Parliamentary debate on Section 377A, part 5: Siew Kum Hong

Editor’s note: Only the parts of the speech touching on Sections 377A are archived here.

Source: Parliamentary Reports

22 October 2007, 6:04 pm, in Parliament

Mr Siew Kum Hong: Mr Deputy 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.

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.

[snip]

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 would refer to section 377A as 377A and section 377 as 377.

The Amendment Bill amends 377 to legalise private, consensual anal and oral sex between heterosexual adults. But 377A which criminalises 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). A valid derogation from Article 12(1) must satisfy the rational nexus test, ie, 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.

The preambles of both the Penal Code and the Amendment Bill are silent on this. So let us turn to what MHA has said. Its public consultation paper on the draft Amendment Bill dated 8th 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. But 377A criminalises 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? 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.

Professor Michael Hor teaches criminal law at the NUS’ Faculty of Law. In a recent article, he explained that criminal activity must entail harm to others that is recognisable 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 10 years ago. Professor Hor went on:

“The Government has been strangely silent about the harm that section 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 section 377A is harmful at all. If corroboration were required, it lies in the repeated assurances of the Government that section 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 section 377A activity, but once that position is taken, how can it be right for section 377A activity to remain a crime?”

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 recognisable 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.”

Private consensual sexual acts between adult males do 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 think that the activities governed by 377A do 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. 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 “signpost” 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.

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

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. 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.

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.

Sir, the “signposting” 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).

Even if we accept the “signposting” argument, the Amendment Bill seems to reflect public morality in a selective and discriminatory manner. It is surely undisputed that society views extramarital 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 criminalised any of these.

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.

But public morality in today’s society remains firmly opposed to extramarital 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 “singposting” society’s disapproval of adultery by retaining section 498, without proactively enforcing it? The Senior Minister of State has argued that repealing section 498 is not an endorsement of adultery or pre-marital sex. In the same way, repealing 377A is also not an endorsement of homosexuality. The inconsistency is discriminatory. And taking the signposting 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 marital immunity in limited circumstances, are we endorsing marital rape in the other circumstances?

Signposting is all or nothing. We cannot signpost 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.

Sir, Mr Cheng, a Singapore graduate student in the US, emailed this to me:

“Retaining section 377A on the basis that the ‘conservative’ majority is uncomfortable with homosexuality sets a dangerous precedence 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 faultlines 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 section 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.”

Sir, 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.

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 my fellow Members to consider these arguments and to acknowledge their cogency in this debate.

Sir, that was the Petition. I will now speak on why I support the repeal of 377A, quite apart from its unconstitutionality. 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, friends or relatives of gays. 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.

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 resonated 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. 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, without being asked, completely voluntarily. An 18-year-old student collected 70 signatures. Two others collected 150 signatures each. Madam Tan, a 63-year-old mother of two heterosexual sons, collected signatures from her peers. She took it upon herself to do so. She believed that she needed to do it, “for a healthy attitude towards life”. She collected five signatures.

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 8,120 signatures, was handed to the Prime Minister’s Office earlier today. A Mr Goh signed it, and he articulated the universality of the issue when he wrote:

“I must admit that I am somewhat ‘homophobic’, 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.”

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 dislike. Surely, we can all learn from him.

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

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.”

Sir, 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 completely agree that such instances and such acts should remain criminalised. But 377A, as it now stands, is not limited to those situations and it 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 is not being amended.

Furthermore, not proactively 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?

The majority of Singaporeans seem 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 have to live under the threat of 377A, which is a sword of Damocles that could fall with a change of policy by the Government of the day.

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

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 for why my son is 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 is not what it is. We are a family. What people do in their private lives should not be an issue to anyone as long as it does not harm anyone else. He does not 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 are these people who so quickly judge him and condemn him?”

A doctor, who signed off only as “criminal doctor”, wrote:

“I am a doctor. People tell me that is a noble profession. My parents are proud of me. My teachers are proud of me. But I am ashamed of myself. Why so? Because I am gay. It does not matter how many lives I save, it does not matter how much suffering I relieve, it does not matter how much good I do, it does not change one shameful fact. I am a criminal doctor.”

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?”

Mr Choo went on:

“Let us be honest and look where the tears and wounds really are. Talk is cheap, anger is free, but pain is costly. And often, such truly divisive loss as section 377A cost lives.”

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

Mr Alex Liang emailed me a few months back. He is a former Singaporean who has 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. We had invested heavily in him. He received a sports award for three years running, and was also a humanities scholar. He represented the country in gymnastics, receiving generous training allowances. He speaks eight languages and had excellent academic results. 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.

Sir, I ask again, “What price, this effort to “signpost” the views of the majority?

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.

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 misinterpreted as, an endorsement. The same reasoning applies here.

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 principle of equality and non-discrimination. We pride ourselves on doing the unpopular but right thing, so why are we abdicating our responsibilities now?

Sir, I get a little emotional when I hear the “signposting” argument. That is because it claims to signpost 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.

But what are these values? What is this majority view, what does the majority whose values we want to “signpost” think and say?

For that, I turn 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.

Mr Deputy Speaker: Order. Mr Siew, you have three minutes more. Please wind up.

Mr Siew Kum Hong: Yes, Sir. Instead of reading their comments, I will just talk about what I feel that this House should do. I ask this House to “signpost” 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.

These are the right things to do. Some have said that Singapore is not ready, that this is not the right time. 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 easy thing, but to do the right thing. Now is the time, to turn our backs on prejudice, discrimination, intolerance and hatred. Now is the time, for this House, which represents all Singaporeans, to lead by example. 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. Now is the time, to do the right thing and repeal 377A.

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

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