377A - Phantom Menace 8

The exchange between the AGs about 377A is reaching a good climax. 

Each sparring with their own point of view with articles to ST and The Forum section. The last word for now goes to the current AG Lucien Wong. 

He is insistent that PP is independent. PP’s discretion is not fettered at all because all reports about a possible violation of 377A will be investigated, all factors considered and PP’s discretion to take action or not is decided in accordance to the legislative intention of the law. 

Any catch? 

Well, not so much considered as a “catch”, but Lucien Wong did clarify that it however revolves around the public interest. That is the legal exemption. He in fact spelt it out. 

Public interest can be summed up as, two consenting male (female) adults engaging in sex in the privacy of their home or hotel room. 

So, even if technically you have committed an offence under 377A, but if you fall under what is described as public interest as mentioned above, you are safe from prosecution. You can stay calm and carry on. 

Is PP’s discretion fettered then? 

Now this has to be said. Both AGs (VK Rajah and Lucien Wong) said no, not in that strict sense. Because if you look at it, AGC still exercises his discretion to charge or not by weighing all relevant factors, including the public interest (that is, consenting adults doing it in private). 

That should be the end of it, right? We should just let dead dogs lie, right?

Well, I suspect the point the two former AGs (Rajah and Walter Woon) are trying to make is triggered by the government’s stand. They said 377A will not be enforced as per PM Lee and Shanmugam. 

In fact, as early as 2006, the Ministry of Home Affairs had already made it clear as reported: -

“While it is still technically illegal for men to have sex with other men, the ministry reiterated that it will not be proactive in enforcing this law against consensual acts that take place in public.”

And if words have meaning, then the government’s assurance to the gay community (as early as 2006) is that they will not face prosecution.

So, it is not about discretion anymore. We have to move beyond that. It is instead about the pretension of keeping up with a discretion that is fast becoming redundant or toothless. 

It is like the flimsy god-in-the-gap explanation for all the things we do not know at the time. 

We attribute rain to an angry god. Then we discover the hydrological cycle and an angry god is made redundant. 

We attribute a good harvest to a happy god. Then, we discover the science of seed growth and crop development, and a happy god is made redundant. 

We place earth at the center of the solar system (and possibly the universe) because of our perceived special status in God’s eye. 

Then, science or cosmology tells us that we are the third planet from the sun, and a very tiny and insignificant speck in the entire seen universe (not including the multiverse theory here). And over time, the geocentric theory is made redundant. 

Sooner or later, thanks to the god-in-the-gap fallacy, the estate upon which god stands to explain away our ignorance becomes smaller and smaller when advancing science gradually bites off chunks of it. 

Drawing parallel with that, we have our own government coming forward since 2006, and more emphatically recently, after the highest Court of India decriminalised gay sex, to assure the public that 377A will not be enforced. 

This public proclamation leaves no room for doubt that the enforcement estate upon which 377A stands is becoming smaller and smaller. 

It is like an old ”colonial” dog being led to the ”cultural” vet to get his ”enforcement” teeth pulled out one after one. 

And thanks to an “uneasy compromise” created by an unspoken alliance between the government and the religious section of society, the PP in my view is compelled in the name of prosecutorial independence to come forward to defend his unfettered discretion to enforce Section 377A, which is admittedly very much circumvent or limited when one throws the all-encompassing public interest into the decision making process. 

Most times, if not all of the time, when a police report is lodged about some adult gay sex activity being carried out in some private places, the mutterings under the AGC’s breath would likely be, “just let dead dogs lie.”

This seems to be the case if you were to survey the public prosecutorial landscape after the last charge of 377A in 2007. 

In the words of VK Rajah, ”Reference might usefully be made to the 2010 case against Mr Tan Eng Hong. Mr Tan and his co-offender were initially charged under Section 377A, but the charges were withdrawn and substituted with different offences shortly after Mr Tan filed a challenege against the constitutionality of 377A.”

He then added: “As far as I am aware, these are the only instances when Section 377A was invoked after the 2007 parliamentary debates.”

If that is true, and should be taken as true (since any successful charge under 377A would make for big headlines), then it can only mean two developments in Singapore: first, there are less (or almost zero) adult gay sex activity in our society or our prosecutorial hands under 377A are effectively tied by the binds of public interest.

If it is the latter development, then the concern expressed by VK Rajah (Walter Woon and Tommy Koh) comes into sharper focus and this concern is well captured in the prescient words of the current deputy AG, Hri Kumar Nair when he made this observations in 2017: -

“...it is unclear what the current legal position is.

...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 (A-G), who has prosecutorial discretion, may prosecute some but not all offenders?

That puts the A-G in a difficult position because selective prosecution will give rise to more issues. 

But if the intention is not to do anything at all, what is the purpose of having the law? Does it not hurt our credibility that we have laws that are toothless?

...in the long run, making some conduct criminal under our Penal Code while stating that the law will not be enforced, simply invites attacks on the integrity of the code.”

Mm...maybe, in the long run, that ought to be where all our concerns and arguments for or against 377A in the legal sphere is directed. Cheerz