Parliamentary debate on Section 377A, Part 9: Hri Kumar

Editor’s note: He devoted his entire parliamentary time/speech to 377A.

Source: Parliamentary Reports

22 October 2007, 7:29 pm, in Parliament

Mr Hri Kumar Nair (Bishan-Toa Payoh): Mr Deputy Speaker, Sir, thank you for allowing me to join in this debate at this very late hour. I promise to be very brief.

Irise to support the Bill. A major overhaul of the Penal Code was timely, and the Ministry of Home Affairs has obviously put in much effort and thought to the amendments. I particularly commend the new laws to protect minors from sexual predators, whether here or abroad, and I support the amendments fully.

Let me touch briefly on the issue of section 377A. As Professor Ho pointed out, this is one debate which will not see people switching sides easily. Both proponents and opponents of the law have deeply entrenched views on the subject, and that is unlikely to change for some time. I have personally asked many people, both young and old, what they think of this issue, and the almost common consensus is that they do not want this law to be repealed and that is consistent with the feedback the Government has received.

So I do not wish to engage in a moral debate, and certainly not a long one, and I have no rousing speech to deliver. What I wish to do is to approach it from a lawyer’s point of view and how I see Parliament and Parliament’s role in making laws.

Sir, as a lawyer, the power of Parliament to make law is of particular interest to me. When judges and lawyers interpret laws, they are, in certain instances, permitted to refer to Hansard to determine the intention behind any word, phrase or provision in a piece of legislation. Parliamentary debates, therefore, play an important role not just in the passing of laws but how they will be understood by those who later apply them. What we say here or do must be consistent with the law we promulgate and also make sense to those who will scrutinise our words perhaps years from now. In my submission, laws must meet the three Cs, ie, be clear, consistent and concrete, meaning that they must be substantive, effective and make sense. What I find difficult about this issue before us is that while the majority do not wish a repeal for good reason, intellectually, section 377A does, in some respects, fall short of what a good law is or should be.

Sir, first, it is unclear what the current legal position is. In a statement on 7th of November 2006, the Ministry of Home Affairs said that, with respect to section 377A, it will not be proactive in enforcing the section against adult males engaging in consensual sex with each other in private. But what does that mean? Does it mean that the Police will not act on complaints or that suspects may be investigated but ultimately not arrested or prosecuted? Or is it the case that the Attorney-General, who has prosecutorial discretion, may prosecute some but not all offenders? That puts the Attorney-General in a difficult position because selective prosecution will give rise to more issues. But 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? The Penal Code is an important piece of legislation and, in the long run, making some conduct criminal under our Penal Code whilst stating that the law will not be enforced, simply invites attacks on the integrity of the Code.

Second, we are not being consistent. The retention of section 377A is often justified as being consistent with the importance society places on family values. But society has done away with criminalising a whole host of other conduct, which is far more damaging to family values, such as adultery, which carries a more direct threat to the integrity of the family. And adultery was one of the original Ten Commandments. Further, it is not always true that laws always reflect society’s or the moral position. Marital rape is a good example. I cannot imagine any Member of the House believing that it is acceptable for a man to force himself on a woman under any circumstances, regardless of whether they are married. But we do not completely outlaw marital rape. The Bill here certainly protects a woman more by prescribing circumstances under which her husband can be charged with rape, but the protection is not absolute for wives. Why? Over and above the reasons that have been given – and in this respect I share NMP Ms Eunice Olsen’s criticisms of those reasons – more importantly, the law knows its own limits and it is practically impossible to properly enforce a law by giving a wife absolute protection. So, likewise, we also accept that the Penal Code is not the appropriate tool to legislate or regulate the private heterosexual behaviour of consenting adults. Indeed, it is almost impossible to effectively do so. In addition, the question arises also why section 377A does not deal with lesbianism. Over and above the legal basis for discriminating between men and women, where is the consistency?

Thirdly, Sir, the law has no real substance. Through a 15-year period, ie, 1988 to 2003, there were only eight convictions under section 377A involving seven incidents. Two convictions were for the same incident. Moreover, 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 acts in public. Does that mean that private consensual homosexual acts do not happen in Singapore? To believe that would be naive. The truth is that it is virtually impossible to enforce this law. Now that the MHA has said that it will not actively pursue offenders, we are not likely to see any prosecutions in the future, certainly not many.

