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23 Oct 2007

singapore parliamentarians debate retention or repeal of section 377A

Lawmakers in Singapore began a rigorous debate on the retention or repeal of Section 377A of the Penal Code in the Parliament yesterday as voices calling for equal treatment of Singapore's gay citizens was heard possibly for the first time in the Parliament House.

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"We're not going away; we're here for the long run." Said Dr Stuart Koe, CEO of Fridae.com and one of the three who started the Parliamentary Petition, when asked what the group's plan was should the petition not be successful. The two other petitioners are Tan Joo Hymn, a full-time mother, and lawyer George Hwang.

NMP Siew Kum Hong presented the petition on behalf of 2,341 people while Thio Thio Li-ann argued against repealing Section 377A while explicitly describing sexual acts in Parliament.

"If we don't address this in a timely manner, it is very possible tensions will rise. It is very possible that people will feel like they can continue to make very intolerant and degrading remarks. It is possible that people will feel that 377a allows them to discriminate against (gay) Singaporeans."

Dr Koe was speaking to reporters at a repeal 377A press conference held at The Arts House which was formerly the old Parliament House less than three hours before Parliament convened at the new Parliament house across the road.

"To have a law that they articulate they are not going to enforce really brings the law into disrepute." He said referring to the government's promise to not enforce the law despite not repealing it.

"Either put the gun down, or pull the trigger."

Later in the afteroon, lawmakers in Singapore began a rigorous debate on the retention or repeal of Section 377A of the Penal Code in the Parliament yesterday as voices calling for equal treatment of Singapore's gay citizens was heard possibly for the first time in the Parliament House.

Under current laws, any male persons found guilty of engaging in "gross indecency" with another male, whether in private or in public, faces a jail term of up to two years.

Senior Minister of State for Home Affairs and Law Professor Ho Peng Kee reiterated that the "majority finds homosexual behaviour offensive and unacceptable" and thus the law will remain on the books.

Nominated Member of Parliament (NMP) Siew Kum Hong tabled a petition signed by 2,341 persons from all walks of life who called for the repeal of the said section as they view the retention of that section as discriminatory and unconstitutional when a related Section 377 is to be repealed in the Penal Code (Amendment) Bill which is having its second reading in the same session. The last time the parliament received such petition was in 1985.

Siew presented the petition in Parliament shortly after the sitting commenced at 1.30pm. In his 30-minute speech in the late afternoon, he challenged the selective use of the law for moral 'signposting' highlighting that other 'immoral' acts such as adultery are not criminalised. Disagreeing with critics who argue that "this is not the right time to repeal 377A," he retorted: "I disagree. I say there is no wrong time to do the right thing."

"It is not harm that results from such acts being performed between adult men, but the moral disgust the majority says it feels.

"The 'signposting' argument is fundamentally flawed. It is couched in the language of 'the majority'. But let us not forget another phrase involving the majority: the tyranny of the majority."

Nine of the 12 parliamentarians who spoke touched on the issue. MP Hri Kumar joined Siew in questioning the reasons for not repealing the law while the others including MP Alvin Yeo, Christopher de Souza, Indranee Rajah, Zaqy Mohamad and NMP Thio Li-ann supported its retention.

In what was described by the local broadsheet as a "fiery oratory against the 'radical political agenda' of gay rights activists" which had "many Members of the House (thumping) their seats in approval," Prof Thio spoke for 30 minutes{video}{text} - the maximum time allotted.

The law professor at a local university said: "Like many, I applaud the government's wisdom in keeping 377A which conserves what upholds the national interest. 'Conservative' here is not a dirty word connoting backwardness; environmental conservation protects our habitat; the moral ecology must be conserved to protect what is precious and sustains a dynamic, free and good society.

"The welfare of future generations depends on basing law on sound public philosophy. We should reject the 'argument from consent' as its philosophy is intellectually deficient and morally bankrupt.

