Don’t hold a sword over our heads

Today takes the prize today. For its comprehensive reporting of a written judgement that touches on that controversial s377A. It provided an extract of the judgment by the three-judge Court of Appeal which throws light on an issue that’s being plaguing the homosexual community – and beyond – for some time. It has to do with criminalising homosexual acts between men.

Those with long enough memories will remember the debate in Parliament on the retention of this clause in the Penal Code and how it was argued as a way to satisfy the views of the conservative majority . To satisfy the homosexual community, the assurance was that it would not be actively enforced.

I’ve always thought this made a monkey out of the law. So the clause is just there for “display” purposes. And everyone is supposed to believe that it would not be “actively enforced”. What about passively enforced, or enforced as a result of a complaint? And why should anyone depend on the executive to decide when he should or should not enforce the law?

So I am glad the courts have entered the picture, although a bit sideways. About a man who was charged originally under s377a and then got the charge substituted to one which would fit the “crime” so to speak, since the first was not supposed to be “actively enforced”. This, btw, is my layman’s intepretation.

 Here’s what the court said about “no proactive enforcement” which was what was promised in Parliament.

 This, they said. is of “totally different complexion from ―no enforcement”. No Minister has gone so far as to state that there will be no enforcement of s 377A. The phrases ―active‖/―proactive‖/―vigorous‖ enforcement are broad phrases which can comfortably bear a spectrum of meaning. At one end of the spectrum, the lack of active enforcement may suggest that the police will not charge consenting adult males who engage in homosexual activities in private, whatever the circumstances. At the other end, it may simply mean that the police will not purposely seek out adult males who carry out such activities with a view to charging them, but if they happen to come across such activities being committed or if they receive complaints of such activities, they will then arrest and charge the relevant persons under s 377A. One can conceive of a situation where a neighbour of a homosexual couple calls the police to lodge a complaint that offences under s 377A are being committed in the privacy of that couple‘s home. In such a situation, if the police respond to the call and proceed to arrest and charge the couple under s 377A, would this be ―active‖ enforcement, or ―reactive‖ enforcement? If it is the latter, it will not be covered by the statements in Parliament.

I really don’t care about the issue of homosexual sex at all. I am more perturbed that there are laws which the executive can pick and choose to chase after someone. Sure there is prosecutorial discretion – but I never heard anyone say, Don’t worry, go do your own thing. We’ll turn a blind eye, we assure you. It was in my view, the oddest parliamentary debate I have ever heard.

Here’s what the judgement said…

…there is nothing to suggest that the policy of the Government on s 377A will not be subject to change. Just as the AG cannot fetter his discretion on policy matters, the Executive cannot fetter its discretion on the same. Ministerial statements in Parliament on policy matters do not invariably bind a future or even the same government. The Executive‘s discretion to determine policy remains unfettered and it has the right to change its policy with regard to the enforcement of s 377A. Therefore, as long as s 377A remains in the statute books, the threat of prosecution under this section persists, as the facts of this case amply illustrate.”

Nor was this something “fanciful” as the police had issued “stern warnings” in the past on the matter to individuals, the court noted. Unless those stern warnings are masak masak, (me talking this) why issue at all if no threat of prosecution if further “violations” occur?

No point reading ST on this. It’s buried in the Home pages. And is merely a backgrounder. Go read Today. It’s on Page 1 and has a good extract as well.