Section 377A: An impotent anachronism
(Indian members and supporters of the country's LGBT community celebrating the Supreme Court decision to strike down a colonial-era ban on gay sex on Sept 6. The ruling reignited debate in Singapore as to whether private sexual acts between males should be similarly decriminalised. PHOTO: AGENCE FRANCE-PRESSE)
Published Sep 30, 2018
Time for serious reconsideration of Section 377A
V. K. Rajah For The Sunday Times
In a recent landmark case, Navtej Singh Johar v Union of India ("Navtej"), the Indian Supreme Court broke new ground by declaring parts of the Indian equivalent of Section 377A of our Penal Code to be unconstitutional.
This promptly reignited local debate as to whether private sexual acts between males (or homo-sex for short) should be similarly decriminalised in Singapore. Section 377A, which penalises only male homo-sex, is regarded by many as an anachronistic expression of Victorian morality imposed on several British colonies. Far from expressing a universal morality, the sentiments inspiring this provision seem to be misaligned with the contemporary social mores of a multi-cultural, multi-religious and secular society.
It is noteworthy in this regard that no other colonial power apart from the British penalised such private acts. Indeed, no Asian society outside the Middle East has independently criminalised it.
Even Indonesia's national criminal code deems this to be a matter for the independent navigation of its individual provinces.
THE INDIAN DECISION AND ITS IMPACT
The Navtej decision, though instructive, is not in itself a legal pivot for Singapore. It is substantially premised on legal recognition that every individual has a right to privacy. This translates to a "right to be left alone… to enjoy life".
While the comparable constitutional provisions are broadly similar, Article 9 of our Constitution has for some time been construed more narrowly. Our courts do not recognise privacy as a constitutionally protected right. Personal liberty in Article 9 has been interpreted to mean freedom from unlawful incarceration. Nevertheless, much that was said in Navtej will resonate with many here.
For instance, it was compellingly emphasised that fundamental rights should be insulated from the "disdain of majorities", whether legislative or popular.
The parts of India's Section 377 that criminalised private male homo-sex were held to be
"irrational, indefensible and manifestly arbitrary", violating lesbian, gay, bisexual, transgender, queer, intersex ("LGBTQI") rights to equal citizenship and protection under the law without discrimination.
The court held that the provision failed to recognise that consensual intercourse within private confines is not harmful to society; what was in fact harmful was the stigmatisation that the criminal prohibition caused to members of the LGBTQI community.
Interestingly, the Indian government took a neutral stance on this matter. While the Bharatiya Janata Party continues to be unwaveringly opposed to gay marriage, it has adopted a policy of "no criminalisation, no glorification" - a momentous step for the right-wing Hindu party in a conservative country.
PARLIAMENT AND SECTION 377A
In the local context, indecent acts in public of any nature are already amply proscribed without Section 377A. In continuing to criminalise consensual private male homo-sex, Singapore is adhering to peculiar Victorian mores that now seem to have been duly discarded in all First and Second World democracies.
In the wake of extensive Parliamentary deliberations on Section 377A in 2007 culminating in the contentious decision to retain the provision, strong and polarised reactions to this issue persist in our society. The notion that decriminalisation is warranted only after a societal consensus is reached may be seen as an expedient rather than just approach.
From a legal point of view, the assurance given in Parliament that Section 377A although not repealed will not be enforced, is constitutionally unsatisfactory. The Government, or even Parliament for that matter, cannot selectively decide which laws in force to enforce.
The public prosecutor alone is constitutionally charged with the responsibility for enforcement. He is duty bound to consider enforcement of all laws that are infringed. Selective enforcement of laws undermines the rule of law, creating perceptions that prosecutions can be directed by the Government or pursued on non-legal grounds.
SINGAPORE CASE LAW
In 2014, the Court of Appeal in Lim Meng Suang upheld the constitutional validity of Section 377A, deeming it to be consistent with the protection accorded in Article 12 (1) of the Constitution that "all persons are equal before the law and entitled to the equal protection of the law".
