The Non-enforcement of Singapore’s Anti-gay Law is Not a Good ‘Compromise’

Singapore’s Prime Minister has frequently said that a law that criminalises gay sex will not be enforced, but it will not be repealed. It appears that the government is brokering a tenuous “middle ground” among those for and against the law, given that public support to criminalise gay sex remains high. However, the prohibition of an activity which the government does not necessarily think needs to be prohibited, but is nonetheless forbidden on the sole basis that the majority does not approve of it poses several problems.

“I think we are open … No matter your sexual orientation, you’re welcome to come work in Singapore … [377A] remains on our legislation and it will for some time, but it has not inhibited people from living here,” said Prime Minister Lee Hsien Loong at the Smart Nation Summit held on 26 June 2019 (Gorey 2019).

In 2007, Singapore repealed a law that criminalised consensual sex “against the order of nature with any man, woman or animals” (Ling 2010). While the move was intended to decriminalise forms of heterosexual sex, it also decriminalised queer sex. The government, however, retained Section 377A of the Penal Code that criminalises sex between men, under grounds that Singapore was mostly a “conservative society and the majority of its people still found homosexual behaviour unacceptable” (Ling 2010).  Singapore’s judiciary has retained 377A and rejected claims of its unconstitutionality (Tan Eng Hong v Attorney-General 2012; Lim Meng Suang v Attorney-General 2015). Voices in favour and against the criminalisation of homosexuality in Singapore are strident. This heated debate led to an uncommon yet ambivalent pronouncement by Prime Minister Loong, who argued that while Section 377A will be retained, it will not be enforced (Straits Times 2007).

Competing Demands

With several nations decriminalising same-sex intercourse in the past decade and some also legalising same-sex marriage, it is time for Singapore to follow suit. Several documents such as the United Nation’s Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, the Yogyakarta Principles recognise the rights of lesbian, gay, bisexual, transgender, queer, intersex + people (LGBTQI). Singapore can refer to judgements made by several countries to adjudicate on issues of LGBTQI rights. For example, India, a country that was also under British colonial rule, decriminalised queer sex in a 2018 Supreme Court ruling that referenced judicial pronouncements in several other countries (BBC 2018).[1] Leow Yangfa, executive director of an organisation that works for LGBTQ+ rights in Singapore, felt that the judgement played a “big part in re-igniting and re-inspiring the latest round of petitions, debates and discussions about repealing Section 377A” (Mokhtar 2018). It led to the creation and circulation of a petition that called for the repeal of Section 377A under grounds that it violated the guarantee of equality and equal protection of the law under Article 12(1) of the Constitution. While the petition had around 45,000 signatories and was submitted to the government, the government said they had no plans to repeal 377A (Chua 2018).
The aim of retaining Section 377A was for reasons of deterrence. Based on its position, it appears that the government is brokering a tenuous “middle ground” among those for and against the law. Pro-377A activists rely on religious scriptures to make their arguments. For example, the National Council of Churches (NCCS) have based their stand on the Bible, arguing that it prohibits homosexual acts (NCCS 2018). Other organisations have released statements and rallied for support to retain 377A (St John’s Chapter 2018). Anti-377A activists argue that not only is homosexuality “normal” and a natural variation of human sexuality, but it is also in line with rights guaranteed under Articles 9 and 12 of the Constitution (Koh 2018). They also argue that 377A is outdated given that it was enacted during a time when social norms were vastly different (Chia 2014).
The government’s position has remained that while the provision will be retained, it will not be enforced. Charles Chong, a Member of Parliament and part of the ruling People’s Action Party took a different stance, calling the retention of 377A a “blemish.” Chong was “not convinced that there would be drastic consequences in our society” if 377A was repealed, as argued by those in support of the law (Mokhtar 2018). A survey conducted by Lynette Chua has shown that a majority of the Singaporeans disapprove of same-sex relations and agreed with the government’s decision to keep 377A (Chua 2017). When respondents learned of the government’s move to retain 377A while not enforcing it, the number of people who objected to 377A decreased. This suggests the government’s “non-enforcement position” is seen as an acceptable compromise.

