavery; discrimination against racial and
religious minorities; and discrimination against women, including not
permitting them to work or to vote. All of these are now universally
recognised as being wrong and immoral. Let us not perpetuate or repeat
the mistakes of others in the past.

40. Sir, the "sign-posting" argument is fundamentally flawed. It is
couched in the language of "the majority". But let us not forget
another phrase involving the majority: the tyranny of the majority.
That is precisely why the constitutional guarantees of equality and
equal protection are entrenched as a fundamental liberty in Article 12(1).

41. Even if we accept the "sign-posting" argument, the amendment bill
seems to reflect public morality in a selective and discriminatory
manner. It is surely undisputed that society views extra-marital sex
as immoral. And surely, most Singaporeans disapprove of prostitution,
and all types of discrimination, such as age, racial and gender
discrimination. But we have not criminalized any of these.

42. Indeed, the amendment bill even repeals Section 498, which makes
it an offence for a man to entice, take away or detain a married woman
with the intent of having "illicit intercourse" with her. The reason
given is that it is an archaic offence which is no longer relevant in
today's context.

43. But public morality in today's society remains firmly opposed to
extra-marital sex. So why do we selectively reflect public morality
with respect to private, consensual acts between adult men, but not
public morality on adultery? Why are we not "sign-posting" society's
disapproval of adultery by retaining Section 498, without pro-actively
enforcing it?

44. The Senior Minister of State has argued that repealing Section 498
is not an endorsement of adultery or extra-marital sex. In the same
way, repealing 377A is also not an endorsement of homosexuality. Such
inconsistency is discriminatory.

45. And taking the "sign-posting" argument to its logical conclusion,
if we repeal Section 498, are we then telling the world that seducing
a married woman, hence leading to adultery, is acceptable? By lifting
the marital rape defence in limited circumstances, are we endorsing
marital rape in the other circumstances?

46. "Sign-posting" is all or nothing. We cannot "sign-post"
selectively, with some provisions reflecting public morality and
others not; it does not work that way. It is a fundamentally flawed
argument that does not stand up to logic or reason or the principles
of a democratic society, and so we should shy away from it.

47. Sir, Mr Cheng, a Singapore graduate student in the US, e-mailed
this to me:

"Retaining 377A on the basis that the 'conservative' majority is
uncomfortable with homosexuality sets a dangerous precedence [sic] for
our society.

It suggests that any majority group can now regulate the private
activities of a minority group because it is uncomfortable with it or
feels threatened by it.

Imagine what this means for the many majority-vs-minority
fault-lines within the Singapore society - Chinese vs others, citizens
vs non-citizens, heartlanders vs cosmopolitans, a majority religious
group vs a minority one.

Breeding the majority group's self-righteousness to demand
deference from the minorities will weaken the social cohesion of our
society based on mutual respect and tolerance.

The repeal of 377A will make a clear statement on how, in
Singapore, we will always have to find ways to live harmoniously with
people who are not like us."

48. Many people have described the repeal of 377A as a "slippery
slope". I think Mr Cheng has identified the true slippery slope that
we face today.

49. For all of these reasons, I believe the continued retention of
377A to be unconstitutional. I think the arguments in the petition are
valid and correct in law, and so I presented it to Parliament. I
humbly ask this House to consider these arguments, and acknowledge
their cogency in this debate.

Universality of non-discrimination argument

50. Sir, that was the petition. I will now speak on why I support the
repeal of 377A, quite apart from its unconstitutionality.

51. Contrary to how many have sought to frame the issue, the repeal of
377A is not a gay issue. It is not about gay rights. It is not just
for gays, or friends or relatives of gays.

52. No. It is about fairness, justice and non-discrimination. It is
about tolerance, understanding and inclusiveness. It is about
upholding the fundamental protections afforded by the Constitution,
the basic pillars underpinning our country. These are issues for all
Singaporeans.

53. The response to the petition bore this out. The signatories were a
broad and diverse group, showing that the issues cut across all lines
and resonate universally with people. Straight and gay, male and
female, young, middle-aged and old, civil servants, professionals and
students, religious and non-religious – they all signed the petition.
They all understood the guiding light of treating others as you want
them to treat you. They were united by the common belief that 377A is
unfair, unjust and wrong, and hence should be repealed.

