OPQs 18 September 2007: Public Lecture by Professor Emeritus Douglas Sanders and UNSW Asia

The first OPQ here was about a public lecture by Professor Emeritus Douglas Sanders that was initially approved by the police, but the permit was subsequently withdrawn. Alex Au's account made it all seem a little farcical, and I wanted to know exactly what had happened.

The second OPQ here was about UNSW Asia. This was filed in the wake of a news story about UNSW Asia's possible insolvency, which could have affected the Singapore government's ability to recover the money that it had loaned and/or disbursed to UNSW Asia. Since detailed facts about what had been going on with UNSW Asia were not forthcoming, I decided to try to find out.

OPQs

PUBLIC LECTURE BY PROFESSOR EMERITUS DOUGLAS SANDERS

(Reasons for cancellation of public entertainment licence)

6. Mr Baey Yam Keng asked the Deputy Prime Minister and Minister for Home Affairs (a) what are the reasons for the change in assessment of the permit for Prof. Emeritus Douglas Sanders' public lecture after the permit was previously approved; and (b) what is the number of similar cancellations of approved permits in the past five years and what are the main reasons for their cancellation.

7. Mr Siew Kum Hong asked the Deputy Prime Minister and Minister for Home Affairs (a) why was a public entertainment licence initially granted for a public lecture on 7th August 2007 by Prof. Emeritus Douglas Sanders; and (b) what circumstances had changed to result in the cancellation of the licence.

The Senior Minister of State for Home Affairs (Assoc. Prof. Ho Peng Kee) (for the Deputy Prime Minister and Minister for Home Affairs): Sir, may I take Question Nos. 6 and 7 together?

Mr Speaker: Yes, please.

Assoc. Prof. Ho Peng Kee: Sir, Police assesses each application for a public entertainment licence (PEL) carefully based on the information available. After approving a licence, Police will continue to monitor developments. There may be circumstances under which Police may re-assess the application and cancel the public entertainment licence, if necessary, for public safety, good order or public interest reasons.

In the case of the public lecture on 7th August, after careful deliberation, Police assessed that the event was contrary to the public interest and cancelled the licence for the event. This was because it became subsequently clear to Police that the event was part of the efforts of gay activists to promote their political agenda which involved a foreigner. Our laws are an expression and reflection of the values of our society and any public discourse in Singapore on such matters should be reserved for Singaporeans. Foreigners will not be allowed to interfere in our domestic political scene, whether in support of the gay cause or against it.

There has been no similar cancellation of a licence granted for talks by foreign speakers in the past five years. This is because Police is usually able to make a decision whether to approve or reject a licence application based on the information available. As I have said earlier, in the case of the public lecture by Prof. Sanders, Police decided to cancel the licence based on additional information which subsequently came to its knowledge.

Mr Michael Palmer (Pasir Ris-Punggol): Mr Speaker, two supplementary questions. The first is, given that the permit or the licence was approved and then cancelled four days before the event, will this affect Singapore's reputation of having a stable operating environment where there are sudden U-turn decisions? The second supplementary question, if foreigners should interfere in local politics and local policies, many foreign experts are engaged by the Government to comment and advise on local policies, are we saying that the Government is permitted to engage foreigners in policy making to the exclusion of initiatives by the civil society?

Assoc. Prof. Ho Peng Kee: Sir, I understand that the event did go ahead. In other words, even though the PEL was cancelled for the event, the condition was that there should be no foreigners speaking in it. But as long as there are no foreigners speaking in it, you will not need a talk which is indoors. In any case, Sir, the information subsequently came to the Police shortly before it withdrew the PEL on 3rd August, which was the full four days before the talk. In other words, Police acted as expeditiously as it could.

On the other question, the context is important. It is not as though that foreigners cannot make their comments or views known on Singapore's policies and laws. In fact, they all do. But it is quite different if in the context of a situation in Singapore where we know that there is an ongoing debate for some time already on a topic which is divisive, a topic which has caused two sides in particular to expound different points of views. From what we know, Prof. Douglas Sanders who is a known advocate for the human rights of the gays and lesbians to take a position - we can hear his views on the air or read it online - it is quite different to invite him here to speak to a Singapore audience at this time.

Mr Siew Kum Hong (Nominated Member): Sir, two supplementary questions. My first question is whether the Minister can clarify what is the nature of the additional information that led to the licence being cancelled. I am asking that because there could be a concern that the Police did not fully deliberate the circumstances of the application before they granted it the first time round. My second question is whether the Police had considered granting the licence subject to conditions. This is because, as I understand it, the application was for a talk on international trends outside Singapore. So the application itself did not cover Singapore at all. If that was the case, would the Police have considered granting the licence subject to the condition that the speaker did not touch on Singapore?

Assoc. Prof. Ho Peng Kee: Sir, the information was made available to Police which was the information online. Essentially, the context of the original application was for a talk, as Mr Siew has said, on a topic which looked innocuous enough, which was "Sexual Orientation in International Law: The Case of Asia". So it appeared to be a lecture highlighting Prof. Sanders' research and comparing the laws of Europe and Asia. But subsequent to that, like I have said, Police came across information available online. We then understood the larger context which was really part of a two-week stretch of events where local activists had organised several other events, such as talks, exhibitions, forums, etc, which promoted the gay cause.

I think the Police have a better understanding of the background of Prof. Sanders, in particular, there was another talk which was also publicised online, an intended talk by Prof. Sanders at another place, which led Police to believe that Prof. Sanders was likely to talk about our section 377A which is the criminalising of homosexual sex. And also, in terms of the background of Prof. Sanders, Police subsequently came to the knowledge that, in fact, he was an advocate for the criminalising of homosexual sex who had spoken, for example, at the United Nations. That is the context. It was not taken lightly. Neither was it a case where Police just approved without careful consideration. Police did approve carefully, based on the information then available.

Mr Speaker: Mr Siew, one last question.

Mr Siew Kum Hong: Sir, I have two supplementary questions. My first question is whether the Police had fully investigated the background of the speaker before they granted the licence the first time around because I am sure that the information was available online when they were considering the first application. The MOS has referred to another talk. I would just like to ask whether the other talk was in Singapore and whether a licence has been granted for the other talk and, if so, when is it.

Assoc. Prof. Ho Peng Kee: The first point is, like I have said, the Police assessed the application according to the information made available to it. So the applicant would have to furnish the information. So, here, the curriculum vitae of Prof. Sanders that was given to Police did not indicate, for example, his involvement in the UN or the fact that the written articles which talked about our local equivalent of section 377A. The other talk was organised by a body and because it was a statutory body under a parent Ministry, it did not require a licence.

UNSW ASIA

(Financial obligations)

10. Mr Siew Kum Hong asked the Minister for Trade and Industry (a) whether the obligations of UNSW Asia are subject to a guarantee by the parent university in Australia; and (b) whether the Economic Development Board, when negotiating an agreement with a university intending to invest in Singapore, takes any measures to ensure that the university fulfills its financial obligations to its academic staff if the venture fails.

The Minister of State for Trade and Industry (Mr S Iswaran) (for the Minister for Trade and Industry): Mr Speaker, Sir, EDB generally does not require parent companies to give any over-arching guarantee on their Singapore operations. For companies who invest in Singapore, it is in their own interest to see that their Singapore operation is successful. Companies also value this operational flexibility. It makes Singapore an attractive place for business. This is also the case for educational institutions. The parent institutions have a strong interest to make sound business decisions about facilities, employees and students. If their Singapore operation fails, the parent institution will suffer significant reputational and financial loss.

The Minister for Trade and Industry has previously informed this House that as UNSW will not be able to meet its commitments to EDB, UNSW is required to return the disbursed loan and grant to EDB. The loan is backed by a bank guarantee. For the grants that had been given to UNSW Asia, EDB is currently in discussions with UNSW on its recovery.

Organisations based in Singapore are bounded by our laws and regulations. EDB does not interfere in the university's decision on employment policies beyond our legal requirements. The employment contract is negotiated and agreed upon by the university and its employees. Employees are encouraged to seek legal advice on their rights and consult with the university directly.

Mr Siew Kum Hong: My first supplementary question is to clarify whether the grants were disbursed to UNSW or UNSW Asia, and who would we be calling that back from because, as I understand it from the press reports, UNSW Asia is very much insolvent, in which case, unless you can get it back from UNSW, the parent university, there is not much chance of getting funds back.

My second question is with respect to the MOS' answer on the EDB not interfering with employment contracts. The number of academic staff at UNSW Asia had uprooted to come to Singapore, and this whole event has left them with a very unpleasant aftertaste when it comes to Singapore. My question to the MOS is whether the EDB and the Ministry accept that the reputation of Singapore is important and that, therefore, it is beneficial to invest some effort into ensuring that the reputation is not affected when things go bad.