In other words, laws cannot be discriminatory in their application or enforcement. That said, many laws validly differentiate between different classes of people: for instance, the Accountants Act exclusively yet legitimately regulates public accountants. So, the important question is how to decide whether a law is not merely legitimately differentiating but unduly and unconstitutionally discriminatory.
To this end, the courts employ a "reasonable classification" test: First, the classification prescribed by the law must be based on an intelligible differentiating factor; and second, the differentiating factor must bear a rational relationship to the purpose intended by the law. So, in the case of the Accountants Act, the differentiating factor is that it applies exclusively to registered public accountants, and that factor bears a rational relationship to the intended purpose of the Act, which is to regulate the profession of public accountants.
In Lim Meng Suang, the Court of Appeal decided that Section 377A passed the reasonable classification test. First, the differentiating factor on which it was based was intelligible and easy to understand: Section 377A criminalised only male homosexual sex and nothing else (not even female homosexual sex).
Second, that factor bore a rational relationship to the intent and purpose of Section 377A, which was apparently to criminalise that very conduct. The Court of Appeal also decided that Section 377A should be presumed to be constitutional, unless shown otherwise by the person challenging it.
CONCERNS OVER THE 2014 DECISION
However, the decision in Lim Meng Suang is inherently unsatisfactory and raises a number of concerns.
First, Section 377A is a pre-Independence provision imposed by the British in 1938, principally to bring the criminal laws of what were then the Straits Settlements "into line with English criminal law" in other parts of the colonial empire. But beyond that historical basis, the Court of Appeal conceded that the original purpose of Section 377A was indeed obscure.
The speech of attorney-general C. G. Howell in June 1938, in introducing what ultimately became Section 377A, was found by the Court of Appeal to be "extremely cryptic". The court concluded that "what objective evidence we have on the purpose and object of Section 377A is itself unclear".
In such disquieting circumstances, Section 377A should not and could not have been presumed to be constitutional. Once the court found the objectives of the provision to be opaque, it should have struck down the provision definitively, instead of attempting to give it life by referring to post-legislative material not placed before the colonial legislature.
The presumption of constitutionality should not have applied to such a dubious, stand-alone legal provision introduced willy-nilly across a host of disparate colonies across the British empire. It bears mention that around the same time, i.e. in February 1938, the Singapore naval base, Great Britain's impregnable eastern fortress, was completed. There is material suggesting that Section 377A may therefore have been introduced for a collateral purpose i.e. to maintain discipline within the exclusively male British forces. If the British were genuinely concerned about male debauchery in the context of the local population, then why introduce this to Singapore only in 1938 when a similar provision had already been imposed on Hong Kong in 1885?
Second, given the lack of clarity surrounding the historical intent and purpose of Section 377A, it should not have passed the reasonable classification test.
An archaic Victorian law that punishes only men for private acts can hardly be seen to satisfy the high constitutional standards required for a discriminatory law to be valid. Section 377A seems to have served no useful general social purpose apart from targeting male homosexual conduct.
Third, there is a difference between Section 377A and the Accountants Act. There is no inherent right to be an accountant, and one must actively choose to become an accountant. In sharp contrast, secular societies recognise that a key facet of human dignity is the right to have private, consensual, non-procreative sex between adults.
Some of Singapore's most senior political leaders (including founding prime minister Lee Kuan
Yew) have accepted that homosexuality is an innate genetic trait. From this perspective, it is no different from all other distinctive attributes that each of us is born with. Criminalising private male homosexual sex could by logical extrapolation be the basis for discriminating against other genetic differences as well.
Fourth, Section 377A does not embody a universal value, religious or otherwise. It originated from a Victorian construct of Christianity and is premised on beliefs that are shared only by a limited number of monotheistic religions. Significantly, since 1988, Israel stopped regulating same-sex activity.
From a legal point of view, the assurance given in Parliament that Section 377A although not repealed will not be enforced, is constitutionally unsatisfactory. The Government, or even Parliament for that matter, cannot selectively decide which laws in force to enforce.
