Friday, September 19, 2014

Walter Woon, Tommy Koh differ on 377A anti-gay sex law at NUS forum

Top lawyers debate repealing of Section 377A at human rights session

SEP 18, 2014


The subject of universal human rights took a local turn at a university forum on Tuesday night, with two top lawyers disagreeing over whether an anti-gay sex law should be done away with.

National University of Singapore (NUS) law don Walter Woon said he was in favour of repealing the law because of what he sees as a "constitutional problem".

The Government has said that the law will not be proactively enforced. But Prof Woon, a former attorney-general, cited Section 35(8) of the Constitution to make the point that the powers to prosecute lie with the Attorney-General.

"So we have a very dangerous precedent here where the political authorities are saying to the Public Prosecutor - who is supposed to be independent - there are some laws that you don't enforce," he said at the 12th NUS Tembusu Forum attended by about 250 students.

"I find that very uncomfortable," he added.

Section 377A makes it a crime for men to commit acts of gross indecency with other men, whether in private or public. It carries a jail term of up to two years. The law, enacted in 1938, has been in the spotlight in recent years following Parliament debates and constitutional challenges.

Prof Woon said that homosexual sex was "absolutely impossible to prove" as a practical matter. He added: "As a matter of principle, if these are consenting adults, why should it carry a jail term?"

While considered a sin by certain religions, it could be accorded similar treatment to adultery and fornication, which are not crimes under the law, he said, adding: "If it is a sin, it is between you and God."

[Walter Woon makes a strong logical, legal, constitutional argument (he is after all a lawyer). 1) The law is the law. 2) The power to prosecute lies with the AG, who is independent. 3) For the govt to say that the law will not be enforced implies that the govt is asking or telling the supposedly independent AG NOT to enforce certain laws.

Then he adds that homosexual sex between consenting adults are "absolutely impossible to prove."

And this undermines the "constitutional" argument. It is not clear that the govt has ordered the AG NOT to enforce the law, only that there would not be active pursuit of prosecution of this "crime". Given that proof is almost impossible to secure, it may well be that any reasonable and practical AG will realise that it would be difficult if not impossible to prosecute consensual homosexual sex between adults. And the "order" from the govt is no more than a pragmatic recognition of the difficulties of prosecuting this offence.]

NUS Centre for International Law chairman Tommy Koh agreed that the provision should in principle be done without, but said abolishing it was "not so simple" given potential political pushback.

[Professor Tommy Koh does not disagree, but noted that the difficulties lie with the political pushback. In other words, it is not simply a legal or constitutional matter.]

A majority of Singaporeans were against a repeal going by opinion polls, Prof Koh said.

"The compromise is a law in the book, but Singapore will not enforce that law," he said, adding that the Government's difficulty in balancing opposing opinions "should not be underestimated".

The panel at the two-hour forum titled Are Human Rights Truly Universal? also included Ms Braema Mathi, president of human rights group Maruah, and Mr Bernhard Faustenhammer, who heads the political, press and information section of the European Union delegation to Singapore.

They concurred that the idea of human rights is universal, but its application hinges on local contexts, such as culture and history.

Ms Mathi cited the example of Brunei's recent passing of the hudud law, an Islamic penal code that calls for death by stoning for adultery, which she said appears to contradict both regional and global human rights declarations.


[Yes, the govt is trying to walk the middle ground between the conservative and the more (let's call them) "progressive". This seems like a good compromise. Keep the law on the books to show solidarity with the conservatives, but don't enforce the law to avoid alienating the LGBT community.

Win-win, no?

The constitutional argument by Walter Woon is an academic argument at best. Even if the govt did not tell the AG not to enforce 377A, it would still be (almost) impossible for AG to enforce the law. In fact, the reality of the situation may well be that the AG might have advised the govt that the law would be unenforceable. And instead of taking the laws off the books, the govt might simply have framed the situation as they have: 377A is left on the books to reflect conservative values, but as a "compromise", the law will not be enforced. 

Too clever for their own good eh?

Yes. Too clever.

What has happened though is that at least one conservative religious - Lawrence Khong had chosen to interpret (reasonable interpretation, I might add) that 377A means that the official position of the govt is that homosexual sex is wrong, is an offence, is a crime, is punishable under the law.

And then, Lawrence Khong claim that his support of the "wear white" campaign, and his anti-LGBT statements were simply to "defend the official position of the SG govt". 

The SG govt has painted itself into a corner.

By keeping 377A on the books, the govt defended their decision as moving as fast as SG society is prepared to move. However, in doing so, they have, as Lawrence Khong might put it, established the official position of the SG govt - that it is a reflection of conservative SG society. 

The govt's "official position" is a compromise, and an untenable compromise at that. Khong has shown how vulnerable that compromise is to be "hijacked" by the conservatives (religious or otherwise), how easily they may be used by the conservatives.

The compromise has been compromised.

The SG government has resisted all the arguments from the LGBT community about how keeping 377A is discriminatory (or incriminatory?), by insisting that it is merely a reflection of societal mores, and there would be no active persecution (or is it prosecution) of LGBT. 

But the govt's fence-sitting position can be used to persecute (if not prosecute) a campaign against the LGBT.

That is the fatal flaw of sitting on the fence on this issue.

It may be that politics is the art of negotiation and compromise, but sometimes politics is also about doing the right thing, leading people even when they are not ready. Or especially when they are not yet ready.

The alternative is to sit on the fence, uncomfortably, and be used by the unethical.]

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