Repeal S377A

Posted on October 23, 2007. Filed under: Uncategorized |

Today, I had an interesting and extended lunch with some colleagues and clients. Of the table top topics discussed, the controversial issue on the repeal of the S377A surfaced.

Recently in Singapore, the local government went on an excercise to review the Penal Code, an act in the Singapore legislature that deals with criminal offences. One of the sections that was under review was the S377A, a section that makes homosexual sex  amongst men criminal.

Under the Penal Code, last revised in 1998 (not this section, it was adapted years ago from British Common Law), S377 A states the following:

“Outrages on decency.
377A. Any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to 2 years.” - http://statutes.agc.gov.sg/

After a round of public display of opinions, for and against the review of this section, the government announced that they will not remove the section from the Penal Code. Citing reasons that the Singapore public not being ready for it.

Some activists of gay rights then begun a website, http://www.repeal377a.com/ to garner public signatories to put together an ‘open letter’ of appeal to the Prime Minister of Singapore to repeal the decision made in parliament.As a controversial topic, the media loved the story and many articles were written about it.

A nominated member of parliament agreed to bring the issue up in Parliament for discussion, sparking anti-homosexual activities to take action by seting up rival website http://www.keep377a.com/. They had asked for signatories and participation to urge the government to keep the S377A.

Over the course of today and tomorrow, parliament is in session and this issue is part of the agenda. As the events are unfolding, I add my two cents worth of comments and thoughts on the issue.

S377A is indeed discriminatory. The section prohibits the engagement in sexual acts by two men (males), regardless if they are in consent, regardless if it is in private.

Firstly, if two women go to bed in a lesbian act, it is not illegal under the current interpretation of the S377A. It is specifically targetted, unfairly, at homosexual men.

Secondly, the act forbids the act regardless of whether the two men are consenting adults or not. Segregating the homosexuals, who are equal contributors to the economy, and discriminating againtst them. This means that two men who are in love with each other, cannot have sex, even if the act happens in private.

Over the past few weeks, there are many arguements that have been put forth in the public forums / platforms. They are generally in the following arguement threads:

Repealing the act will set forth an open spree of homosexual activities
If the act is repealed, does it change social perception towards homosexuality? No. Does it allow people (in this case men) to have sex in public or go on a sex spree? No. It merely allows two consenting adults to engage in sex in a private space.

Let me explain. To be ‘legal’ the following must be accomplished:
1) It must be two consenting adults. Otherwise, C224 S375 – RAPE comes into play.
2) It must be of adults that are above legal age, otherwise, S38 – The Children and Young Persons Act comes into play
3) The act must be done in private. Otherwise, C224 S295 – Obscene Songs comes into play

As it pens out, the Singapore legal system is robust and well covered. What is the material implication of removing the S377A?
– Men can now have sex with the same gender (much like lesbians today, theoritically) in private space, in consent and of legal age.

Further, the section is in the wrong place. It is now classified in the PENAL CODE, a body of laws relating to crimes and offenses and the penalties for their commission. Even if it is morally unacceptable, it should not be criminal.

Some argued that this might open the flood-gates for future amendments to the other laws and therefore, set forth an acceptance of homosexual lifestyles in Singapore. I personally think that this is a weak arguement, a topic of a seperate discussion. Why link it to a clear cut case of a discriminatory section within the Penal Code?

Does the section here explicitly endorse homosexual lifestyles? No it doesn’t. In fact, it would be naive to believe that the fabric of society will be changed by removing a single section within an act.  So, on a case-by-case basis, we need to examine the implications of every step. Lumping it together creates a convoluted arguement that is neither reflective of the true meaning nor meaningful for the discussion.

Repealing the act has serious implications on the morality of society
This arguement is untrue. The section does not endorse, nor condemn homosexuality. It relates to an act. The act in this case, is sex by two consenting adult males in private.

Moral standards in society differs from person to person. Whats worst, in homosexuality, there has been no conclusion whether it is born or bred.

Hence, how can we judge if the act is ‘right’ or ‘wrong’? Assuming that homosexuality is born, then does it mean that the person is then ‘born’ wrong? (Again a discussion for another time)

Some bring up regligious arguements, to condemn the act of homosexuality. This is particularly vocal in the Christian community. I respect the arguement, and it’s an individual faith that deserves that kind of respect.

However, different people belive and enroll themselves in different religions. One has to understand that thinkings differ from person to person. “One man’s meat, another man’s poison”. Such moral arguements are best governed by the religions that the individual belongs to and not by Statues or legislation. If any, for example, the vetican law should be sufficient, adequate and effective to govern the act for the Christians. (or it’s equivilant)

As a buddhist, I once had the priviledge of meeting an abbot of a temple in Singapore. Over a brief moment, I told him that I was praying for a gay friend of mine, who had contracted HIV. He told me that whilst other religions specifically condemns homosexuality, Buddhism has yet to do so. In fact, in the eyes of Buddha, all men are equal, regardless of who they are or what their sexual orientations are. He asked me to invite my friend to seek solace from the temple. I was deeply touched by the message.

The moral of the story is that, the level of acceptance for homosexuals differs from religion to religion. Its treatment and views towards homosexuality also differs, hence, IMHO there is no universal truth at the moment.

What’s moral and whats not, is best left to the moral indicators, found either in religions or other platforms. The platform should not be legislation.

Legislation paves the way for fairness, equality and justice. Discrimination should not be allowed, and in that light, repeal the S377A.

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2 Responses to “Repeal S377A”

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indeed for a personal and private choice that does not do explicit harm to another, there is no valid reason for others to assume the moral high ground.

the act, whether it exists or not, has not been enforced for reasons of
1. implicit recognition that it is archaic
2. sensitivity to the human’s personal choice that the law can’t interfere with

does it still make a difference if it should be repealed or not?

or does the very existence of such a law (even when unenforced and forgotten), strikes fear into the community it singled out?

Agree with you, but issn’t it shooting oneself in the foot to have the section there but closing an eye on it? There are serioous remifications to that principle. Let me explain.

In theory, once a section is included in the penal code, a violation of the section constitutes a criminal offence. By closing an eye on the issue, is it, then closing an eye on a criminal offence being committed?

Secondly, at policy level, it can be said that it will not be implemented. At ground level, it is still an offence. So, how are the law enforcers going to reconcile this?

Finally, havin kept the section, if the community pushes the boundaries, then at what point does it consider an offence? It is really vague and fuzzy, not the best case scenario from a legal standpoint.

For example, if someone goes to court, then do the lawyers cite the statue or should they rely on legislative intent? I think the former’s gonna stand, statutory offence right? What then happens to the policy decision in Parliament?

Will the policy advisory then constitute obiter dictum? Or will it act to the same effect as stare decisis?

At the end of the day, without removing the section, it is still a criminal offence, still discrimination, still an unfair practice, no matter what is said.

Of course, at least, the woes are heard. There are so many conservatives in the society that have yet to be educated on legal implications. There’s mix-up between morals and social acceptance from law.

On a political front, the decision is logical and rational.

It doesn’t however make right from a fairness / justice front. But the least we could do, is to discuss it in the public forum, of which Singapore did, and we did well. It educates the public, slowly, but surely. It is a step closer towards eradicating inbalances in society that still exists in today’s world…


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