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VK Rajah added: “from a legal point of view, the assurance given in Parliament that Section 377A although not repealed will not be enforced, is constitutionally unsatisfactory.”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

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

Phantom Menace 9

Is 377A an impotent anachronism (per VK Rajah) or according to Law Professor Thio Li-ann, a contemporary, important law?

Today’s article by Prof Thio deserves to be read. 

She has been the most fervent and educated advocate against the repeal of 377A, and one of the most highly regarded guardians and voices of society’s moral conscience. 

Mind you, the debate has advanced up to the many layers of our little garden state, from pinkdot demonstration to the bustling social media corridors, from a DJ fighting to repeal 377A as he asserts “I am not a criminal” to PM Lee and our law minister assuring the people that it will not be enforced, and from laymen in the street to former justice, attorney generals and even an acclaimed ambassador at large at the highest echelon order of society. 

For me, my role has largely been parasitic as I ride on their views and present my views on theirs. I put on record that I have written much about this topic and 377A has kept me reasonably occupied most mornings as I browse through the papers to pin my thoughts on FB. 

Looking at the gladiatorial fight in the 377A ring, you can’t help but feel that it resembles a WWE tag team where each challenger with his/her logical point of views would put on their polemic gloves and rational headgear to tough it out in the ring for that five-minute fight of reason, passion and action either for a more liberal stake in our future or to preserve our moral, conservative society. 

Alas, at some point of this heated debate, you also get the feeling that it has become a shouting match premised mainly on demonstrating numerical strength (just look at the number of online votes on both sides) that has unfortunately polarised the society with one side fighting to preserve “societal morality” and the other side fighting to turn the attention on a more technical legal aspect of what to them is an archaic law that is largely redundant and discriminatory, and thus far from being constitutional.

And the shouting match has become more enunciated, refined and intellectually persuasive on both sides as they lift 377A from a hardly-bothered section hidden in one corner of the penal code to the center-hot-seat of society or town square. 

Indeed, both sides have intentionally and/or unwittingly contributed to the section’s social prominence.

Now, no one can say that they have not heard about that semi-retired section 377A living on the government’s “legislative” welfare. 

And if 377A were a rock or pop star, it would be as cool as Jon Bon Jovi or as hip as Justin Bieber (I know I am being flippant here, but you can’t deny the reality of its unintended popularity).

Just to add to that flippancy, I suspect what is missing here is a substitution of that alphabet “A” to any random number so that even the HDB folks of all ages can participate in the whole debate by queuing up at the 4D booths to try their luck on a possible lucrative strike at the expense of gender ambiguity. 

But flippancy aside, Prof Thio has raised a few good points no less and they mostly centered around the consequences of repealing 377A. 

She wrote as follows:-

“Some argue that pointing to the negative consequences that have taken place in other jurisdictions decriminalising sodomy is a “slippery slope” argument and that one should just consider the narrow, discrete issue of whether 377A is just or unjust in prohibiting homosexuality.”

Her point is that to say it is a slippery slope argument (as stated above) is a “red herring” because it seeks to ”obscure or diminish the consequences of repeal.”

And to Prof Thio, such consequences are “reasonably foreseeable” and “not speculative”, “both in terms of empirically observing developments in other jurisdictions”.

She went on to stress that “there is a straight line between decriminalising sodomy and down the line, legitimating same-sex marriage: Both rest on the same premise that homosexuality should be seen to be on a par with heterosexuality in terms of public sexual morality norms.”

On that premise, she wrote that “it is pivotal to their (gay) cause to repeal 377A as a first step to advance a broader agenda to normalise same-sex relationships, which demonstrates that 377A is not merely symbolic but substantive.”

And here is why it is not merely symbolic as Prof Thio forewarned that “the experience of other jurisdictions shows that decriminalising sodomy does often lead to subsequent activism for policy and legal changes towards the progressive normalisation of same-sex relationships in the name of “equality” and non-discrimination, coercively mandating the equation of homosexuality and heterosexuality.””

From there, she wrote about “religious tertiary institutions which support a non-traditional definition of marriage (becoming) grounds for legal actions in the name of “marriage equality”” and ”Christian bakers whose conscience shaped their refusal to bake cakes with pro-gay messages, regardless of who the customer is, have been sued on the basis of anti-discrimination legislation.”

So, that is the crux of her argument - the long and short (you have to read it to get the full flavour). 

Nevertheless to Prof Thio, it is not about some slippery slope argument that may lead to some unacceptable conclusion or imaginary consequences because when the moral levee breaks should 377A be repealed, she reminds us quite sternly of the opening of the floodgate of moral relaxation leading to the normalisation of homosexuality and same-sex marriages. 