Mr Iswaran: Mr Speaker, Sir, as far as the grant is concerned, the legal entity is the UNSW Asia. But as the Member has pointed out, the negotiation is now with the parent, UNSW, and the process is now one of engaging them in a discussion and negotiation to settle the final terms.

As far as the second point is concerned, on the impact on Singapore's reputation, I think in a way this is no different from any other investments we have attracted to Singapore. The implicit presumption in the Member's point is that somehow the employment situation in this particular instance has a wider implication on Singapore. All these institutions that we attract, that EDB courts to come in are usually very reputable and of international standing. They have a vested interest to protect their reputation, and that includes ensuring that they comply with the laws of the land in terms of employment legislation and treating their staff fairly. From public accounts and reports in the media, it would appear that that seems to be the nature of the engagement between the parties concerned.

EDB rightly confines itself to what is really its remit, to ensure that the parties we attract to Singapore comply with our laws and that means all laws, including our labour laws, and then we leave it to the businesses to work it out. Whether they are university professors or engineers and wafer fabrication plants or indeed any other foreign talent or workers coming into Singapore, ultimately, their contracts would bind their obligations.

The great tragedy of Section 377A

That is the title I wish ST had used, for my piece last Friday 26 October. They had asked me to write something for them, on "take-aways" from the entire debate. I agreed to do so, on a few conditions:

- that there be only grammatical/formatting edits to what I submit
- that I have final approval
- that it not become a "me vs her" thing between myself and Thio Li-Ann, and that they convey this to her

ST agreed to the above, and suggested a couple of topics:

"What united nation? In the light of the 377A debate, is consensus possible, and if not what do we do about it"

and

"The lessons on engagement I've learnt from this debate"

I wasn't really interested in spending 800 words to explore either topic, mainly because I did not want it to be a "me vs her" thing. I felt that the media had tried to play up that angle a bit too much. While we disagree (and I guess we disagree very strongly), I have no wish to let it become a personal thing -- the only people to benefit from that would be the media.

So I deliberately chose not to proceed along those lines, as it would invariably have involved criticising or rebutting Thio's speech. I did not want to do that, because to me, our speeches speak, and have to speak, for themselves. There was no need for me to extend it further outside Parliament. As it turns out, many others, such as Janadas Devan and innumerous bloggers, have taken it upon themselves to do so anyway.

In any case, my "take-aways" from the entire experience were not really about all this stuff about "consensus" and "engagement". We (i.e. those who supported repeal) engaged with society and with Parliament, and we did so according to the rules, in a manner that I felt was highly principled and civil.

That was enough for me. That was the mark of democracy at work. We took the high road, and we came through with our heads held high. We didn't succeed in repealing Section 377A, but I think we succeeded in many other aspects. As Alex Au so astutely explains, there is a lot for repeal supporters to celebrate.

So I did not want to play ST's game. Instead, my real "take-aways" were about understanding gay people better, about what Section 377A really meant to so many of them and their families, and about the humbling effect of so many people -- all strangers -- showing so much support for such a difficult cause. How ironic, that my stand purely on principle, without really having been exposed to these aspects directly, had led to this as well.

That's why I wrote this piece the way I did. It was easy to write, because I wrote from the heart. And just like my speech, it speaks for itself. The truth always does.

Straits Times Insight, 26 October 2007

My speech on Monday will probably be the speech of my career. I put my all into it, because I believe passionately in what I said.

That night, my overwhelming emotion was relief that it was over. But the relief was accompanied with sorrow, because it continues for so many others. That is the great tragedy of Section 377A.

I sat in Parliament on Tuesday, listening to the Prime Minister explain why Section 377A would be retained. Even though I continue to believe that Section 377A should be repealed, I am heartened by his speech.

The Prime Minister took pains to acknowledge the contributions of the gay community, their need for private space, and the importance of not making things unnecessarily difficult for them. It was probably as much as anyone could have asked for, short of a repeal.

His speech was fair, balanced and realistic. It will go a long way towards ensuring the debate -- which will inevitably continue -- remains on an even keel, and will hopefully temper the more extreme elements on each side.

The Prime Minister was probably right, when he said that most people were not seized of the issue. Certainly, as Mr Baey Yam Keng pointed out, many people did not really understand what it was about.

That is why it was important to have this debate. The parliamentary petition enabled the pro-repeal perspective to be put forward, for people to consider. The undecided majority can hear both sides, and make up their minds. Indeed, a friend who had previously opposed repeal told me that after reading the speeches, he had changed his mind and would actually sign the petition now.

And the petition allowed the voice of a politically disenfranchised group to be heard. In a democracy, surely that is important.

While homosexuality may not be in the mainstream (and I'm not so sure about that), it is indisputable that the pro-repeal argument is a firmly mainstream, albeit minority, view, not just one held by gays. The broad-based support for the petition demonstrated that.

For engagement to be civil, participants need to respect the common ground rules and the integrity of the process, while agreeing to disagree on the substantive issues. It is a critical part of a secular, democratic society.

Some repeal opponents have told me that they appreciated the distinction between the substance and the process. All this shows that the vast majority of Singaporeans do believe in civil engagement, even on issues of morality where consensus is difficult.

That was in stark contrast to those suggesting that the issue has polarized society. I think that the fault-lines, if any, have always existed. It was more a question of them becoming apparent.

But such statements risk being self-fulfilling prophecies. The more people harp on polarisation, the more likely it becomes. Some journalists have been particularly guilty such attempts to sensationalise the debate.

As we got closer to the Parliamentary sitting, I began declining media requests in that vein. While the media is and should be free to report stories as they deem appropriate, I was nevertheless disappointed at the apparent agenda of certain journalists.

Activists on both sides will continue to advocate their positions. And that is proper, because that is also what democracy is about.

I have been immensely humbled by the past two weeks, both by the tremendous support shown by so many, and by my increased understanding of what gays go through.

I have gay acquaintances, but I do not have gay family members or close friends. I agreed to present the petition out of principle. But as the online open letter garnered more and more signatures, as hateful comments started flying around, I understood so much better the human cost exacted by Section 377A.

I believe that as society as a whole gains greater understanding of and familiarity with gays, its views will shift. And I am glad that the Government's nuanced position allows for this possibility.

Many surveys have consistently shown young persons to be more accepting of homosexuals, and the acceptance level has increased over time. In September, the Straits Times reported that only 30% of youths surveyed felt that homosexuality was wrong.

And Straits Times journalist Tessa Wong wrote about how she was brought up in a conservative background, but realized that homosexuality was not intrinsically wrong after knowing a gay friend better. Such stories give me hope.

It is now time to move on. I have presented the petition, and Parliament has debated and passed the bill. While I disagree with the result, we live in a democracy, and that is how the democratic process works. There are other issues to raise, other goals to advance. The Government has a country to run.

Section 377A will surely resurface at some point. My hope is that all participants will remain civil, and focus on the issue at hand as a secular democracy. That will ensure that even as people disagree on their moral positions, society remains a cohesive whole. And it will demonstrate - again - that there is democracy in Singapore, and it works.

Penal Code speech on YouTube

Update: This post has been updated with a video of me presenting the petition to Parliament (courtesy of Roy Tan), and improved videos of my speech in full (courtesy of Watch TowerV again).

Presentation of petition to Parliament



Speech on Penal Code (Amendment) Bill (Part 1)



Speech on Penal Code (Amendment) Bill (Part 2)



Speech on Penal Code (Amendment) Bill (Part 3)

Speech on the Penal Code (Amendment) Bill: 22 October 2007

By now, my views on this issue have been widely-reported. In particular, a New Paper report last week had carried an interview with extensive quotes from me (it felt really weird buying a newspaper with my face on the cover -- so much so I gave it to the cashier with the back cover facing up!).

So I'm not going to write much commentary around this speech, other than to highlight that apart from Section 377A, I very strongly disagreed with other parts of the bill. The speech below is based on the prepared text and has been (mostly) checked against delivery. I ran out of time, but the part that I skipped basically contained some of the more offensive quotes from http://www.keep377a.com/, which I will not post here.

I will (hopefully later this week) write another post to respond to all the comments posted on this blog, which I have refrained from replying to earlier.

Oh, and the video of my speech will be available on the CNA website for a week.

Speech on the Penal Code (Amendment) Bill

1. Mr Speaker Sir, I rise to speak on the Penal Code (Amendment) Bill, and on the petition I had presented to Parliament earlier. I will first speak on two aspects of the amendment bill not related to Section 377A, and then on Section 377A and the petition.

2. The Penal Code is one of the most important statutes that we have, because the criminal law touches so many people so intimately. This bill represents the first review of the Penal Code in 22 years. It seeks to do a lot, and yet it leaves so much undone.

3. The bill introduces some positive changes. For instance, there is a new offence of sexual grooming. Going by the experience in the UK, this could well become an important weapon in the arsenal against sexual predators, especially those on the Internet.