"The real question today is not 'if' we should repeal 377A now, or wait until people are ready to move. This assumes too much, as though we need an adjustment period before the inevitable. The real question is not 'if' but 'should' we ever repeal 377A. It is not inevitable; it is not desirable to repeal it in any event.

"'Sexual minorities' and 'sexual orientation' are vague terms - covering anything from homosexuality, bestiality, incest, paedophilia - do all these minority sexual practices merit protection?

"Anal-penetrative sex is inherently damaging to the body and a misuse of organs, like shoving a straw up your nose to drink. The anus is designed to expel waste; when something is forcibly inserted into it, the muscles contract and cause tearing; fecal waste, viruses carried by sperm and blood thus congregate, with adverse health implications like 'gay bowel syndrome', anal cancer. 'Acts of gross indecency' under 377A also covers unhygienic practices like 'rimming' where the mouth comes into contact with the anus."

She farther listed what "pro-gay academics" have identified as the "5 main steps in this agenda in their study of foreign jurisdictions" including "to prohibit discrimination based on 'sexual orientation'. But would this not include all sexual behaviour? 'Sex before 8 or else it's too late' is the motto of the North American Man Boy Love Association. Should we judge pedophilia or be relativist and promote 'anything goes' sexual experimentation?"

"Sir, to protect homosexuals, some countries have criminalized not sodomy but opposition to sodomy, making it a 'hate crime' to criticize homosexuality. This violates freedom of speech and religion; will sacred texts that declare homosexuality morally deviant, like the Bible and Koran, be criminalized? Social unrest beckons. Such assaults on constitutional liberties cannot be tolerated."

Applause was heard in the public gallery when Prof Thio ended her speech. A newspaper observed that the attendance in the public gallery was unusually high with academics, law students, gay activists as well as Prof Thio's supporters including her mother Dr Thio Su-Mien. Dr Thio, a former Dean of a local law school, has notably written to the press on several occasions to warn against the 'gay agenda' and disagree with the government's policy to not discriminate against the employment of openly gay individuals.

The debate on the Penal Code (Amendment) Bill continues today in Parliament, with MPs Baey Yam Keng, Lim Biow Chuan, Ellen Lee, expected to speak. Baey has expressed his support for repeal publicly at a public seminar while Lim has expressed disapproval in a press interview.

Next page: What was said in Parliament on Oct 22


Outlining the reason for the retention of Section 377A, which penalizes male persons who engage in "gross indecency" with another male, whether in private or in public, with a jail term of up to two years, Senior Minister of State for Home Affairs and Law Professor Ho Peng Kee said that public feedback on the issue has been emotional, divided and strongly expressed, with the majority calling for its retention. His ministry assesses that "Singapore is still a largely conservative society. The majority finds homosexual behaviour offensive and unacceptable. Neither side is going to persuade or convince the other of their position. We should live and let live, and let the situation evolve, in tandem with the values of society."

What was said in Parliament on Oct 22

Senior Minister of State for Home Affairs and Law Professor Ho Peng Kee:

From the top: Senior Minister of State for Home Affairs and Law Professor Ho Peng Kee; NMP Siew Kum Hong; MPs Hri Kumar, Alvin Yeo, Christopher de Souza, Indranee Rajah; NMP Thio Li-ann and MP Zaqy Mohamad

Police has not been actively enforcing this provision, and will continue to take this stance. But, this does not mean that the section is purely symbolic, and thus redundant.

Whilst homosexuals have a place in society, and in recent years more social space, repealing Section 377A will be very contentious, and may send a wrong signal that government is encouraging and endorsing the homosexual lifestyle as part of our mainstream way of life.

Nominated Member of Parliament (NMP) Siew Kum Hong:

The amendment bill amends 377 to legalise private, consensual anal and oral sex between heterosexual adults. But 377A, which criminalizes the same acts between men, is retained. This discriminates against homosexual and bisexual men. The amendment of 377 without also repealing 377A is therefore unconstitutional under Article 12(1) of the Constitution, which provides that "All persons are equal before the law and entitled to the equal protection of the law."That is because it does not satisfy the legal requirements for derogating Article 12(1).