54. And such lengths they went to, to convey the strength of their
belief. So many, including straight men, went out to collect
signatures on their own accord. They did this voluntarily, without
being asked. An 18-year-old student collected 70 signatures. Two
others collected 150 each.

55. Madam Tan, a 63-year-old mother of two heterosexual sons,
collected signatures from her peers. She took it upon herself to do
this. She believed that she needed to do it, "for a healthy attitude
towards life". She collected five signatures.

56. Apart from the petition, there was also an online open letter to
the Prime Minister calling for a repeal of 377A. This open letter,
which collected 8120 signatures, was handed to the Prime Minister's
Office earlier today. A Mr Goh signed it, and he articulated the
universality of the issue:

"I must admit that I am somewhat "homophopic", [sic] but I believe
that nobody should be discriminated against [for] his belief, or in
this case sexual inclination. If they make me uncomfortable, I just
don't mix in their social circle."

57. I do not know anything about Mr Goh, but I am humbled by his
principled stand against discrimination. It is the right and noble
path, standing fast to our principles even in the face of personal
dislikes. Surely we can all learn from him?

No pro-active enforcement of 377A

58. Sir, the Government has stated that it will not pro-actively
enforce 377A. This may be meant as a compromise, but it is
unsatisfactory and problematic. The Law Society pointed out that this
position was an admission that 377A is "out-of-step with the modern
world", adding that it risked "bringing the law into disrepute".

59. I also quote Professor Michael Hor:

"The moral force of the criminal law is blunted if there are
crimes which are, the government assures the public, never to be
enforced, and its "perpetrators" never brought to court and punished.

The criminal laws are the ground rules of our society and if it is
to be accorded the respect it deserves, it must be reserved for
conduct which the government considers to be clearly harmful to society."

60. The Senior Minister of State has noted that there have been
convictions under 377A, for cases involving abuse of young persons and
acts performed in public. And I absolutely agree that such instances
should remain cirminalised. But 377A as it is currently worded is not
limited to those situations, and covers private, consensual acts
between adults as well. If the Government intends to criminalise only
the abuse of young persons and public acts, then 377A should be
amended to do this. But it has not been amended.

61. Furthermore, not pro-actively enforcing 377A does not mean that
its retention is without cost. The Government says that it seeks to
reflect the moral values of the majority, but what about the human
cost to gay persons and their families? What about the cost to
Singapore from those who leave Singapore because of this law? What
price, this reflection and endorsement of public morality?

62. The majority of Singaporeans seems to speak as if the
non-enforcement of 377A means that everything is fine – but the
majority would say that. Because they are not the subjects of
discrimination, because they are not the minority who has to live
under the threat of 377A, a Sword of Damocles that could fall with a
change of policy by the government of the day.

63. Sir, let me share with this House, the pain voiced by some
signatories of the online open letter.

64. Madam Mak is a 69-year-old mother of a gay 40-something son. He
and his partner have lived with her for over 13 years. She called them
"the best things" that had happened to her, in her 69 years in
Singapore. She wrote:

"Please tell me, Mr. PM, why are you teaching me to be ashamed of
them? If this country doesn't want them, where can they go? Please
tell me."

65. Madam K, a civil servant, wrote:

"my son is gay. He came out to me when he was 22. And I was upset
and i blamed myself why is my son gay… i blamed myself all the time.
But he is my son. He has not changed since the first day i gave birth
to him or the person he is today. I love him for who he is, for what
he is. It sickens me that people think suggests that just because he
is gay, our family isnt what it is. We are a family. what people do in
their private lives shouldnt be an issue to anyone as long as it
doesnt harm anyone else. He doesnt know i am doing this but I support
this repeal. he is my son and he is not a criminal. if i can accept
him, his mother who gave birth to him, who these people who so quickly
judge him and condemn him?"

66. A doctor, who signed off only as "criminal doctor", wrote:

"I'm a doctor. People tell me that's a noble profession. My
parents are proud of me. My teachers are proud of me. … But I'm
ashamed of myself. Why so? Because I'm gay. … It doesn't matter how
many lives I save, it doesn't matter how much suffering I relieve, it
doesn't matter how much good I do, it doesn't change one shameful
fact. I'm a criminal doctor."

67. Sir, please bear with me as I quote one last person. Mr Choo
questioned the consequences of repealing 377A. He questioned whether,
if 377A was abolished, those who supported its retention would suffer.
He asked if they would be, and I quote:

"… "living in constant hardship, hysteria, agony and pain,
distress and shame, fear of marriage breakdown, upset with public
safety and order", simply due to the knowledge that someone else is
legally behaving in what they regard as "gross indecency" in some
other bedroom?"