4. Another important change is the criminalization of child sex tourism, extending to acts performed overseas. Notwithstanding potential issues of enforcement, this will help greatly in closing the door on Singaporeans engaging in such despicable practices.

5. But Sir, some aspects of the amendment bill are not so positive. I will focus on three in my speech.

General increase in maximum imprisonment sentences

6. Firstly, clause 105 of the amendment bill increases the maximum sentences for a number of offences. I echo Ms Sylvia Lim’s comments on this increase, and would add to them.

7. Sir, depriving a person of his or her liberty is a very serious matter. We should not be so hasty in increasing the maximum sentences for so many offences. The general increase in maximum fines is clearly justifiable, even necessary, given that they were last reviewed in 1952.

8. But while money loses its value due to inflation, there is no equivalent concept when it comes to imprisonment. The intrinsic value of a person’s liberty does not diminish over time. If anything, with a higher standard of living and greater economic opportunities today, the opportunity cost of a day in jail is arguably a lot higher now than in the past.

9. In addition, an excessive maximum sentence could well be oppressive towards accused persons in the manner described by Ms Sylvia Lim. This insidious effect is undesirable, unfair and detrimental to the balance of the criminal justice system.

10. MHA should therefore provide adequate justification for each increase in maximum sentence. In its public consultation paper last year, MHA stated that it has “avoided increasing imprisonment terms unnecessarily”. It should disclose the different factors considered for each maximum sentence increased, and why it had concluded that the existing maximum sentence was inadequate. It has not done so.

11. To my mind, it is dangerous to increase the maximum sentences of so many offences, without proper justification. It seems to pay insufficient respect to the fundamental importance of a person’s liberty. In the absence of such justifications, I have no choice but to disagree with this aspect of the amendment bill.

Marital immunity

12. I now turn to the issue of marital rape.

13. The Penal Code has historically provided an absolute defence of marital immunity. A husband is legally incapable of raping his wife. In other words, regardless of whether or not she consents to sex, regardless of whether or not he forces himself upon her, it is simply impossible in law for a husband to rape his wife.

14. The amendment bill proposes to take a “calibrated approach” in limiting this defence. Marital immunity will now not apply where divorce or separation proceedings have been commenced or completed, or where the wife has applied for or obtained an injunction or protection order against the husband.

15. MHA’s stand is that total abolition of marital immunity would be “too radical” and would change “the whole complexion of marriage in our society”, citing “a need to strike a balance between the needs of women who require protection and the general concerns about conjugal rights and the expression of intimacy in a marriage.”

16. Sir, I was flabbergasted when I read that. Perhaps it is because I am young and unmarried, and hold a romantic view of marriage, untarnished by its reality. But surely that is the conception that we should still uphold. The proposed change still sends the message that in most circumstances, a husband cannot be considered to have raped his wife even if he knew that she did not consent. Under this change, the critical issue for rape in a marriage is not consent, but whether the wife has taken certain legal steps.

17. MHA talks about “conjugal rights”, suggesting that a husband has some sort of right to sex from his wife. This seems to be derived from the archaic view that a wife, by marrying the husband, has irrevocably consented to sex with her husband. It is linked to the view that a wife is some sort of property of the husband.

18. Sir, such a view has no place in a modern society, not even in a limited form. A man does not have the right to demand sex from his wife at any time. Sex without consent is rape, whether it takes place within or outside a marriage.

19. To me, it is simple: no means no, and rape is rape. Rape within a marriage is the same as rape outside marriage. In a modern society, marriage is a partnership of equals. We are a modern society. So why are we still retaining this defence, even in a limited form? I cannot fathom that.

20. MHA also cites “the expression of intimacy in a marriage”. Sir, if sex without consent is seen as being a permissible expression of intimacy in a marriage, then I fear for marriages and married people in Singapore. What sort of conception of marriage do we have, if the law recognizes sex without consent as being legitimate? That cannot be right.

21. I can do no better than to quote the response of the Association of Wwomen for Action and Research to last year’s public consultation paper:

“Rape is not sex, it is violence. No wife who has been raped considers the act to be merely sex. It is a form of violence, aimed at violating the victim in one of the most humiliating manners. … To equate sex with rape is to equate a caress with a beating.

[…]

Throughout the eighties and beyond, girls were continually warned in schools to be alert for sexual predators, and given the message that rape was the worst possible violation against a woman. It is truly ironic that these same girls, now adult women, are told that they have to subject themselves to this most humiliating of assaults by none other than their husbands.”

22. The amendment bill effectively penalizes the most vulnerable of wives: those who have no choice but to continue in a marriage, for whatever reason. It says that if a woman has the wherewithal to leave, then we will protect her from rape, but not if she is completely dependent on her husband. That again cannot be right.

23. For all of these reasons, I disagree with the proposed change to Section 375 of the Penal Code. Instead, I urge the Government to repeal marital immunity in its entirety. That is what a modern society needs, that is what fairness requires, and that is what justice demands.

Petition presented on 22 October 2007

24. Sir, I now turn to the petition I presented to this House earlier, which argues that Section 377A would be unconstitutional upon the repeal of Section 377. For ease of convenience, I will refer to Section 377A as “377A”, and Section 377 as “377”.

25. 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 from Article 12(1).

26. A valid derogation from Article 12(1) must satisfy the “rational nexus” test, that is, it must be rationally connected to a legitimate purpose of the statute in question. So we must first consider the purposes of the Penal Code.

27. The preambles of both the Penal Code and the amendment bill are silent on this. So let’s turn to what MHA has said. Its public consultation paper on the draft amendment bill dated 8 November 2006 stated that the review is intended to make the Penal Code “more effective in maintaining a safe and secure society in today’s context”. So, according to the Government, the objective of the Penal Code is to maintain a safe and secure society.

28. But 377A criminalizes consensual sexual acts between men, even if it takes place in the privacy of their own homes. How does the private sexual conduct of consenting adults make Singapore unsafe or less secure?

29. Furthermore, criminal lawyers generally accept that the criminal law should be concerned with two elements, and two elements only: harm and culpability, of which only harm is relevant here.

30. Professor Michael Hor teaches criminal law at the NUS Law Faculty. In a recent article, he explained that criminal activity must entail harm to others that is recognizable and tangible. In other words, if an act does not harm others, then it should not be a crime. This is taught to first-year law students in their first few weeks, and indeed I recall being taught this over ten years ago.

31. Professor Hor went on, and I quote:

“The government has been strangely silent about the harm that 377A is intended to prevent. Indeed consistent statements over a number of years from the highest officials of the land lead any reasonable observer to think that the government no longer believes, if indeed it did before, that the sort of activity contemplated by 377A is harmful at all. If corroboration were required, it lies in the repeated assurances of the government that 377A will not be enforced – apparently because there is no harm to be prevented, no offender to be rehabilitated, no potential offender to be deterred, and no victim to be satisfied.

One might, of course, disagree with the government’s position on the harmfulness of 377A activity, but once that position is taken, how can it be right for 377A activity to remain a crime?”

32. The Law Society, in its submission to MHA on the draft amendment bill, similarly noted:

“… the criminal law’s proper function is to protect others from harm by punishing harmful conduct. Private consensual homosexual conduct between adults does not cause harm recognizable by the criminal law. Thus, regardless of one’s personal view of the morality or otherwise of such conduct, it should not be made a criminal offence.”

33. Private, consensual sexual acts between adult males does not impact on the safety and security of society. Furthermore, it is accepted that the criminal law addresses activities that harm others, but the Government seems to accept that 377A does not cause harm. So how can 377A possibly be linked to a legitimate purpose of the Penal Code? The answer is that it does not, and it cannot.

34. And the Government has effectively admitted this. It does not seek to justify the retention of 377A on grounds of societal safety and security, or of harm to others from the conduct contemplated by 377A. Instead, its reasons for retaining 377A are that the majority of Singaporeans disapprove of homosexuality, and so 377A should be retained to reflect, or “sign-post”, this majority view of Singaporeans. 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.

35. 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.

36. I would even argue that there can be no legitimate aim of the Penal Code with which 377A can be rationally connected, so as to justify its retention. The amendment of 377 permits heterosexual adults to engage in private, consensual oral and anal sex. By definition then, we are saying that there is no harm arising from such private and consensual acts between heterosexual adults.

37. 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.

38. 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.

39. In times past and in other countries, public morality and disgust have been used to justify slavery; discrimination against racial and religious minorities; and discrimination against women, including not permitting them to work or to vote. All of these are now universally recognised as being wrong and immoral. Let us not perpetuate or repeat the mistakes of others in the past.

40. Sir, 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. That is precisely why the constitutional guarantees of equality and equal protection are entrenched as a fundamental liberty in Article 12(1).

41. Even if we accept the “sign-posting” argument, the amendment bill seems to reflect public morality in a selective and discriminatory manner. It is surely undisputed that society views extra-marital sex as immoral. And surely, most Singaporeans disapprove of prostitution, and all types of discrimination, such as age, racial and gender discrimination. But we have not criminalized any of these.

