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Section 377A: Repeal this piece of decoration

Move aside HDB. Let’s talk about LGBT?

We seem to be buffeted by so many divisive issues these days. This time, you can blame Professor Tommy Koh for suggesting that the LGBT community take up a class action suit to strike down Section 377A which criminalises homosexual sex. If he was merely a blogger, his comments would be ignored. But this is one very respected Singaporean who’s probably eaten more salt than the whole 4G leadership has eaten rice.

He didn’t explain why he thought 377A should be struck down, except to refer to what the Indian courts did. On Thursday, its Supreme Court ruled that its own section 377 is discrimination on the basis of sexual orientation, which is a fundamental violation of rights. When someone noted that our own courts had thrown out similar constitutional challenges here, Prof Koh suggested “try again’’.

Perhaps, people might not have noticed that the Indian courts had a 2013 judgement which upheld the criminalization of homosexual sex as an “unnatural offence’’. Now, five years later, it has decided otherwise.

Do your sums. The two constitutional challenges in Singapore was in 2014. Is the time ripe?

The Indian passage was a long, tortous one, starting in 2001. BBC reported that a bid to repeal section 377 was initiated in 2001 and was batted between court and government until 2009, when the Delhi High Court ruled in favour of decriminalisation.

Several political, social and religious groups then mobilised to restore the law and in 2013 the Supreme Court struck down the High Court ruling.

Anti-section 377 activists then submitted a “curative petition” – a formal request to review an earlier court order perceived as a “miscarriage of justice” – and in 2016 the Supreme Court decided to revisit its ruling. Then came its judgment on Thursday.

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Should LGBT activists do the same?

In 2014, the courts here ruled that the guarantee of equal protection under the law as enshrined in Article 12 of the Singapore Constitution touched only on issues relating to religion, race, place of birth and descent, not gender, sex and sexual orientation.

Neither does the statute violate the right to life and liberty — as stipulated in Article 9 — as this referred only to the personal liberty of a person from unlawful incarceration and not the right of privacy and personal autonomy, said the court.

Already, pro- and anti- groups are gearing up to set out their own viewpoints. The main fight is about values, which is something that is difficult to change because they also stem from religious beliefs. Expect the fights veer into science and genetics. Then there is the slippery slope argument about gay marriages, adoption and opening the door to allowing pedophilia and beastiality!

Some would view it such arguments as part of the normal course of a maturing society but there’s also the fear that the discussions would lead to too much dissent and divisiveness that a small, multi-religious nation cannot afford.

The wonder, however, is that other notable voices have been added to Prof Koh.  The G’s chief information officer Janadas Devan, writing in his personal capacity, described 377A as a “bad law’’.

Mr Ho Kwon Ping, who launched book on his thoughts yesterday, told a forum that he backed Prof Koh.

“Either you have 377A and you justify to people, which (will cause) a furore, or you repeal. You cannot have your cake and eat it too, and say you want to please everybody, it’s on the statutes, it is illegal in Singapore, but you are not prosecuting,” he said.

In a 2014 forum, National University of Singapore law don Walter Woon, a former Attorney-General, said he was in favour of repealing the law because of what he sees as a “constitutional problem”.

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He noted that Section 35(8) of the Constitution makes the point that the powers to prosecute lie with the Attorney-General. “So we have a very dangerous precedent here where the political authorities are saying to the Public Prosecutor – who is supposed to be independent – there are some laws that you don’t enforce.

“”I find that very uncomfortable.’’

Prof Koh, who was at the same forum, said he agreed that the in-principle, the law should be done away wither  but seemed to back the official position that this was hard to do given the “potential political pushback’’.

“The compromise is a law in the book, but Singapore will not enforce that law,” he said, adding that the Government’s difficulty in balancing opposing opinions “should not be underestimated”.

Personally, I have always subscribed to the view held by Mr Ho. It’s either you enforce the law or you repeal it. I have always been uncomfortable with “compromises’’ because it leaves everyone in nowhere land. What is to prevent another government or Parliament to call for the law’s enforcement? After all, it is in the books.

I think we should look at Section 377A as an issue about the rule of law. Citizens, whether homosexual or otherwise, must be able to live their lives with clear rules and boundaries – and not have look over their shoulders because of the fear of “political pushback’’.

Already, the G has plenty of discretion to prosecute in so many areas. Do we need to extend this discretion to promises NOT to prosecute?

Frankly, I wonder why pro-Section 337A groups are upset at the prospect of a repeal. They do realize that for the moment (and maybe forever) it is NOT being enforced, correct? It seems that, ahem, they should be calling for enforcement of the law rather than having it decorate the Penal Code. Who are we trying to deceive? Ourselves?

Law and Home Affairs Minister K Shanmugam said that the fate of Section 377A is for  society to decide. How do we come to this decision then? The G to hold a referendum? The activists going to the courts again? Letting Parliament lead the way with an amendment?

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Of course, it will be divisive – and we must be an extremely fragile nation if we can’t even withstand a discourse on the issue. ( I guess people will ask if we even want to test this…)

I, for one, would like to live in a land with clear rules.


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An ex-journalist who can't get enough of the news after being in the business for 26 years

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