by M Ravi
Laws criminalising sexual intercourse between consenting gay men have been recently struck down by the Indian Courts where our Penal Code originated from. Singapore is also the only country where same sex is defined as “male” to “male”. The equivalent of our Section 377A is Section 377 in Malaysia and India which is not male gender specific. Here despite gender-neutral provisions prohibiting sex in public places, and despite assurances from the highest levels of government, Section 377A continues to be used selectively against gay men. The provision reads as follows:
“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.”
In 2007, a parliamentary petition to repeal 377A on the grounds that it is inconsistent with Article 12(1) of the Constitution (that all persons are equal before the law) was submitted. A wide-ranging debate occurred across the nation, with even Minister Mentor, Lee Kuan Yew wading into the fray,
“If in fact it is true, and I have asked doctors this, that you are genetically born a homosexual - because that's the nature of the genetic random transmission of genes - you can't help it. So why should we criminalise it?…let's not go around like this moral police...barging into people's rooms. That's not our business.
That previous year, the Home Affairs Ministry announced that, although anal and oral sex in private between consenting heterosexual adults would be decriminalised as part of the first major overhaul of the penal legislation in 22 years, it would retain the ban on sexual acts between men. In his concluding speech on the debate over the repeal of Section 377A, Prime Minister, Lee Hsien Loong, told MPs before the vote,
"Singapore is basically a conservative society...The family is the basic building block of this society. And by family in Singapore we mean one man, one woman, marrying, having children and bringing up children within that framework of a stable family unit."
But, the Home Affairs Ministry added in relation to the Penal Code overhaul, that it would not be ‘proactive’ in enforcing this law against consensual acts that take place in private.
In November, I launched a constitutional challenge on behalf of my client which is now before the High Court to be heard on 7th December 2010 at 10.00 a.m. The Deputy Public Prosecutor subsequently amended a 377A charge to the gender-neutral Section 294, which reads:
“Whoever, to the annoyance of others —
(a) does any obscene act in any public place; or
(b) sings, recites or utters any obscene song, ballad or words in or near any public place,
shall be punished with imprisonment for a term which may extend to 3 months, or with fine, or with both.”
This amendment of the charge took place after the filing of the constitutional challenge. It is understood the DPP said that, after considering the facts, the charge was being ‘recalibrated’ from 377A to 294. It is not clear what deliberations went on because the facts of the case were very straightforward: two men are caught having sex in a public toilet. A penal system that is gender and sexuality-neutral and allegedly does not ‘proactively’ deploy 377A would naturally have turned to 294. The DPP on the other hand needed time to recalibrate.
Had it forgotten the official pronouncement on not ‘proactively’ enforcing? Would it have retained the same charge had the case been conducted in a more low-key way?
In 1998, Mr Lee Kuan Yew said that the issue of gay equality is up to society as a whole, not for the government to decide.
So, taking stock, we have a government that explicitly acknowledges that homosexuality is a genetic predisposition. The same government that will not ‘proactively’ enforce 377A. The same government that, since 2003, has no longer barred gays from sensitive positions in the civil service. Whose Prime Minister said,
“And our job as a government is to create an environment, and manage an environment in which there's maximum space for each person, each view...for each person to live his own life without impinging on other people.”
And yet, we still find 377A being used to prosecute. Is a double standard operating? Is the government trying to play both constituencies - gays and straights - off each other? Or is this just a case of rogue police and DPP officials allowing their own anti-gay, locker-room prejudices free rein?
Therein, as Shakespeare says, lies the rub. If a provision exists on the statute book that explicitly expresses the prejudices of a certain section of people, then you give carte blanche to those who would use it to further their own value system, regardless of how inimical this is to a modern, intelligent and thinking nation.
And make no mistake about it, Section 377A is, fundamentally, a provision of the law that falls in the category of laws that express human prejudices. Like the laws that once prohibited marriage between persons of different races in the United States and South Africa. Laws that prevented Jews from going to Oxford University. Or women from sitting in the House of Commons. Or operating as lawyers. Or voting. Laws that once prevented coloured people from entering the Cricket Club.
(After all, have you ever wondered why lesbians are not included in 377A legislation all across the Commonwealth? Because Queen Victoria refused to believe that they were capable of such behaviour!)
377A is a law that expresses such a prejudice and has no bearing whatsoever on national security or public safety. If it had, then the Home Affairs Ministry would never have said that it does not ‘proactively’ deploy it. So, we must conclude that the law remains on the statute book for other purposes. What they are we cannot discern, since the government does not make its views explicit other than to hint that it does not wish to upset the majority.
Having such a law then entitles this same majority to conclude that there is something morally unacceptable about being gay, regardless of the vast body of international scientific opinion that clearly knows it to be genetic. It entitles the majority to discriminate. It entitles the government to categorise national servicemen as being in ‘Category 302’, a medical code assigned to personnel who are homosexuals and upon which their future in the service of their nation is determined. It entitles the authorities to then refer them to the Psychological Medicine Branch.
It entitles the Registrar of Societies to refuse registration to groups whose aim is to assist and support gay men and lesbians.
It enables the Ministry of Community Development, Youth and Sports to grant S$100,000 to the Liberty League, an organisation affiliated with the so called ex-gay movement which promotes ‘healing’ from homosexuality’, a particularly odious form of ‘therapy’ which carries tremendous psychological dysfunction in its wake.
It entitles the Media Development Authority to ban positive imagery and depiction of homosexuality from being portrayed.
Far from approaching the issue in a mature and liberal way, befitting a nation that prides itself on being part of the First World, Singapore continues to languish with the rump of countries that sees nothing wrong with retaining on its statute book, an ancient, irrelevant, discriminatory, and (according to the Constitution) illegal provision. A provision that then allows policemen and public prosecutors to give free rein to their personal prejudices if they choose to.
This is the first time a constitutional challenge is mounted against Section 377A in Singapore. This challenge is long overdue but never too late. Featuring straight, bisexual, lesbian, gay and transgender, the forum will try to disentangle the issues surrounding this contentious question, and examine what can and need to be done if the ongoing discrimination against gay and bisexual men is not to continue so late into the modern age.
The present constitutional challenge is one of a public interest litigation as it involves civil liberties of affected citizens. The forum is open to all concerned persons, gay or straight, who are not satisfied if their government holds a provision on the statute book that it allegedly has no intention of using. Because to do so is to hold a power in reserve. To be used when preferred. It is a form of legal terrorism, to keep a section of the community in constant fear of being disenfranchised, of being annihilated.
M Ravi is a human rights lawyer and anti-death penalty activist. He will be speaking at a forum - 337a: Where did it come from and where should it go - on 27th November. Details of the forum is as follows:
Name: 377A – Where did it come from and where should it go
Date: Saturday, 27th November 2010
Time: 3pm to 6pm
Venue: The Public House, 42 Circular Road, Boat Quay
1. Mathia Lee
2. Vincent Vijeyasingha
3. Amy Tachiana
4. Hedrick Kwan
5. M. Ravi
Moderator: Mathia Lee
Contact: M. Ravi
Picture from theory.isthereason.