42. Indeed, the amendment bill even repeals Section 498, which makes it an offence for a man to entice, take away or detain a married woman with the intent of having “illicit intercourse” with her. The reason given is that it is an archaic offence which is no longer relevant in today’s context.

43. But public morality in today’s society remains firmly opposed to extra-marital sex. So why do we selectively reflect public morality with respect to private, consensual acts between adult men, but not public morality on adultery? Why are we not “sign-posting” society’s disapproval of adultery by retaining Section 498, without pro-actively enforcing it?

44. The Senior Minister of State has argued that repealing Section 498 is not an endorsement of adultery or extra-marital sex. In the same way, repealing 377A is also not an endorsement of homosexuality. Such inconsistency is discriminatory.

45. And taking the “sign-posting” argument to its logical conclusion, if we repeal Section 498, are we then telling the world that seducing a married woman, hence leading to adultery, is acceptable? By lifting the marital rape defence in limited circumstances, are we endorsing marital rape in the other circumstances?

46. “Sign-posting” is all or nothing. We cannot “sign-post” selectively, with some provisions reflecting public morality and others not; it does not work that way. It is a fundamentally flawed argument that does not stand up to logic or reason or the principles of a democratic society, and so we should shy away from it.

47. Sir, Mr Cheng, a Singapore graduate student in the US, e-mailed this to me:

“Retaining 377A on the basis that the 'conservative' majority is uncomfortable with homosexuality sets a dangerous precedence [sic] for our society.

It suggests that any majority group can now regulate the private activities of a minority group because it is uncomfortable with it or feels threatened by it.

Imagine what this means for the many majority-vs-minority fault-lines within the Singapore society - Chinese vs others, citizens vs non-citizens, heartlanders vs cosmopolitans, a majority religious group vs a minority one.

Breeding the majority group's self-righteousness to demand deference from the minorities will weaken the social cohesion of our society based on mutual respect and tolerance.

The repeal of 377A will make a clear statement on how, in Singapore, we will always have to find ways to live harmoniously with people who are not like us.”

48. Many people have described the repeal of 377A as a “slippery slope”. I think Mr Cheng has identified the true slippery slope that we face today.

49. For all of these reasons, I believe the continued retention of 377A to be unconstitutional. I think the arguments in the petition are valid and correct in law, and so I presented it to Parliament. I humbly ask this House to consider these arguments, and acknowledge their cogency in this debate.

Universality of non-discrimination argument

50. Sir, that was the petition. I will now speak on why I support the repeal of 377A, quite apart from its unconstitutionality.

51. Contrary to how many have sought to frame the issue, 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.

52. 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 issues for all Singaporeans.

53. The response to the petition bore this out. The signatories were a broad and diverse group, showing that the issues cut across all lines and resonate universally with people. Straight and gay, male and female, young, middle-aged and old, civil servants, professionals and students, religious and non-religious – they all signed the petition. They all understood the guiding light of treating others as you want them to treat you. They were united by the common belief that 377A is unfair, unjust and wrong, and hence should be repealed.

54. And such lengths they went to, to convey the strength of their belief. So many, including straight men, went out to collect signatures on their own accord. They did this voluntarily, without being asked. An 18-year-old student collected 70 signatures. Two others collected 150 each.

55. Madam Tan, a 63-year-old mother of two heterosexual sons, collected signatures from her peers. She took it upon herself to do this. She believed that she needed to do it, “for a healthy attitude towards life”. She collected five signatures.

56. Apart from the petition, there was also an online open letter to the Prime Minister calling for a repeal of 377A. This open letter, which collected 8120 signatures, was handed to the Prime Minister’s Office earlier today. A Mr Goh signed it, and he articulated the universality of the issue:

“I must admit that I am somewhat “homophopic”, [sic] but I believe that nobody should be discriminated against [for] his belief, or in this case sexual inclination. If they make me uncomfortable, I just don't mix in their social circle.”

57. I do not know anything about Mr Goh, but I am humbled by his principled stand against discrimination. It is the right and noble path, standing fast to our principles even in the face of personal dislikes. Surely we can all learn from him?

No pro-active enforcement of 377A

58. Sir, the Government has stated that it will not pro-actively enforce 377A. This may be meant as a compromise, but it is unsatisfactory and problematic. The Law Society pointed out that this position was an admission that 377A is “out-of-step with the modern world”, adding that it risked “bringing the law into disrepute”.

59. I also quote Professor Michael Hor:

“The moral force of the criminal law is blunted if there are crimes which are, the government assures the public, never to be enforced, and its “perpetrators” never brought to court and punished.

The criminal laws are the ground rules of our society and if it is to be accorded the respect it deserves, it must be reserved for conduct which the government considers to be clearly harmful to society.”

60. The Senior Minister of State has noted that there have been convictions under 377A, for cases involving abuse of young persons and acts performed in public. And I absolutely agree that such instances should remain criminalised. But 377A as it is currently worded is not limited to those situations, and covers private, consensual acts between adults as well. If the Government intends to criminalise only the abuse of young persons and public acts, then 377A should be amended to do this. But it has not been amended.

61. Furthermore, not pro-actively enforcing 377A does not mean that its retention is without cost. The Government says that it seeks to reflect the moral values of the majority, but what about the human cost to gay persons and their families? What about the cost to Singapore from those who leave Singapore because of this law? What price, this reflection and endorsement of public morality?

62. The majority of Singaporeans seems to speak as if the non-enforcement of 377A means that everything is fine – but the majority would say that. Because they are not the subjects of discrimination, because they are not the minority who has to live under the threat of 377A, a Sword of Damocles that could fall with a change of policy by the government of the day.

63. Sir, let me share with this House, the pain voiced by some signatories of the online open letter.

64. Madam Mak is a 69-year-old mother of a gay 40-something son. He and his partner have lived with her for over 13 years. She called them “the best things” that had happened to her, in her 69 years in Singapore. She wrote:

“Please tell me, Mr. PM, why are you teaching me to be ashamed of them? If this country doesn't want them, where can they go? Please tell me.”

65. Madam K, a civil servant, wrote:

“my son is gay. He came out to me when he was 22. And I was upset and i blamed myself why is my son gay… i blamed myself all the time. But he is my son. He has not changed since the first day i gave birth to him or the person he is today. I love him for who he is, for what he is. It sickens me that people think suggests that just because he is gay, our family isnt what it is. We are a family. what people do in their private lives shouldnt be an issue to anyone as long as it doesnt harm anyone else. He doesnt know i am doing this but I support this repeal. he is my son and he is not a criminal. if i can accept him, his mother who gave birth to him, who these people who so quickly judge him and condemn him?”

66. A doctor, who signed off only as “criminal doctor”, wrote:

“I'm a doctor. People tell me that's a noble profession. My parents are proud of me. My teachers are proud of me. … But I'm ashamed of myself. Why so? Because I'm gay. … It doesn't matter how many lives I save, it doesn't matter how much suffering I relieve, it doesn't matter how much good I do, it doesn't change one shameful fact. I'm a criminal doctor.”

67. Sir, please bear with me as I quote one last person. Mr Choo questioned the consequences of repealing 377A. He questioned whether, if 377A was abolished, those who supported its retention would suffer. He asked if they would be, and I quote:

“… “living in constant hardship, hysteria, agony and pain, distress and shame, fear of marriage breakdown, upset with public safety and order”, simply due to the knowledge that someone else is legally behaving in what they regard as "gross indecency" in some other bedroom?”

68. Mr Choo went on:

“Let us be honest and look where the tears and the wounds really are.

Talk is cheap, anger is free, but pain is costly. And often such truly divisive laws as s377A cost lives.”

69. And then there are those who leave. If we truly believe that every Singaporean counts, and surely we must when people are our only natural resource, then have we counted the cost of all those who have lost? I will cite only one example, to show how heavy the cost to Singapore can be.

70. Mr Alex Liang e-mailed me a few months back. He is a former Singaporean who renounced his citizenship and is now a UK citizen. By all objective measures, Mr Liang is someone who would have served the country very well.

71. We had invested heavily in him. He received a sports award for 3 years running, and was also a humanities scholar. He represented the nation in gymnastics, receiving generous training allowances. He speaks 8 languages, and had excellent academic results.

72. But the moment he completed National Service, he left for Europe and he stayed there. He had long decided to leave Singapore, as he did not see a viable future for himself in Singapore as a gay man.

73. Sir, I ask again: what price, this effort to “sign-post” the views of the majority?

The majority view

74. Even if we want to signal the majority’s disapproval of homosexuality, we do not need to retain 377A. It can be done through other means. Repealing 377A does not mean that society endorses or approves of homosexuality.

75. Let us learn from the example of the Censorship Review Committee. Its 2003 report noted the distinction between “allowing” and “endorsing”, stating that allowing certain content is quite different from, and should not be misinterpreted as, an endorsement. The same reasoning applies here.