But reflecting the morality of the majority is not a stated aim of the Penal Code, nor is it an accepted objective of the criminal law. Clearly then, 377A has no rational connection with any legitimate aim of the Penal Code. Its retention, which leads to different treatments of men engaging in oral and anal sex, and of heterosexual adults doing the same, without any legally acceptable justification, must therefore be unconstitutional.

We are saying that there is no harm arising from such private and consensual acts between heterosexual adults. Why should it be any different when those acts are performed between adult men? What is the differentiating factor that leads to harm? There is none. There is no harm that would be recognised by the criminal law.

It is not harm that results from such acts being performed between adult men, but the moral disgust that the majority says it feels. But there is a very good reason why the criminal law should not reflect public morality. And that is because doing so can lead to the discriminatory oppression of minorities.

The "sign-posting" argument is fundamentally flawed. It is couched in the language of "the majority". But let us not forget another phrase involving the majority: the tyranny of the majority.

The repeal of 377A is not a gay issue. It is not about gay rights. It is not just for gays, or friends or relatives of gays. No. It is about fairness, justice and non-discrimination. It is about tolerance, understanding and inclusiveness. It is about upholding the fundamental protections afforded by the Constitution, the basic pillars underpinning our country. These are surely issues for all Singaporeans.

I ask this House to "sign-post" the values of fairness, justice, nondiscrimination, openness and inclusiveness, which are values fundamental to a secular democracy.

There is no wrong time to do the right thing. Now is the time, for this House, which represents all Singaporeans, to lead by example. Now is the time, for us to teach our children, not to discriminate against people who are different from us, but to understand them and show compassion for them.

Member of Parliament (MP) Hri Kumar:

� laws must meet the 3 Cs - be clear, be consistent and be concrete - meaning that it must be substantive, effective and make sense. What I find difficult about this issue before us is that while the majority do not wish a repeal for good reason, intellectually Section 377A does, in some respect, fall short of what a good law is or should be.

� the question arises also why 377A does not deal with lesbianism. Over and above the legal basis for discriminating between men and women, where is the consistency?

� 377A is not even Asian in origin. 377 was originally based on an English criminal law which sought to prohibit sodomy and was incorporated into the Indian Penal Code in the late 1862. It was also adapted for the Straits Settlement's Penal Code in 1871. Section 377A was later added under the sub-title Unnatural Offences in 1938. Both sections were absorbed unchanged into the Singapore Penal Code when the latter was passed by Singapore's Legislative Council on Jan 28, 1955. In short, we inherited this from the British. There is nothing distinctly Asian about it.

� while society may frown on homosexuality, that, by itself, does not justify criminalising it.

Assume we are here debating whether to include 377A into our Penal Code, would we do it? I'm not sure we would because we would hesitate about passing laws to deal with private acts in the bedroom. But because it is already there, we are comfortable leaving it there. Sir, it may well be that our society today is not ready to debate this issue and I hope that it will not be too long before we feel ready to do so, because I think that's a sign of our growing maturity.

Member of Parliament (MP) Indranee Rajah:

I think I can understand, have some sympathy with the concerns that the gay community or the homosexuals in Singapore have but I think I would like to address some specific legal points made by Mr Siew... the entire basis on which the petition rests is that it is a violation of Article 12(1) of the Constitution which provides that all persons are equal before the law and entitled to the equal protection of the law.

What it means when you say that all persons are equal before the law. We don't look at your sexual orientation in determining whether or not you should be prosecuted or you should be charged. At the time when you had slavery, there were laws in place which reflected the public morality of that time. If you had been in America at the time when they had slaves and you had said to somebody, 'You should not have slaves because slavery is wrong', nobody there at that time would have agreed with you because the society was such that that was the correct thing at that time. And that's precisely the point because societies do evolve. Clearly we have evolved to a stage where we now regard slavery as wrong, we certainly regard discrimination on racial and religious grounds as wrong but in some places, that is still regarded as correct.

