In Chapter 19 of a new book Management of Success, Singapore revisited, National University of Singapore law professor Michael Hor makes a strong argument that Section 377A of the Penal Code is unconstitutional. This is the law that makes it an offence for men to have sexual relations with each other, effectively criminalising male homosexuality.
A push was made in 2007 to get it repealed, but it was not successful. Christian conservatives led by then-Nominated Member of Parliament Thio Li-Ann, who happens to be another law professor, raised a hue and cry about the dangers of homosexuality to the moral fabric of society.
The Management of Success, Singapore revisited is published by the Institute of Southeast Asian Studies, and edited by Terence Chong of the same institute. It is a sequel to an earlier book of similar name published in 1989.
In his chapter, Michael Hor noted that despite the vocal attempts to demonise gay people and paint homosexual orientation as injurious (including by some members of the ruling party) the government did not subscribe to such reasoning. Yet the government chose to keep the law.
Why, according to the government, was 377A retained? What is clear is that it was not preserved for any of the conventional aims of the criminal law — that of desert, deterrence, incapacitation, or even more exotic ones such as denunication. PM Lee’s exhortation in Parliament that we should not make it any more difficult for gays to grow up than it already is dispels any notion that the government thinks there is anything wrong with 377A activity or that it causes any harm to self or society. One only needs to compare PM Lee’s statement of the government’s position with that of the key speech arguing for the retention of 377A — primarily on the basis of the usual litany of “harms” — to see how different they are. There is no doubt that PM Lee did not buy into any of them. Were it otherwise, it would have been completely incomprehensible to have announced the continued non-enforcement of the retained 377A.
The “key speech arguing for the retention of 377A” that Hor refers to was that made by Thio.
Hor then goes on to discover that the government’s decision was bi-layered. The surface justification, going by the prime minister’s words, was that it would be symbolic — a “signpost of heterosexual orthodoxy”.
Hor next asks what the motivation might be for wanting such a symbol. He examines the possibility that it could be to steer people towards heterosexual orientation, yet the government itself, from its own words, does not believe so.
Now the more basic question — why is such a symbol needed? Perhaps it might be argued that such a symbol will tip the balance when someone who is sexually ambivalent decides where his inclinations lie. This raises the issue of choice — another matter on which the government and the ardent supporters of 377A are not ad idem. It is clear that the government is of the view that sexual preference is primarily, if not entirely, predetermined — it is not a matter of choice. If this is what the government believes, then it cannot be that heterosexual symbols are needed to persuade people to be heterosexual.
The expression “ad idem” means “of the same mind”.
As was well-known, the anti-gay movement was religiously inspired. The government however was neither dictated nor swayed by them, Hor said. In fact, the government “roundly rejected” the movement’s essential beliefs. Still, it appears that the government did not want to annoy them any further by leaving them empty-handed. That motivation alone made the government decide to retain 377A.
But, Hor points out,
to give legislative effect to a norm which stems almost exclusively from Christian or Muslim beliefs does appear to be a curiously misguided decision. Take the example of the prohibition against eating pork — certainly a tenet of Islam and Judaism. No one would even suggest that we enact a law banning the consumption of pork in Singapore, even for Muslims, no matter how strongly these two religious communities feel about it.
Having laid bare the scrappy reason for retaining 377A, he next turns to the question of constitutionality. With reference to the constitutional guarantee of equality before the law, Hor explains that this provision requires that,
law must not be “arbitrary”; there must be a “rational nexus” or “reasonable classification” between what the law targets and the purpose for which it is laid down.
Laws must be tested for “fit” and “weight”, he said. With respect to the former, the question is whether the classification of the target persons affected by the law fits the intended purpose of the law. As for “weight”, the question is whether whatever the problem the law purports to deal with is real and serious enough to justify the intervention of criminal sanction. Or is it mostly capricious?
How does 377A fare? It can be quickly seen that the legislative decision to retain 377A is gravely problematic on both fronts. It does not fit very well at all. . . . If, as we have seen, the legislature was acting in some manner on the antipathy of certain segments of society towards homosexual activity, then the non-inclusion of women in 377A is a very huge omission indeed — more than half our population and presumably half of all homosexual activity. It would be akin to subjecting half all our cars to a certain speed limit rule based on the colour of the car.
If we think driving fast poses a danger to others and this is a good reason to criminalise excessive speed, then the law must apply to all cars. If it only applies to some cars based on a classification scheme that bears no relation to speed, it becomes immediately suspect. One cannot but suspect that there is another, hidden, motivation for the law. And if a motivation is hidden, one has to ask, why would the proponents want to hide it? Might it be because it cannot bear scrutiny?
The element of “weight” is no less shaky. Can the sole purpose of accommodation of sectarian sensibilities ever be weighty enough to justify the criminalization of private sexual conduct between consenting adults? If the answer is “yes”, then it is hard to imagine for what earthly purpose the equal protection clause was written into the Constitution for. It is not the case that the Legislature has made a judgment that 377A activity is sufficiently harmful to society to attract criminal sanctions. . . the speech of PM Lee shows a clear belief that it is not so harmful — but 377A was to remain for, apparently, the sole purpose of appeasing those who disapprove.
It is not difficult to see that if the desire to accommodate a disapproving segment of society is reason enough, that would result in the evisceration of equal protection. . . Equal protection is about protection against prejudice, and if the government does not buy into the substantive arguments (of those who disapprove) for criminalization, then those putative reasons become, as far as the government is concerned, prejudice.
The prime minister, in his speech defending the retention of Section 377A, said he had consulted the Attorney-General and had been advised that 377A was constitutional.
Hor, however, has compiled a set of arguments showing the opposite. He suggests a judicial challenge — “one can be excited about the opportunity presented to the courts to inaugurate an era of meaningful constitutionalism and judicial review”. I would note though that the Attorney-General in 2007 was Chao Hick Tin, who is today one of the Supreme Court’s judges of appeal.