Sir, I accept that even if a law is difficult to enforce, it can still serve a legitimate purpose in its underlying message, and section 377A sends the message that those who engage in homosexual activities are criminals. But at the same time, we have been saying that our society will not reject those with alternative lifestyles. We have even said that such individuals have a place in our civil service.

It has also recently been said that homosexuality may be genetic, and the debate on this issue is still raging on. Now, the MHA says that it will not prosecute offenders. So what is the message we are sending? Are we for or against it? What do we stand for? While this may be an uncomfortable issue, we should at least make our position clear. Just to cite an example by Mr Christopher De Souza, he says, messaging is important, and he cites the example of suicides, that if we do not make it an offence to commit suicide, we are sending the message that suicide is acceptable. But there is no inconsistent messaging for suicide. So it is not such a clear issue.

Sir, my second issue is with the arguments put forward by the opposing camp. The opponents of the repeal have expressed concern that any repeal may be construed as endorsement by the Government in favour of alternative lifestyles. That is a fair point. However, likewise, I hope that any decision not to repeal will not be regarded as an endorsement for some of the reasons that have been advanced to oppose it. What are some of these reasons?

First, the argument advanced by some religious groups that section 377A should be retained because homosexuality is an abomination. I respect their right to express their views, and I do not think this is the appropriate time or place for me to discuss it. But we must remind ourselves that we are a secular state, where every one is equal in the eyes of the law, and it is important to assure all citizens of Singapore that decisions will always be made on secular grounds.

Second is the notion that section 377A reflects our Asian values. But section 377A is not even Asian in origin. Section 377 was originally based on an English criminal law which sought to prohibit sodomy, and was incorporated into the Indian Penal Code in late 1862. It was also adapted for the Straits Settlements Penal Code in 1871. Section 377A was later added under the sub-title “Unnatural offences” in 1938. Both sections were absorbed unchanged into the Singapore Penal Code when the latter was passed by Singapore’s Legislative Council on 28th January 1955. In short, we inherited this from the British. There is nothing distinctly Asian about it.

Third is the argument that repealing section 377A will lead to a rampant increase in homosexuality, and thereby increase HIV rates. First, retaining the law can make no difference because offenders have already been told that they will not be prosecuted. Second, Sir, it is stretching logic to suggest that the repeal will lead to a sudden proliferation of homosexual activity. Thirdly, making something illegal only forces it underground. That will restrict the ability of the Government to respond to the HIV threat through promotion and education, when Government agencies feel that they cannot engage with the gay community in any way except a condemnatory one.

Finally, Sir, is the argument that the repeal is a slippery slope, that it will herald the end of the family unit. As I have said earlier, there is no consistency in our laws to support this argument. Further, while society may frown on homosexuality, that, by itself, does not justify criminalising it. A number of speakers, at least one of them, have highlighted the surveys in the Straits Times where the public was polled and 70% were said to frown on homosexuality. I can understand that. Seventy percent frowned on it. But how many actually said that they were willing to criminalise it? That question was not even asked, and that is a serious question because that is the issue we face today.

Some Members have mentioned the possibility of same-sex marriages occurring here. That, no doubt, will be an issue which gay activists will push further down the road. But that involves the Government actively endorsing and passing legislation to recognise same-sex marriages. So the arguments here do not apply.

Sir, can I end by putting the question in another way? I say there is another way to test the issue: assume we are here debating whether to include section 377A into our Penal Code, would we do it? I am not sure we would, because we would hesitate about passing laws to deal with private acts in the bedroom. But because it is already there, we are comfortable living in there.

Sir, it may well be that our society today is not ready to debate this issue. I hope that it will not be too long before we feel ready to do so, because I think that is a sign of our growing maturity. But when we do debate this issue, I hope that the debate will be calm and measured as that typifies the way we do things in Singapore. Certainly, we do not wish to see any proliferation of hate messages of mails and other things which Professor Thio Li-ann has talked about. That is certainly not the way we do things in Singapore, and long may that continue. Ultimately, laws should be passed or repealed not only because the majority wants it that way, but because it makes sense and it is in the interests of Singapore as a whole, including the interests of all minority groups.

Advertisements

0 Responses to “Parliamentary debate on Section 377A, Part 9: Hri Kumar”



  1. Leave a Comment

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s




Archives


%d bloggers like this: