377A - Phantom Menace 7

Sometimes you have to wonder, how independent is the Attorney-General’s Chambers (AGC) when it comes to that infamous 377A?

Today’s article puts it beyond doubt that AGC is independent. 

With deliberate public emphasis, it is entitled “A-G: Prosecutor’s discretion on Section 377A not curbed.” 

AG Lucien Wong felt that he had to clear the muddy waters here about the sense and pursuit of justice on the enforcement of 377A after two former AGs have come out in the open to speak or write about a rather undesirable bind between the separation of state and prosecutorial discretion.

Lucien Wong said that Walter Woon and V.K. Rajah “have recently suggested that it is not desirable for the Government and Parliament to direct the public prosecutor (PP) not to prosecute offences under Section 377A of the Penal Code, or to create the perception that they are doing so.”

VK Rajah added: “from a legal point of view, the assurance given in Parliament that Section 377A although not repealed will not be enforced, is constitutionally unsatisfactory.”

So, Lucien Wong as the current AG has to step up to the prosecutorial plate as well to say his peace and stepping up he did, although the footing may be a little wobbly in my view. 

Unlike Walter Woon who recently mentioned that ”we cannot have a crime which is not enforced (and) the Government should not tell the public prosecutor that some things are crimes but there will be no prosecution”, Lucien Wong argued otherwise and said, “such comments may give rise to the inaccurate impression that the exercise of the PP’s discretion has been removed or restricted in respect or Section 377A.”

That was how inaccurate the impression that the two former AGs had presented to the public and this is how the current AG intends to clear the air about it: -

“...the police, when conducting investigations into an offence under 377A, “will decide whether or not there is sufficient basis to refer the case to the PP. It will then be for the PP to determine whether to prosecute. In doing so, the PP exercises his independent discretion on whether to charge the offender, solely on the basis of his assessment of the facts, the law and the public interest.”

And this is the part that Lucien Wong put his discretionary heavy foot down to crackling effect. 

“While the PP is entitled to consider public policies in exercising his discretion, these do not fetter the exercise of prosecutorial discretion.”

How’s that for unshakeable prosecutorial discretion eh? 

Lesson? Two, just two for now. 

1) Should gays now think twice before contravening that dastardly 377A when they express their intimacy and unreserved love in the privacy of their bedroom? 

No, no fear here, because their current AG has this assurance even if 377A is breached or suspected to be breached, and it is this in a nutshell: - 

“No unexpected or surprise stand-by bed raid, or at all”.

He noted that ”the Government’s position on Section 377A is that police will not proactively enforce this provision, for instance, by conducting enforcement raids.” 

If you miss it, “proactive” is the key word here. That to me may just be prosecutorial discretion walking with a slight limp. 

So, the reality is that even if there were a tip off by a member of public that so-and-so have professed their love on FB and leave no doubt that they will (when the occasion calls for it) express their love behind closed doors in direct violation of that devious 377A, you can rest assured that there will not be surprise enforcement raids to apprehend the offenders for their alleged reprehensiveness.

Surely, this would be different for such crimes like shoplifting done at night, private fights behind closed doors and consumption of drugs in one’s bedroom. 

Their enforcement based upon a tip off would be swift, enduring and complete, but 377A is a different offending kettle of fish here? 

In fact, for drug consumption or dealing with contrabands, the circumstances leading to an arrest would consist of an elaborate stake out, undercover operations and even planting a mole at the heart of the criminal activities. 

But consenting adult gays can rest assured that their friendly neighbourhood police officer will not be donning civilian clothes and popping out from under their bed anytime soon, or at all.

Mm...god forbid that some people out there may just mistake all that for a particular judicial strain of prosecutorial favouristism. God forbid.

I guess all crimes are created equal but some are more equal than others; 

And...

2) With regards to the current state of affair, I think there has to be more consistency (or candidness) in the matter. 

Here we have three camps: the two former AGs (if we are not throwing Tommy Koh into the fray), our government (represented by our PM and Law Minister) and the office of the Attorney General’s Chambers. 

In one corner, we have LHL and Shanmugam who have already said that they will somehow let dead dogs lie when it comes to 377A. 

Our PM as reported said: “Till the majority changes, the “uneasy compromise” on 377A, as PM Lee described it, that we decided upon more than a decade ago, remains the only viable position: Given the majority view, the law remains on the books. But the Government does not and will not enforce 377A.””

Underscore “does not and will not” enforce it. 

That should be enough to send a tremor of certainty in the heart of various administration down below right? And I suppose the AGC adopts a see, ear and speak no evil stand on that? 

Alas, the point here is not so much about prosecutorial discretion to charge or not, but whether 377A is still effective to serve its purpose or not. We may be fighting over one “discretion” tree and missing the entire “constitutional purpose” forest. 

Then, in the other corner, we have the two former AGs. They are calling a spade a spade. They mince no words. 

VK Rajah is saying it is constitutionally unsatisfactory and Walter Woon is saying that the Government should not direct the AGC to prosecute or not, or create that perception. 

Surely, Walter Woon cannot be inaccurate on that perception part right? 

And last but not least, because this debate will go on like that Titanic song, we have in the other corner, our overstressed AGC in a high wire act. 

Lucien Wong made this clear: “However, if there are reports lodged by persons of offences under Section 377A, for example, where minors are exploited and abused, the police will investigate.”

Then, he went on to illustrate his point by citing a case in 2008 when a suspect was charged under 377A for making a 16-year-old male perform oral sex on him. 

He said that the AGC then took into account “all the facts and circumstances of the case, including the complainant’s age and the fact that the offence had taken place in the public toilet” before releasing the prosecutorial guillotine. 

Well, I am very sure that if the same were committed at home, in some hotel room or even overseas, they would not get away. The full force of the law will be on the perp for his crimes against a minor. 

In fact, if memory serves me right, I think there is a recent case of such incident in a public toilet, and I don’t recall the perp being charged under 377A (I think he was charged under section 376(1)(b)).

Landmine prosecutorial discretion?

The reality is, there are other less tainted and loaded section than 377A in the AGC’s arsenal of prosecution and 377A may just be left on the spinster’s shelf to satisfy that “uneasy compromise” that nobody wants to talk about. 

So, the three corner fight of seemingly inconsistent views of “does not and will not enforce”, “the perception that they are (not enforcing)” and “(such comments) give rise to the inaccurate impression that the PP’s discretion has been removed or restricted in respect of Section 377A” appears to sit quite uncomfortably with the concerned citizenry at large.

And because of that, some may perceive that our big brothers up there are not calling an apple an apple but a pineapple, or a spade a spade but a lemonade. 

Well, my personal view is that the current AGC cannot have his cake and eat it, that is, at the very least, it is not inaccurate to observe - far from a matter of mere perception - that PP’s discretion is somehow, and quite understandably, restricted to a large extent in order to adapt to the cultural and social realities at this current moment. 

Is this then a case of taking public policy into consideration to restrain the hand of prosecution or refusing to admit that 377A is largely redundant and fangless against a considerably large group of adult offenders in their pursuit of mutual passion and devotion behind closed doors?

Mind you, in my view, it is not just about one exercising his discretion to charge or not to charge, but it is a strict “no-fly-zone” when it comes to prosecuting some consenting adults under 377A when the conditions or circumstances is such that they hang the sign outside the door that reads: “Do not disturb”. Cheerz.