76. In any event, this House should be leading and not following. We should lead by example. We should be doing what is right, fair and just, what is constitutional and keeping in spirit with Singapore’s cherished principles of equality and non-discrimination. We pride ourselves on doing the unpopular but right thing, so why are we abdicating our responsibilities now?

77. Sir, I get a little emotional when I hear the “sign-posting” argument. That is because it claims to sign-post values held by this House and by Singaporeans. It purports to proclaim the values that I, as a Member of this House and as a Singaporean, believe in and want to proclaim.

78. But what are these values? What is this majority view, what does the majority whose values we want to “sign-post” think and say?

79. For that, I turned to the keep377a.com website. It was set up to solicit signatures for an online open letter in support of 377A. Let me just read some of the messages that have been posted on this website...

[Deputy Speaker interrupted to inform me that I had 3 minutes left]

Do the right thing

80. Yes, Sir. Instead of reading the comments, I will just talk about what I feel this House should do.

81. I ask this House to “sign-post” the values of fairness, justice, non-discrimination, openness and inclusiveness, which are values fundamental to a secular democracy. I ask this House to endorse the view that our people should feel free to express diverse views, pursue unconventional ideas, or simply be different, that ours must be an open and inclusive Singapore, and that we should build a nation where every citizen has a place, where all can live in dignity and harmony. And if those words sound familiar, that is because those were the very words of the Prime Minister in his swearing-in speech in August 2004.

82. These are the right things to do. Some have said that Singapore is not ready, that this is not the right time to repeal 377A.

83. I disagree. I say that there is no wrong time to do the right thing. Now is the time, not to do the pragmatic or practical thing, but to do the right thing.

84. Now is the time, to turn our backs on prejudice, discrimination, intolerance and hatred.

85. Now is the time, for this House, which represents all Singaporeans, to lead by example.

86. Now is the time, to uphold the noble ideals of our founding fathers, ideals upon which our country was founded and which hold our society together. The ideals of a democratic society, based on justice and equality. The ideal of all persons being equal before the law, and all persons having the equal protection of the law.

87. Now is the time, to do the right thing and repeal 377A.

88. Sir, with that, and for all the reasons I have stated in my speech, namely the increase of so many maximum sentences without justification, the retention of the marital rape defence albeit in a limited form, and the failure to repeal 377A, I oppose the Penal Code (Amendment) Bill.

Statement on Petition: 22 October 2007

This is my statement in presenting the petition on Section 377A to Parliament earlier today. And when I said I was going to hand it to the Clerk, well, I literally walked over to hand it over to the Clerk of Parliament.

After I made this statement, the Leader of the House, Mr Mah Bow Tan, moved to suspend the operation of Standing Order 18(3). That allowed the petition to be debated in the course of the debate on the Penal Code (Amendment) Bill. If not, it would have been referred to the Public Petitions Committee for a report, pending which no debate would have been allowed.

Mr Mah had previously discussed this with me, and I had agreed to the motion. It was simply the most sensible way of approaching it. The petitioners had also earlier indicated their agreement to this.

Statement on Petition

Mr Speaker Sir, I present to Parliament a petition under Standing Order 18. The Clerk has endorsed this petition as being in accordance with the rules of Standing Order 18(5).

This petition is presented on behalf of Mr George Bonaventure Hwang Chor Chee, Dr Stuart Koe Chi Yeow, Ms Tan Joo Hymn, and others of like opinion.

Including the three petitioners that I have named, there are a total of two thousand, three hundred and forty-one valid signatories.

Sir, the material allegations contained in the petition concern the unconstitutionality of Section 377A of the Penal Code. If and when the Penal Code (Amendment) Bill is passed, private consensual anal and oral sex between heterosexual adults will be permitted, but the same private and consensual acts between men will remain criminalized, due to the retention of Section 377A.

The petitioners argue that this is an unconstitutional derogation from the constitutional guarantee of equality and equal protection of the law, as set out in Article 12(1) of the Constitution. The petitioners ask this House to repeal Section 377A in light of this.

The petitioners pray, and I quote:

“By this Petition, the Undersigned pray that Section 377A of the Penal Code (Cap. 224) be repealed.”

I will now hand the petition to the Clerk.

it's not just a gay thing. it's about equality.

NMP to present petition to repeal anti-gay law to Parliament

This article is available (for now anyway) for free on ST online. It's one of the things that I've been really busy with recently.

I'm not going to say much about this. The petition is not about me. It is about the public, the people -- straight, gay, whatever -- who believe that Section 377A is wrong and should be repealed, and are willing to put their names down in writing to stand behind it. It is about helping people have their voice in Parliament. It is about recognising the petitioners, who are working so hard to make this happen.

So if you agree with this view, please go to Repeal377A.com and do your bit. If you disagree, that's OK and thanks for reading this post.

PS. This will be the second time that a petition will be presented to Parliament. The first was in 1985, when JBJ presented a petition by Sivadas s/o Sankaran, about the applicability of Parliamentary privileges to submissions to a Select Committee of Parliament.

Singapore, Repeal377A NOW!

Why I Speak Up

While I was away two weeks ago, I wrote something for TODAY. Although it was previously greenlighted, it seems that this will not be published. I've drawn my own conclusions in light of recent events (more details available at Yawning Bread). So I'm publishing it here. The letter referred to, together with the article I was responding to, have been archived at Yawning Bread.

I've also noticed that I tend to write (or at least, want to write) more and have more ideas whenever I travel out of Singapore. I'm not completely sure why.

Why I Speak Up

Two Sundays ago, I was a panelist at a forum entitled “Peculiar Legislation: 377A – Symbol or Statute?” It was organized by theatre company W!ld Rice, in conjunction with their gay play Happy Endings: Asian Boys Vol. 3.

I watched the play a few days later, and was intrigued by the Sylvia character. She was a straight woman who was dumped by her first boyfriend (who turned out to be gay) and grew up to be a tough-as-nails gay activist. I wondered about the motivations behind this character.

At the forum, I spoke out against Section 377A of the Penal Code, the provision that criminalizes private, consensual sex between adult homosexual men. It wasn’t the first time, and as on prior occasions, inevitably people asked if I am gay.

Many in Singapore seem to believe that all, or at least most, of those who oppose Section 377A are gay. I don’t understand that. Why do we automatically assume that only those who suffer under this law will criticize it? Are we really so averse to fighting on behalf of others, especially those who are different from us?

I am not poor, but I write and speak about helping the low-income. I am not a woman, but I will speak up against the proposal to allow husbands to continue raping their wives except in limited circumstances. Similarly, I am not gay, but I will write and speak against Section 377A.

I do it because of an innate sense of injustice. I really do it for myself, not for gays. If I have the opportunity to articulate my views but do not, then I would have let myself down.

It’s just like how white Americans were involved in the civil rights movement in the 1950s and 1960s, and how, as the recent film Amazing Grace showed, a white Englishman led the fight to abolish slavery in the 18th Century. If one observes or encounters unfairness, should one not speak up against it, regardless of whether one is personally affected?

This is not an article to argue for the repeal of Section 377A. Much has been written each way, and I have expressed my detailed views elsewhere. Instead, I wish to see more Singaporeans to speak up and take action against wrongs that they see. Indeed, if a reader strongly feels that homosexuality should be criminal, then he or she should certainly express their views.

But by the same token, those who disagree with Section 377A should also speak up. They owe it to themselves, as self-respecting, thinking citizens, to make their views known. This is especially so if their view, like mine, is that Section 377A is fundamentally wrong and unfair, in criminalizing private consensual acts between adults that does not objectively harm anyone else.

That’s because the debate is then ultimately about Singapore society’s approach to human rights and civil liberties. Isn’t that important enough to galvanise one into action? And isn’t it especially crucial for straight persons to speak up in this debate, given how the continued existence of Section 377A stigmatizes homosexuality and makes it difficult for gays to publicly defend themselves?

In a way, I am coming full circle with this article. I owe my appointment as a Nominated Member of Parliament to my writing for this newspaper, and I started writing this paper only because of a letter I wrote in 2003 responding to an article in a local newspaper on this issue. TODAY’s then-editor read it, and invited me to write for TODAY.

I had circulated the letter widely over two days, asking fellow straight persons to sign the letter. It was never published despite having 32 signatories. But I’ll end with some words from it that, to me, still ring very true today.

"Very few people are willing to publicly adopt a stance that may be interpreted as being pro-gay. The fear is that you will be seen as being gay, because only gays will speak out in support of the rights of gay people.

"All the signatories to this letter are straight. ...

"We urge all gays in Singapore to take heart from our letter, to know that there are a lot more people out there who support their personal rights and freedoms, than is apparent from an examination of the views espoused in the mass media.

"We also urge other straight persons to take any and every opportunity they may have to voice their own opinions, to prevent a misleading picture of public opinion from being painted."