68. Mr Choo went on:

"Let us be honest and look where the tears and the wounds really are.

Talk is cheap, anger is free, but pain is costly. And often such
truly divisive laws as s377A cost lives."

69. And then there are those who leave. If we truly believe that every
Singaporean counts, and surely we must when people are our only
natural resource, then have we counted the cost of all those who have
lost? I will cite only one example, to show how heavy the cost to
Singapore can be.

70. Mr Alex Liang e-mailed me a few months back. He is a former
Singaporean who renounced his citizenship and is now a UK citizen. By
all objective measures, Mr Liang is someone who would have served the
country very well.

71. We had invested heavily in him. He received a sports award for 3
years running, and was also a humanities scholar. He represented the
nation in gymnastics, receiving generous training allowances. He
speaks 8 languages, and had excellent academic results.

72. But the moment he completed National Service, he left for Europe
and he stayed there. He had long decided to leave Singapore, as he did
not see a viable future for himself in Singapore as a gay man.

73. Sir, I ask again: what price, this effort to "sign-post" the views
of the majority?

The majority view

74. Even if we want to signal the majority's disapproval of
homosexuality, we do not need to retain 377A. It can be done through
other means. Repealing 377A does not mean that society endorses or
approves of homosexuality.

75. Let us learn from the example of the Censorship Review Committee.
Its 2003 report noted the distinction between "allowing" and
"endorsing", stating that allowing certain content is quite different
from, and should not be misinterpreted as, an endorsement. The same
reasoning applies here.

76. In any event, this House should be leading and not following. We
should lead by example. We should be doing what is right, fair and
just, what is constitutional and keeping in spirit with Singapore's
cherished principles of equality and non-discrimination. We pride
ourselves on doing the unpopular but right thing, so why are we
abdicating our responsibilities now?

77. Sir, I get a little emotional when I hear the "sign-posting"
argument. That is because it claims to sign-post values held by this
House and by Singaporeans. It purports to proclaim the values that I,
as a Member of this House and as a Singaporean, believe in and want to
proclaim.

78. But what are these values? What is this majority view, what does
the majority whose values we want to "sign-post" think and say?

79. For that, I turned to the keep377a.com website. It was set up to
solicit signatures for an online open letter in support of 377A. Let
me just read some of the messages that have been posted on this website...

[Deputy Speaker interrupted to inform me that I had 3 minutes left]

Do the right thing

80. Yes, Sir. Instead of reading the comments, I will just talk about
what I feel this House should do.

81. I ask this House to "sign-post" the values of fairness, justice,
non-discrimination, openness and inclusiveness, which are values
fundamental to a secular democracy. I ask this House to endorse the
view that our people should feel free to express diverse views, pursue
unconventional ideas, or simply be different, that ours must be an
open and inclusive Singapore, and that we should build a nation where
every citizen has a place, where all can live in dignity and harmony.
And if those words sound familiar, that is because those were the very
words of the Prime Minister in his swearing-in speech in August 2004.

82. These are the right things to do. Some have said that Singapore is
not ready, that this is not the right time to repeal 377A.

83. I disagree. I say that there is no wrong time to do the right
thing. Now is the time, not to do the pragmatic or practical thing,
but to do the right thing.

84. Now is the time, to turn our backs on prejudice, discrimination,
intolerance and hatred.

85. Now is the time, for this House, which represents all
Singaporeans, to lead by example.

86. Now is the time, to uphold the noble ideals of our founding
fathers, ideals upon which our country was founded and which hold our
society together. The ideals of a democratic society, based on justice
and equality. The ideal of all persons being equal before the law, and
all persons having the equal protection of the law.

87. Now is the time, to do the right thing and repeal 377A.

88. Sir, with that, and for all the reasons I have stated in my
speech, namely the increase of so many maximum sentences without
justification, the retention of the marital rape defence albeit in a
limited form, and the failure to repeal 377A, I oppose the Penal Code
(Amendment) Bill.

Penal Code (Amendment) Bill to be read on Monday 17 Sept 07

Penal Code (Amendment) Bill will be read for the first time on Monday 17 September 2007.

Go to http://www.parliament.gov.sg/Publications/orderpaper.htm to read the bill.