Religious views, insofar as these are not universal, are not an ideal lodestar for governance in a secular state. For instance, some religious texts view adultery with the same degree of abhorrence: but why is adultery not criminally proscribed as well? Such conduct is inherently very harmful as it damages families. Ironically, in 2007, Parliament deliberately removed the last remaining law proscribing adultery by abolishing the offence of criminal enticement.
HOW RELIABLE ARE OPINION SURVEYS?
Surveys have been regularly wheeled out to gauge and express public opinion. However, surveys on matters that offend ideological views are often contestable. Considerable care should be exercised before according them weight. Experience and science have shown that the findings of such surveys grossly depend on and vary according to who is asked, what questions are asked, how they are asked and who asks them. There may also be a tendency in such matters for
Some of Singapore's most senior political leaders (including founding prime minister Lee Kuan Yew) have accepted that homosexuality is an innate genetic trait. From this perspective, it is no different from all other distinctive attributes that each of us is born with. Criminalising private male homosexual sex could by logical extrapolation be the basis for discriminating against other genetic differences as well.
participants to try to give the politically correct responses. No simple survey can seek to satisfactorily query or explain why private same sex between females is somehow more acceptable than between males.
THE CURRENT STAND-OFF If it is accepted that sexual orientation is naturally pre-determined, then it is baffling that a significant minority should be criminally stigmatised for behaving naturally, simply because other sections of the community find their behaviour offensive.
A line can certainly be drawn between private "self-regarding" conduct, and public "other-regarding" conduct. Certain laws, such as those designed to prevent self-harm like sado-machoism and necrophilia, can be legitimately paternalistic. Section 377A is not one of them, even if it is not universally accepted that individuals "are born that way".
How will the present stand-off be resolved? The courts have lobbed the problem back to Parliament, which in turn is waiting for a consensus to emerge. If anything, the differences today are significantly more pronounced than they were in 2007. Meanwhile, significant numbers of our citizens harshly continue to be deemed criminals.
ACCEPTANCE AND UNDERSTANDING IN PLACE OF CONDEMNATION
Statements made by bodies opposing the repeal of Section 377A fail to consider the trauma exacted on individuals labelled as a criminal minority. Deep repercussions arise from the public tendency to view all legally tagged criminal conduct as grossly reprehensible.
(Religious views, insofar as these are not universal, are not an ideal lodestar for governance in a secular state. For instance, some religious texts view adultery with the same degree of abhorrence: but why is adultery not criminally proscribed as well?)
To that extent, conceding that such a law will not be enforced is cold comfort to those statutorily condemned. Conflicts within families and ostracisation are not uncommon as some teens grow up to discover that they are "different". International studies have reflected inordinately high suicide rates among LGBTQI youth as a group. A palpable lack of acceptance and support could well be a contributing factor. Although no local statistics have been published on the topic, it would be surprising if the position here should be any different, especially with the added stigma of criminalisation.
A society is to be judged for its fairness by the compassion it shows to its most vulnerable citizens and the measures it takes to reduce their suffering. Yes, Singapore is a conservative society. But it also aspires to be a more equal and inclusive one. It is highly unlikely that a consensus on this topic will ever be reached, especially when significant opposition is fuelled by implacable religious and moral dictates. Ideology can both bind and blind, with condemnation unduly eclipsing compassion. This will have the unfortunate effect of further dividing rather than healing society.
Understandably, there are concerns that repealing Section 377A could be the thin end of the wedge, inexorably moving towards same sex marriage and same sex adoptions. Nonetheless, other conservative Asian societies such as China, Japan, South Korea and now India have shown that a line can in fact be drawn without criminalising such conduct, even while societal mores evolve organically. Concerns about future imponderables do not justify the continued criminal stigmatisation for an innate trait.
Even if one were to insist that such a trait is not innate, it is not the province of either the State or society to regulate such inherently private consensual conduct among adults.
• V. K. Rajah is an international arbitrator and independent legal counsel. He was Attorney-General from 2014 to 2017 and has been a judge on the Supreme Court and Court of Appeal.