Penal Code S377A

Peter Eng

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Singapore Constitution Article 12

(1) All persons are equal before the law and entitled to the equal protection of the law.

(2) Except as expressly authorised by this Constitution, there shall be no discrimination against citizens of Singapore on the ground only of religion, race, descent or place of birth in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.

(3) This Article does not invalidate or prohibit —

(a) any provision regulating personal law; or

(b) any provision or practice restricting office or employment connected with the affairs of any religion, or of an institution managed by a group professing any religion, to persons professing that religion.

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Singapore Penal Code S377A, says, 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 gross indecency with another male person, shall be punished with imprisonment for a term which may extend to 2 years.

This law has been challenged and will be challenged repeatedly.  Singapore, India and Australia with other countries have upheld this law, while perhaps many more have abandoned it.

This article is not about faith but about law and public morality. I join this conversation as a clergyman not as a legal professional.  But the issue at hand is a legal one. At another point, I will argue my religious position, but at this juncture, I will limit my conversation to the legal issue at hand, being persuaded that law must not be beyond the comprehension of ordinary people unschooled in legal matters.  It is because law derives a large part of its authority on the moral mores of the population at large. But that is again a different conversation. This conversation is limited to Penal Code S377A.

Why I support S377A

In November 2012, homosexual partners, Gary Lim and Kenneth Chee, challenged Singapore’s Penal code S377A which criminalises homosexual acts between men, on grounds that it is discriminatory as it targets men, and it is in breach of their constitutional right to equality (Article 12). In April 2013, High Court judge, Justice Loh dismissed the challenge by referring to the objective set in 1938 for the law. Yap Po Jen, Associate Professor of the University of Hong Kong regards the reasons given by Justice Loh to be inadequate (“Section 377A and equal protection in Singapore. Back to 1938?”Singapore Academy of Law Journal (2013) 25:630-640). K.C. Vijayan, (Senior Law Correspondent) echoes the observations of Yap Po Jen in “Better reasons needed for gay sex law” (Straits Times, 13 Oct, 2013). I like to suggest some reasons that I hope some will find more satisfactory.

The plaintiff argues that the criminalisation of male homosexuality (and not female homosexuality) is discriminatory. However, laws regularly make distinctions or criminalise one sex for a certain activity and make no mention of the other because it reflects reality. Laws criminalizing rape, polygamy, or concubinage, typically criminalise male behaviour. The intent of the law can be extended to females, but these laws have not been invalidated on account that they discriminate against men, when there is good reason to specify men. Given the change insocial behaviour, it is perhaps right that female homosexuality should also be criminalised to ensurea sense of equality.

Redeeming-the-Rainbow (1)Homosexual activists represent homosexuality as no more than a “sexual orientation” and this is closely related to claims that people are born homosexual, and thus should not be penalised for homosexual sex.  Consideration about orientation or genetic predisposition is irrelevant because the same argument can be made for rape, sex with children, incest, bestiality, etc. It is not the orientation that is criminalised but the action.

Another popular concept is that mutual consent justifies the homosexual relationship. Mutual consent is relevant to morality and criminality when the act itself is right but coercion makes it wrong (e.g. heterosexual rape). But if the act is wrong in itself, mutual consent does not make it right (e.g. incest, polygamy, concubinage). Mutual consent among homosexual adults begs the question if the consenting parties are morally right.

While different societies may adopt different ideas of sexual morality at different times, and what is gross indecency in one society may be deemed normal inanother, it does not follow that moral relativity in some areas necessitates moral relativity in all areas.

I suggest that the question of morality is primarily driven by the biological necessity of heterosexuality and secondarily by the social norm that regards homosexuality as aberrant.In the course of ordinary events, heterosexual engagements are necessary for human reproduction, and the survival of the human race. Homosexual engagements preclude human reproduction. The biological imperative of heterosexuality for our survival (and the self-destructive consequences of homosexuality) instructs us clearly that homosexuality is contrary to the law of nature. Heterosexuality is a biological imperative. Conversely, homosexuality is biologically self-destructive. This should be the primary consideration in the non-religious consideration of the moral rightness of homosexuality.

The second compelling consideration is the mosmaiorum (the moral mores of the majority).  The moral sensitivity and agreement of a society on a subject is important in determining laws. 78% of Singaporeans are religiously affiliated and 22% are not. Those with religious affiliationwould regard homosexuality as deviant (especially Muslims and Christians).  It is likely that a majority of the 22% without religious affiliation would also consider homosexuality an aberration. This is different from the question of whether homosexuality should be criminalised.  It is very possible that one can regard an action as immoral but chooses not to criminalise that immoral behaviour.

There are fundamentally two approaches to the formulation of laws. One approach sets forth the ideal morality but the execution of such a law is done with deliberate laxity because too many fail to attain to it. An example of this would be the monogamy laws given at a time when polygamy or concubinage was rampant. It is common knowledge that when it comes to the estate of a person, the Singapore legal system makes provisions for common law wives and their children, and completely ignores the illegality that leads to such a situation. Over time, the ideal morality of monogamy and the prohibition of concubinage are strengthened in the society.

The second approach to the formulation of laws is to make allowances for actions recognised as immoral.  These immoral but legal actions are limited by law. For example, prostitution is legal in Singapore, but solicitation which promotes prostitution is illegal. If there is no moral issue with prostitution, why should solicitation be criminalised? At the same time, if prostitution is immoral why allow it? The reason for legalising prostitution is simply that the law we formulate for prostitution is one that limits immorality rather strives for the ideal.  This is an arguable manner of legislating as it makes a concession, but does not remove all legal restraints.

Penal Code S377A is a law that supports the ideal rather than concedes to a social reality that is difficult to fully enforce. The removal of S377A is possible if alternative legislation is created that recogniseshomosexuality as aberrant and needs to be controlled for the greater good of society, along the lines of Singapore’s laws on prostitution.  But the removal of S377A without an alternative law that restrains homosexuality is damaging to society at large.

There is a strong current of social opinion that what is done in private should not be legislated. This is an arguable position. However, Singapore has led the world in arguing that acts done in private can have significant social impact and therefore ought to be legislated. For example: (1) Banning pornography; (2) private nudity visible to the public; and more recently, (3) websites that promote marital infidelity. These are all private actions, but the precedence in Singapore law has been to limit social immorality by addressing certain issues at the level of private action. While one can argue on whether male homosexual activity ought to come under such consideration, it is clear that Singapore does legislate private morality and S377A is not unique in this regard.

The fact that many countries decriminalise homosexual acts should cause us to question our own laws. But we should retain what is good without fear of how we may appear on the world stage.

I would like to suggest that S377A should standfor the following reasons:

1.    Homosexuality is regarded as morally wrong by majority of the society in Singapore.

2.    For the sake of argument, even if the majority were to accept homosexuality, it is still wrong because it defies the biological imperative of heterosexuality for reproduction.

3.    We do not have an alternative legislation to regulate the immorality of homosexuality instead of criminalising it as in S377A.

4.    Private morality affects public welfare.

In conclusion, I wish to emphasize that my support for S377A is not support for intolerance towards homosexual persons. Their value as persons and potential for spirituality are assured in the Bible. And on those bases, I affirm their great potential to live in greater conformity to the image of God – a goal we all need to live out, both homosexuals and heterosexuals.


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