Indignation 2007 and some unrelated thoughts

Indignation, Singapore's GLBT pride season, will take place from 1 to 15 August 2007. The opening reception is on 1 August 2007 and all are welcome. Details can be found at the link above. (Alex Au very kindly sent an invitation to me for the reception -- I do want to go and initially accepted, but then realised that I was already going for The Cure that night.)

Meanwhile, I'm currently in California for work. I recently changed jobs, and my new company sent me here for training this week. It's my first time on the West Coast and it's been great -- even based on the past few days, I can sort of understand why so many people like to live in California. I met a Singaporean who recently moved here with her ABC husband, and she was talking about some other Singaporeans who've moved here and won't go back.

I can kind of understand why. SF is lovely, very liveable -- it's like Melbourne to New York's Sydney. There is also a strong sense of tolerance permeating this very diverse city -- a lot of minorities (particularly Asians), and it's normal to see gay men around, behaving just like the normal folks they really are. And as I drove down the freeways from San Francisco to my company's campus every day, the sense of space and freedom is just so enthralling and liberating.

This is the kind of place that Singapore has to compete with. And it's going to be a pretty tough fight.

Fridae coverage on THAT forum

Here is Fridae's report on the forum on Sunday. There was also a Talkback segment this morning on 938Live about the decriminalisation of homosexuality, where I gave a quote, but the podcast hasn't gone up yet.

Forum on Section 377A

I was invited to be a panellist at a forum titled "Peculiar Legislation: 377(A) – Symbol or Statute?", organised by local theatre company W!ld Rice on Sunday. There was a fair bit of news coverage on it -- I have reproduced the TODAY article (front page, no less) below, and CNA and The Straits Times also ran stories. I understand that the forum was also covered on TV news on Sunday, although I didn't catch that since I was at a wedding dinner.

I think I probably said some things at the forum that may not have gone down well with much of the audience, and certainly not with the gay panellists. And that was my view that an argument based on civil liberties will not bring about change, and that an economic argument may be the only effective way of convincing the Government to repeal Section 377A. So I think it's important to clarify and amplify.

Firstly, during the discussion, I made it a point to emphasise that I agreed with the points on civil liberties made by the other panellists, in particular Alex Au. I have made similar points on civil liberties before, on this blog, on radio and elsewhere. In fact, that is fundamentally why I am opposed to Section 377A.


However, given that the entire audience indicated -- in response to the moderator's question -- that they believed Section 377A should be repealed, I thought that was pretty much a given, and didn't need to be repeated. The civil liberties argument is just the fundamental principle underpinning this entire issue.

But that's the principle. What about the tactics to achieve the goal of repealing Section 377A? How do we get there from here?

If I recall right, someone in the audience asked what can be done, and I responded by raising the economic argument. The TODAY article does a pretty good job of stating it. I truly do believe that a strong economic argument is the only way to get the Government to move on Section 377A in the near-future, and that an argument based purely on civil liberties will get us nowhere. After all, has it gotten us anywhere so far?

That seemed to offend Alex Au and Stuart Koe. And I understand why. Who would want to win by being demeaned, by being reduced to a digit? Sometimes the costs of a victory can outweigh the benefits.

But I wasn't there to parrot the same crowd-pleasing lines about freedom and rights and civil liberties. Like I said, I felt that was a given. And I wanted to make an observation about the political realities in Singapore, about what would work and what wouldn't. So I did.

I believe that to win the argument, one has to make a convincing economic argument. It will probably also be necessary to debunk the idea that the majority of Singaporeans want private, consensual gay sex to be criminalised, which is where I suggested the need for a survey to assess the true views of Singaporeans. I certainly at no point advocated rule by referendum, as may have been suggested. But if the Government insists that the majority of Singaporeans believe that private, consensual gay sex should be criminalised (and I am not aware of any statistically valid survey to that effect -- the TODAY survey suffered from certain flaws), then it is incumbent on the Government to prove that this is in fact the case.

In any case, sticking to a pure civil liberties argument will not lead to change. That is a cynical view of the state of affairs in Singapore, but I think it is sadly true. If the gay community understands the implications of , but decides to persist with that course because it is the right thing to do, then more power to them. That is entirely their prerogative, and the principled stand is to be respected. But they should understand that realistically, Section 377A will continue to stay with us for quite a long time more if that is to be the case.

I do believe that I will see it being repealed in my lifetime. But I am young, and probably have 40-50 years to go. I think that in the absence of the economic argument, I will see that happening later in my life rather than sooner.

Having said all that, I've been reflecting on this over the past couple of days. And I've decided that if/when the Penal Code amendments are tabled, and Section 377A is not to be repealed (as I believe will be the case), then I will not make an economic argument. This is out of respect for the sensibilities of the gay community. In any case, by that stage, the die would have been cast anyway.

On Section 377A ...

Forum on gay law well-attended, but change unlikely: MPs

Monday • July 16, 2007

Nazry Bahrawi

THE room was packed, the panellists were passionate and the questions came fast and furious.

This was the mood yesterday as over 200 people gathered to discuss a hot issue — should homosexuality remain outlawed here?

Leading the discussion, organised by local theatre company W!ld Rice at the National Library, were an eclectic mix of five individuals: MP (Tanjong Pagar GRC) Baey Yam Keng; Nominated MP Siew Kum Hong; gay activist Alex Au; CEO of gay community website Fridae.com, Dr Stuart Koe; and Reverend Dr Yap Kim Hao, a former Methodist bishop who serves on the Inter-Religious Organisation (IRO) council.

Although Section 377A, which criminalises homosexual acts, may come up for debate in Parliament as part of the Penal Code changes, for two panellists at least, the prospect that it would be repealed any time soon seems highly unlikely.

Said Mr Baey: "Personally, I think the whip should be lifted for a very open debate and open expression of opinion by the MPs. And if that was so, I would vote for a repeal of the act. From my understanding of my parliamentary colleagues, my guess is that I will be in the minority."

However, Mr Siew told the audience — most of whom indicated during the forum that they wanted Section 377A repealed — that the battle was not to convince the naysayers, but those who are undecided about whether homosexuality should be decriminalised.

The NMP said change would only be possible "once you get that mass, enough people in the middle, to agree with you", but added: "I don't think we're at that point."

Mr Siew cited a heartland survey published in May by Today, in which 62.3 per cent of 300 respondents disagreed that homosexuality should be legal. "That shows that a clear majority are saying that homosexuality of people is not acceptable to them."

But even if more people were to support decriminalisation, that may not be enough.

Said Mr Baey: "From what I understand about how the Government works, I don't think the Government will be making a decision based on a survey ... The Government will want to make its own stand and position on issues like this, and for this it requires a mindset shift."

And to change mindsets, "you've got to frame it in a lingo that will convince the Government", Mr Siew suggested.

"And what's that lingo? I think we all know. It's all about growth, jobs, money. If you can make a convincing case that 377A is somehow affecting that, I think you've got a really good chance."

He acknowledged that changing the laws on homosexuality would put Malay/Muslim MPs in a difficult position with their community.

But it is not just the Muslims who feel strongly about the issue.

Reverend Dr Yap said that within the Christian faith in Singapore there was a "minority which is vocal" which strongly opposes any move to repeal the Act.

Mr Au, however, argued that the debate on Section 377A was not one of religion, but civil rights.

In response, Mr Siew pointed out: "Pitching your arguments in terms of civil rights ... will not take it very far."

His suggestion of linking the decriminalisation of homosexual acts to economic benefits drew a range of responses from the audience — as well as other panellists, including Mr Koe, who said he would feel insulted if the decision were to depend on dollars and cents.

Whatever their stand, almost everyone present agreed that such a forum would not have been possible five years ago — a sign that Singapore is now a lot more open to different points of view.

Copyright MediaCorp Press Ltd. All rights reserved.

Opinion on 938 Live available online

In an earlier post, I mentioned a radio interview I did, about competitiveness in Singapore. The interview touched on a few areas, including the existing criminalisation of homosexuality.

The interview is now available online on the RSI website, complete with an unflattering pic of me in hunching. The sad reality is that I do have pretty bad posture.

PMO response on Singapore Day, and Straits Times interview on homosexuality on 11 May 2007

I was out of town for much of this week, and was ill over the weekend (unfortunately, still am). So I've not been blogging or replying e-mails.

Regarding Singapore Day, there was a response by the Overseas Singapore Unit of the Prime Minister's Office in TODAY on 9 May 2007. There was a line in there which said:

"Mr Siew's commentary is built around his mistaken premise that Singapore Day was organised to woo overseas Singaporeans back."

Someone has e-mailed PMO to point that my piece included this line:

"I prefer to take the Government at face value and think that the event served to refresh connections with overseas Singaporeans, to remind and update them about Singapore."

PMO has still not responded to that e-mail. I am keenly curious as to what they will respond with.