Is Non-enforcement a “Good” Compromise?

In Singapore, it is common practice for law enforcement authorities to act upon complaints or reports and decide whether to press charges based on specific considerations (Chua and Shing 2003). The government has been publicly emphasising a practice of non-enforcement as a way to balance and strike a “compromise” between two opposing sides (Chen 2013). While the prime minister assures LGBTQI people that there is a place for them in Singaporean society, the very existence of 377A poses problems. The policy of non-enforcement, for one, can be changed without notice based on any reason the government deems adequate. In addition, discriminatory policies can potentially be created based on the existence of 377A (Hor 2007).
If there is no enforcement of a provision and hence no clear guidelines of what one can do without facing criminal sanctions, then there should be a clear prosecutorial policy consistently adhered to make the criminal offence more reasonably predictable (Hor 2012). However, there is no restriction to the prosecutorial discretion for 377A (Wong 2018). Indeed, a media report citing the attorney general states that “Police, prosecution retain independence in deciding whether to pursue [a] case” (Wong 2018). Most societies have a conception of public decency and would want to prohibit certain kinds of activity in public, which may still be lawful in private. Section 377A is applicable to both private as well as public. There is no need for it to be applicable in the private sphere; however, the prosecutorial mind is not directed in such cases over what can be done in private and what cannot be done in public.
“In the case of 377A … we are prosecuting some cases, such as where you have an older man preying on young underage boys. If it's two consenting adults, technically it's an offence but, if nobody complains, the police aren’t going to beat the bushes in the parks to spy on you. If somebody does complain, then the question is: Do we want to prosecute or do we just warn? Very often, we warn rather than prosecute,” said Attorney-General Walter Woon (Straits Times 2008)
Why is it that the existence of a complaint makes it relevant for a prosecutorial decision? An act between two consenting adult males in private should not be subjected to a complaint for it to be lodged, as the majority through the guise of public morality are restricting the intimate conduct of individuals in their private sphere (Boh 2014). There can be numerous circumstances where complaints can be lodged even though the act was done in private between consenting adults. If everyone is entitled to their private lives then how does this not infringe on their entitlement? Complaints should only be allowed in the case of activities which fall outside such a purview of two consenting male adults in the private sphere, such as between a minor and an adult or a person who has not consented. In such circumstances, there is a duty to prosecute even if no one complains.

Public Opinion on Discriminatory Laws

In 2018, Singapore’s then Minister for Law and Home Affairs said

“The majority are opposed to any change to Section 377A, they are opposed to removing it. A minority, but I have to say, a growing minority, want it to be repealed. Government is in the middle. This issue relates to social mores, values. So can you impose viewpoints on a majority when it so closely relates to social value systems? ... So, really I think society has got to decide which direction  it wants to go. And the laws will have to keep pace with the changes in society and how society sees these issues” (Mei 2018; Ong 2018).

A study conducted by the Nanyang Technological University buttressed Shanmugam’s views: arguing that about 69% of respondents held “negative attitudes towards lesbians and gays,” 29% held “positive attitudes” and 8.5% were neutral (Detenber et al 2007). The prohibition of an activity which the government does not necessarily think needs to be prohibited, but on the sole basis of the “majority” poses a huge problem. This blunts the moral force of criminal law as it demeans a particular behaviour which is presumably important to the individual and while the government does not think that it is harmful to society, it is labelled as a crime. Criminal law should only be reserved for conduct which the government considers to be clearly harmful to society.
The surveys reveal that activists who aim to decriminalise consensual gay sex face a huge task. While the courts have upheld the constitutional validity and the society still does not accept homosexuality, there is a need to overcome prejudicial social attitudes and also challenge the non-enforcement of the same. The government’s stance to try and balance both the pro and anti standpoints will not work in the long run. With an increasing public participation and shift towards a more liberal stance, Singapore will be exposed to increasingly globalised values and as a result, with enough public discourse there could be a possibility of the repeal of 377A.

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