Mm...one has to wonder here, is her floodgate of real (not arguably imaginary) consequences a backdoor to cloth the slippery slope argument with some believability? (Just thinking).

Lesson? Three. 

1) Personally, I don’t know whether it is wise, prudent or even expedient to expect a secular legislation like ours to make or unmake (or preserve) a law based on the happening of some “future imponderables”. 

Now, I am not saying that the consequences that Prof Thio warn us about once 377A is repealed will not come to pass when 377A is in fact repealed.

The truth is, we will never know for sure. And if we are honest about it, we would at least acknowledge that before launching into an instinctual Christian counterargument. 

But nevertheless, the swift rejoinder to that is, why risk it? Isn’t it better to be safe than sorry?

Well, as a believer, a father, a leader in my own right, I get that. I really do - prevention is better than cure...got it. 

However, my concern is, how do you “preach” all that to the ”unconverted”, that is, to the secular legislation without them seeing it as some “sky-is-falling” panic theory? 

But sure, for now, all believers can heave a deep sigh of relief because our PM Lee had taken a wild stab at the realm of moral triumphalism to say that if a referendum is held today, the majority of Singaporeans would vote for 377A to remain. 

Yet, trust me, it is not because he and his government believed in the floodgate argument that Prof Thio writes so passionately about. It is just a matter of administrative pragmatism and electoral accommodation. 

When the cultural tide changes, you can rest assured that no floodgate argument is going to convince them otherwise to scrap 377A. 

2) Another personal note is, does the legislation of morality ensure that every individual in our society will live morally for fear of punishment? 

Well, let me just say that we all know things are more complicated than that. 

From a biblical perspective, if the law works wondrously and enduringly, Jesus’ final words at the Cross would not be “It is finished”, but “it is optional.” (that is, you can be saved by law or grace, and for those in perpetual doubt and insecurity, by both). 

You see, if the goal is to use the law to preserve or advance “societal morality” like protecting the traditional family structure, should we then go back to criminalise adultery, imprison fornicators and/or outlaw abortion? Why stop at just fighting against the repeal of 377A? 

Are we then being disingenuous (or opportunistic) for fighting (with fiery conviction) against the repeal of 377A as if the whole moral foundation of our society depends on it, and then go about living our lives as if adultery and fornication can be left out of the penal code because they do not matter as much?

In other words, why should adultery or fornication be treated any differently than homosexuality since they all threaten the moral foundation of our society to a large extent?

And...

3) My last lesson is of the greatest concern to me since the day every major religious body (except the Buddhist Assoc) came forward most visibly and vocally to support the retention of 377A. 

I wonder, what would happen should 377A be repealed? Mind you, it is not too farfetched a future reality in our globalised, politically unstable and liberal world. 

And here is why I am deeply concerned, against the backdrop of Prof Thio’s article this morning. 

Prof Thio wrote that “377A inhibits the promotion of their (gay) ideological agenda and demands that society conform to their vision of sexuality.” 

She also wrote that “377A stands in the way of demands to positively portray, even celebrate same-sex relationship through vehicles such as free-to-air media programming and in school curricula, to fuel agitation to legalise same-sex marriage and child adoption by same-sex couples.” 

Personally, that seems to me to be giving a lot of attention, credit and fearsome power of wide social change to a fang-less section.

Alas, my fear is, have we raised 377A to new heights that it did not deserve in the first place, and thereby inadvertently bestowed it with such portentous significance that once it is gone (repealed), we are as good as finished? 

So, going back to what I’ve asked earlier, what would happen should 377A be repealed? Prof Thio puts it this way: “What consequences will any legal change engender?” 

At this point, we can’t really tell for sure. And prophetic warnings from one overzealous section of the society should never be taken as a future certainty; or else many of us will be storing up baked beans in our bomb shelter in anticipation of the end of days. 

But nevertheless, according to the way we have raised the specter of doom over the repeal of 377A, I am afraid that most believers will take it as a major defeat if that day should come to pass. In other words, our actions may have unintentionally magnified our disappointment in the event of a successful repeal. 

Unfortunately, we may have turned our ignorable aversion into an unhealthy obsession and thus tied our hope and faith inextricably to the retention of 377A. 

That to me is one slippery slope we as believers have unknowingly created (and politicised) that effectively distracts us from what we need to do to win trust, build bridges and close the gap in certain often neglected, shunned and misunderstood sector of society. Cheerz.