And I'd like to thank all of you who have posted or e-mailed supportive comments on the Yvonne Lee and homosexuality issue. The Straits Times ran a piece on Friday, basically a Q&A with 3 lawyers: Ms Indranee Rajah, Mr Lim Biow Chuan, and myself. I have reproduced below the published Q&A with me (yes, they asked me to look at the final edited version, so a big-up to the journalist for that!).

MR SIEW KUM HONG, 32, senior counsel for CA, an IT management software company. He is single and has been a Nominated Member of Parliament since January.

Your response to MM Lee’s comments?

My first thought was that his view was premised on pragmatism, not principle. It might result in what I believe to be the right conclusion (ie. decriminalisation of gay sex), but I do not agree with the reasoning process. In the end, it rests entirely on homosexuality being genetic but if there is subsequently any evidence that homosexuality is not genetic, then does it mean we should change positions again?

My own belief is that homosexual sex should be decriminalised regardless of whether homosexuality is genetic. It is fundamental to respecting people’s dignity and their freedom to lead their private lives as they decide to the extent it does not harm others, regardless of why they would want to lead their lives that way.

What do you think of the current situation, where homosexual sex is banned but is not proactively enforced?

Having a provision on the books that the Government has explicitly stated it will not proactively enforce, risks bringing the law into disrepute. And here’s another question – what if a homosexual is jilted and makes a complaint against his former partner? Should the police take enforcement action then? But should enforcement be based solely on whether a complaint is made? If so, is that a rational and justifiable basis for deciding whether to enforce?

On what basis should laws be made? Should they reflect values and morality? What about pragmatism?

I do not think that laws should reflect values and morality per se. Instead, I believe that laws should deter and prevent harm to people. And if that coincides with morality, then great.

But they are conceptually separate and distinct concepts, and we need to bear that in mind. There is a great danger when laws are used to enforce values and morality, because they do change. Women previously could not vote, and this was enforced by law. Obviously, values and morality have changed since those times, and I think rightly so.They are also not universal, and so could potentially oppress those who do not share such values and morality.

How do we advance the debate on decriminalising homosexual sex, beyond the fixed standpoints that have been presented?

I’m not sure if you can. The starting points are so fundamentally different that they are essentially arguing at cross-purposes. How do you convince, through argument, a Christian who is convinced that homosexuality is evil and immoral, a sin that needs to be outlawed? I don’t think you can.

But policy and law-makers have a different responsibility. I would hope and expect policy- and law-makers to acknowledge that their own values and moral beliefs are personal to them, and that policy- and law-making requires them to adopt more objective approaches.

Some will and have argued that the approach embodied in the Wolfenden Report (a 1960s document that sets the basis for the decriminalisation of homosexual sex in the United Kingdom) itself represents a value statement about the importance of personal liberty. But I would argue that that is a universal value, and is irrelevant.

The question is the extent to which personal liberty should be limited by the law, and so it falls on those who argue for criminalising homosexuality to demonstrate convincingly that private consensual homosexual sex results in external harm that merits it being criminalised.

There has always been a sense that societal norms here should evolve at the pace of the most conservative members of society. Do you agree? What sort of pace should society proceed at in terms of discussing this issue?

Actually, that’s not the case. I think Prime Minister Lee Hsien Loong has previously stated that we should not move at the fastest (most liberal) or the slowest (most conservative), but with the mass in the middle. So far, the Government has identified the mass in the middle to be against the decriminalisation of homosexual sex.

But should that be the sole consideration? Surely the moral sensibilities of the mass in the middle should be balanced against the implications of the continued criminalisation of homosexual sex: the intolerant message sent by society, the lack of dignity or respect shown to a segment of our society (estimated at maybe 4 to 6 per cent), the inexorable exodus of homosexual Singaporeans overseas never to return, and the unquantifiable number of foreign talent who are homosexual and so simply decline to come to work in Singapore.

Law-making is a balancing act, to balance the different interests at play. I am not convinced that the continued criminalisation of homosexual sex strikes a balance that is most beneficial to Singapore and Singaporeans.

Response from Asst Prof Yvonne Lee

I posted a response to a Straits Times commentary arguing against the decriminalisation of homosexual sex. This afternoon, I received a letter from the writer, essentially making the following points:

• her article is to highlight issues relevant to the debate over Section 377A;
• the cogency of her arguments stand independent of the personal views of the reader; and
• the Government will "address and resolve" all legal and policy issues "in due course", presumably in the context of the upcoming Penal Code amendments.

She finished off by stating:

"Kindly refrain from making personal or professional statements against me. It is both unprofessional and unbecoming."

I would have reproduced the full letter on this blog, except that I have not received any response from the writer to my request for her consent to post it here. (The letter is technically copyrighted work belonging to her and reproduction here may or may not constitute a fair dealing of the copyright work, so I just decided to avoid that altogether.)

My response:

"Asst Prof Lee,

I stand by my posting. I believe it is justified and/or fair comment. I suppose we disagree on that.

On a related note, would you consent to the letter being published on my blog?"

As I said, I've not received any response. I'll leave it to my readers to judge for themselves the cogency of her arguments, and whether my statements are justified/fair independent of my personal views.

Opinion on 938 Live, and ill-reasoned commentary

I did a radio interview yesterday morning, for the Opinion programme on 938 Live. It was "live", from 9 to 10am. The focus was on how Singapore can maintain its competitiveness, with specific talking points on MM's recent comments about homosexuality and censorship (I am forced to link to Yawning Bread because that seems to contain the most complete reproduction of MM's comments on censorship -- albeit with Alex Au's editorialising -- currently available for free online).

The show was quite fun to do. The other two panellists -- Dr Kirpal Singh of SMU and Mr Phillip Overmyer of the SICC -- were smart and funny. There is no podcast as yet -- the producer has promised to let me know if/when a podcast is published, or to send me an MP3 if there will be no podcast. There will however be a repeat tomorrow (Sunday) at 11am on 938 Live.

I have to thank the various kind people who responded to my request for assistance to prepare for this interview. I had asked for information on Singaporeans' attitudes towards homosexuality, and received quite a bit of very helpful information. In particular, I must thank Alex Au and George Hwang.

In the end, because of the overall theme, the direction taken during the discussion and time constraints, I didn't manage to use a lot of it. Nevertheless, I know it will be helpful when I prepare for the debate on the proposed Penal Code amendments. (Indeed, I have relied quite a bit on this information in what I write below.)

*

And that actually takes me to yesterday's commentary in The Straits Times arguing against the decriminalisation of gay sex. My personal belief is that regardless of whether homosexuality/lesbianism/bisexuality/transsexuality is nature or nurture, GLBTs should be left to their personal choices and their own devices, so long as their actions do not result in external harm.

And that is really my own philosophy on how the law should regulate personal behaviour -- everyone should be allowed to do whatever they want, so long as there is no external harm. So I disagree with those who argue that gay sex should remain a criminal offence.

But I can appreciate a well-reasoned argument even if I disagree with the premise and conclusion, and I can dislike a poorly-reasoned one even if the premise and conclusion are consistent with my own beliefs. I was literally offended that The Straits Times saw fit to give this piece precious commentary space, because it had to be one of the most poorly-written articles to ever be printed.

The argument started off talking about the prohibition against discrimination in the Constitution. The writer explained the legal operation of this prohibition, and stated that laws that discriminate between classes of people are constitutionally valid if: (a) the classification had a rational basis, and (b) the law had to serve a legitimate purpose which is reasonably related to the basis for the classification. The writer also added that each differentiating legal measure served a social objective, and that Parliament was permitted to pass laws that promote the public good over the rights of individuals or goods.

I didn't have a problem with this so far. But after laying out the legal groundwork, the writer went off on a completely different tangent. Instead of showing how Section 377A of the Penal Code (which criminalises gay sex) satisfied that two-pronged test, she merely asserts:

"Any argument to decriminalise homosexual sex must consider the harmful social consequences. For example, would affirming homosexual sexual practices serve the common good? It is a known medical fact that homosexual intercourse or sodomy is an inherently unhealthy act that carries higher risks of a number of sexually transmitted infections. The law should not facilitate acts which threaten public health."

There was no attempt at explaining why the classification of homosexuals as a class to be regulated is rational, or why it is rational to criminalise gay sex but not lesbian sex. There was no statement as to what the public good was in relation to the criminalisation of consensual private sexual acts, albeit between men.

The only attempt at explaining the legitimate purpose to be served was the reference to the "known medical fact" about the alleged higher risks of STDs in homosexual intercourse. To be polite, it is counter-intuitive and unconvincing, to say the least, to assert that male-male anal sex is inherently more likely to transmit STDs than male-female anal sex, the decriminalisation of which the writer apparently does not disagree with. There was also no clarification as to whether this asserted medical fact relates to protected or unprotected sex.