I don't think we want to have a situation where we demonise homosexuals. We certainly do not want to regard them as anything less than Singaporeans, But the point is, what does our society want for itself? Societal rules are not purely a matter of societal choice, of free choice. A murderer could say he's free to kill, but society disagrees. Murder is a crime.

Member of Parliament (MP) Alvin Yeo:

Equality before the law is a fundamental concept, but it cannot be looked at in vacuum�Laws can and do change, based on a reconciliation of different views. But such changes, particularly where they involve deeply held, deep-seated religious and moral beliefs, do take time, and they cannot be forced. And I hope that all concerned in this particular lobby effort will be patient, and understand that the views of others do count as well, and try to give this issue more time and not let it be something that divides our society.

Member of Parliament (MP) Zaqy Mohamad:

Keeping the status quo was in the interests of society as a whole, as homosexual activities were still considered to be 'outside the mainstream'. Decriminalising it can be seen as an endorsement or support, and this will only divide the community.

Member of Parliament (MP) Christopher De Souza:

The retention of s 377A is a non-amendment. Yet, its retention has attracted the most press.

A repeal of s 377A will not merely remove of an offence. It is much more significant than that. Because of the concept of negative liberty
- i.e. that which is not prohibited is allowed - the removal of s 377A puts homosexual lifestyle on par with heterosexual lifestyle. It is to accord both lifestyles a sense of parity.

There are far-reaching consequences. If it is repealed, arguments can be made that rights accorded to heterosexual couples must be accorded to homosexual couples. This has happened in many jurisdictions - US, UK, Canada, Denmark, Netherlands to name a few.

� in the UK, except that gay marriages are termed same-sex civil partnerships. In fact, the law in UK is entrenched in the Civil Partnership Act 2004. Under that Act, a civil partnership is defined as 'a relationship between 2 people of the same sex� which is formed when they register as civil partners of each other.'�There has been recent judicial opinion in the UK (in the case of Sec of State for Work & Pensions v M) that the Civil Partnership Act 2004 "grants to same sex couples the same legal recognition that the law grants to opposite sex couples. It allows them � a formal status with virtually identical legal consequences to those of marriage."Incidentally, UK is the jurisdiction with which Singapore law has the most intimate relationship. What happens there could happen here if s 377A is repealed.

Adoption by same-sex couples may be the second consequence of a
repeal of s 377A�.Do we want our family-centric culture and the traditional definition of "family" to be threatened?

Another consequence if s 377A is repealed is the effect it will have on Spousal rights. Same-sex partners may be statutorily entitled to benefits because of their new found 'spousal' status. This is already the position in some states in the US. How will we cope in Singapore where traditional definitions of 'family' and 'marriage' have been the bedrock of the HDB policies. How will it effect the laws of intestacy? Would we then need to change the definitions of spouse under say the CPF Act or Income Tax Act? These are far-reaching consequences

It flows that with changes in how marriage, the family nucleus and spousal rights are defined, there will be pressure to change the curricula in our schools. Do we want to see our children being taught that homosexuality is an acceptable alternative lifestyle choice?

NMP Thio Li-ann:

Anal-penetrative sex is inherently damaging to the body and a misuse of organs, like shoving a straw up your nose to drink. The anus is designed to expel waste; when something is forcibly inserted into it, the muscles contract and cause tearing; fecal waste, viruses carried by sperm and blood thus congregate, with adverse health implications like 'gay bowel syndrome', anal cancer. 'Acts of gross indecency' under 377A also covers unhygienic practices like "rimming" where the mouth comes into contact with the anus.

Worker Party chairman and Non-Constituency MP Sylvia Lim told Parliament that her party had considered the issue of Section 377A for a long time and they could not arrive at a consensus.

Videos can be viewed on Channelnewsasia.com and Straitstimes.com

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