The conclusion in that paragraph, that the law should not facilitate acts which threaten public health, also does not make sense. Firstly, it pre-supposes that repeal of Section 377A will somehow make it easier for gays to have sex (since that is what facilitate means). But the Government itself has repeatedly and openly stated that it will not proactively enforce Section 377A. Let's not delude ourselves, gay men are having gay sex. That is going to continue happening regardless of whether Section 377A is in place.

The debate over Section 377A is not about what gay men are doing or are not doing. It is really about the message that society should send to homosexuals, and some may argue other disenfranchised minorities in society as well. The Government itself, in its proposal to preserve Section 377A, admits as much. So that conclusion is (whether deliberately or otherwise) misleading in its suggestion that the repeal of Section 377A will somehow make it easier for gays to have sex, which naturally also suggests that there will be more gay sex.

Secondly, even if, for argument's sake, we accept that gay sex is indeed a public health risk, there is no attempt to explain why we should specifically criminalise this public health risk but not others. Why not criminalise unprotected sex with unlicensed prostitutes in Singapore, or with prostitutes overseas? What about other non-sexual risks that do affect other people, such as smoking?

My recollection is that the numerical majority of HIV/AIDS sufferers in Singapore were infected through unprotected sex overseas, presumably with prostitutes, as opposed to homosexuals. So if we are willing to criminalise overseas child sex (which addresses the extraterritorial issue), then why not overseas unprotected sex with prostitutes?

Either the writer took all of her leaps of logic as granted and self-evident (which speaks volumes about the unstated assumptions in her mind), or perhaps there is really no convincing manner in which one can successfully apply the two-pronged test of constitutionality to Section 377A and so she conveniently ignored all of it and sought to pass off mere assertions as reasoned arguments.

She concluded the first part of the piece by arguing that:

"any reform to the Penal Code must preserve fundamental values which serve the public good, instead of abstract notions of equality or fashion."

Now, in the first place, to me, equality is actually a fundamental value that serves the public good. It must be, and that is why it is enshrined in the Constitution.

Furthermore, there are other fundamental values serving the public good, that are adversely affected by Section 377A. The Law Society has rightly pointed out that continuing to keep a law on the books, that the Government has openly stated it will not proactively enforce, brings the law into disrepute. And inclusiveness is a word that is bandied about a lot, and Section 377A is a classic case of how society is deliberately, loudly and very conspicuously excluding a segment of society.

The writer seems to perceive the criminalisation of homosexual sex to be fundamentally in the public interest. It would have been helpful if there was even an iota of explanation as to why.

*

In the second part of her article, the writer then went on to talk about recent developments in foreign jurisdictions, about decriminalisation of gay sex as the first step in a "broader homosexual rights agenda to transform social morality". And here is where she betrays her real agenda.

This article is not about the legality or justifiability of homosexual sex per se. It is actually a Trojan horse that uses the debate over Section 377A as a vehicle to argue homosexuality per se.

I do not propose to rebut the writer's point-by-point construction of the alleged homosexual agenda one by one. I will only say that in my view, it makes sense only if one accepts and believes that homosexuality is inherently wrong and should be outlawed, and homosexuals should be excluded, disenfranchised and discriminated against.

I don't agree with that. But that is her premise, and she is entitled to her beliefs. Even though I disagree with it, I must say that, on the whole, the arguments in this part are much better-constructed than in the preceding section.

Having said that, logical rigour would seem to demand that the writer explain why, if homosexuality itself is so against the public interest, we should criminalise only homosexual sex and not other aspects of homosexuality. We all know of gay bars and clubs in Singapore, and even Mardi Gras events with prominent homosexual involvement. So why criminalise only the sexual expression of homosexuality?

Furthermore, I am sure that there are many other agendas that some or many people would believe to be contrary to the public good. So should we also criminalise acts related to such agendas? The writer does not explain what is so abhorrent or offensive about homosexuality that compels us to criminalise gay sex.

In any event, once she finishes her description of the alleged homosexual agenda, the writer lapses back into assertion-as-reasoning. She writes:

"The argument that decriminalising homosexual sex will not cause a change in moral attitudes is erroneous. It has been suggested that even after adultery was decriminalised, it remained morally reprehensible. So too, decriminalising homosexual sex will not cause a shift in moral attitudes."

The fact is that moral attitudes are probably already shifting. A Singapore Polytechnic study earlier this year shows that a large proportion of young people (half, if it is to be believed) nowadays accept homosexuality. A NTU study to be published soon found a correlation between youth and acceptance of homosexuality. Alex Au's analysis (which I agree with) suggests a dramatic trend towards acceptance within a relatively short period.

So whether or not Section 377A is repealed, the times they are a'changin', to quote Bob Dylan. So it is misleading to attribute any change in moral attitudes to the repeal of Section 377A.

Furthermore, this argument pre-supposes that moral attitudes, and in particular moral attitudes towards homosexuality, are fixed and always correct. That must be the underlying assumption, otherwise why should it be a problem for moral attitudes towards homosexuality to change? (In the interests of full disclosure and transparency, I admit that I am, for the most part, a moral relativist.)

But once upon a time, people held the view that it was immoral for women to work. Those views have since changed. I will leave it to you to decide if that was for better or worse.

She went on to state:

"While the law embodies a moral judgment, it is not always prudent for the law to punish all immoral behaviour. However, to draw an analogy between adulterers and homosexuals is fallacious. Adulterers do not seek societal approval, but certain homosexual activists campaign to alter the public mindset and to gain legal and social endorsement of the gay lifestyle."

I am not sure why any such campaign (if there is indeed such a campaign in Singapore) is relevant to the question of whether to criminalise Section 377A, which is what the commentary purports to be about. It is also not clear why the analogy between adulterous and homosexuals is fallacious simply because (assuming this to be true for argument's sake) homosexuals publicly attempt to advance their agenda. This seems to me be a red herring.

In the next paragraph, the writer commits perhaps her worst error:

"The fact is, under the proposed Penal Code reform, homosexuals wishing to lead private lives may do so, provided they do not foist their homosexual acts on the public."

This is the worst error because it is a factual error. Section 377A explicitly does not differentiate between public and private acts. The Government does not propose to change Section 377A. The Government itself acknowledges that the law will technically continue to apply to gay sex in private.

What the writer seems to be alluding to is the Government's declaration that it will not proactively enforce Section 377A. But that is not the point. The fact is that homosexuals leading their lives, whether or not they have gay sex in public or in private, are technically breaking the law. So either the writer was mistaken, or she was deliberately misleading the reader. I am not sure which bothers me more, given that the writer is a law professor in NUS.

The writer's next statement is:

"S377A is a legitimate statement of the values of our society. In constitutional terms, equality claims operate within a broader social context."

But this merely asserts the constitutionality of Section 377A, nevermind that her discussion on that issue was full of assertions and lacking in reasoning. Saying it often enough does not make it right or logical.

The writer concludes by stating:

"Homosexuality is offensive to the majority of citizens. Allowing an aggressive homosexual rights agenda to dictate law reform ignores the nature of Singapore's multireligious, multiracial community. Such an agenda would be divisive. Therefore, the attention given to fundamental moral values of the majority of citizens by retaining S377A in its entirety strikes the right balance."

The first sentence is factually correct -- the NTU study I referred to confirms it. But conventional legal theory states that offensiveness, in and of itself, is not good enough reason make something a crime. Indeed, I can think of plenty of offensive behaviour (cutting queues and inconsiderate driving, for starters) that is not illegal. Furthermore, allowing moral majorities in and of themselves to dictate laws seems to me to be a big stride down the road to intolerance, discrimination and persecution.

The next sentence is factually incorrect. It suggests that only homosexuals are pushing for repeal of Section 377A. That is completely wrong. I am straight, and I oppose Section 377A. I know many people who are straight, who also oppose Section 377A.

Furthermore, and here I expect to attract some controversy (but I will push on anyway), I want to ask whether there is an aggressive religious agenda to dictate law-making in this area. The NTU study found a strong correlation between certain religions (specifically, Christianity and Islam) and opposition to homosexuality. Indeed, MM himself also alluded to this.

I am an atheist. I strongly object to allowing an aggressive religious agenda of one or two religions to dictate law reform (in the case, the lack thereof). That ignores the nature of Singapore's multireligious, multiracial community, which includes atheists, agnostics, Hindus and Buddhists. Such an agenda is divisive.

And so, I would invite those who assert homosexual agendas to declare their own agendas, openly and transparently.

*

I am not sure what I was more disappointed with: the thrust of the article, the poor (sometimes non-existent) reasoning, or the fact that The Straits Times chose to publish it and to give it such prominence. But I do know that I was immensely disappointed that this piece was written by an assistant professor in the NUS Law Faculty, who also teaches constitutional law. She may know the law, but she has not, in this piece, demonstrated the ability to apply it.

I was really upset when I read it. As a self-confessed liberal, I accept the right of others to hold their own opinions. That comes with the territory. But I do find such poorly-reasoned attempts at arguments terribly offensive. And that is why I decided to write such a long response to it.