mollymeek

When it comes to the issue of homosexuality and the issue of 377A, the two Great Lees have spoken about keeping matters ambiguous and Molly has commented on this in at least two blog entries, here and here.

Let me quote MM Lee again: "[W]e take an ambiguous position. We say, O.K., leave them alone, but let's leave the law as it is for the time being and let's have no gay parades."

And let me quote CNA's report on what PM Lee said: "According to CNA, "Mr Lee believes it is better to accept legal untidiness and ambiguity over 377A, adding that it is unwise to force the issue definitively one way or the other because there are strong views on both sides, and the debate will change few minds."

Molly has never quite favored that position of ambiguity, which is little more than a rhetoric of balance. We are supposed to think that the powers that be are really open-minded, but never to the degree of being disrespectful towards the supposedly conservative and hence supposedly anti-decriminalization (notice the double leap) when it comes to gay sex.

The ambiguity is selective too. Who has the power to be ambiguous?

And who interprets the law in this democratic country?

On December 5, there was a Straits Times article by Prof Kumaralingam Amirthalingam, "Balancing evidence and rhetoric in law reform". In the article, he suggested that with the repeal of Section 377, 377A should not be interpreted to include anal sex:

There is an assumption that 377A includes anal sex as part of the definition of gross indecency. However, the legislative history of the two provisions, as well as the existing jurisprudence and prosecutorial policy, suggests that 377A does not include anal sex.

Section 377A was . . . was introduced in 1938 following reforms in England. During the introduction of the Bill, it was explained that 377A 'makes punishable acts of gross indecency between male persons which do not amount to an unnatural offence within the meaning of 377 of the Code' (italics added). Clearly, 377 and 377A were intended to be complementary but mutually exclusive provisions. 

The fact that the two provisions are aimed at different acts was highlighted in a Singapore High Court decision, PP v Kwan Kwong Weng, where the judge held that 377 was limited to anal sex and bestiality, excluding oral sex, which properly belonged to 377A. 

The decision was overturned on appeal, where it was held that 377 could include oral sex in certain serious cases where a higher punishment was warranted. It should be noted that 377 carried a maximum life sentence while 377A has a maximum sentence of two years. While the prosecution had the discretion to prosecute oral sex cases under either 377 or 377A, there is no local authority where anal sex has been prosecuted under 377A. 

The crucial question then is whether gross indecency in 377A can be interpreted to include anal sex in the light of the repeal of 377. Arguably, courts should not interpret 377A in this way, as one of the principles of statutory interpretation, particularly in criminal law, is that where there is ambiguity, the penal provision should be interpreted in favour of the accused.

In Singapore, what do you do when there is ambiguity in the law?

Maybe you let the Ministry of Home Affairs interpret the law instead of letting the judiciary interpret the law as it is stated in the book.

From The Straits Times (Forum), December 13:

Section 377A covers anal sex between males

I REFER to Associate Professor Kumaralingam Amirthalingam's Review article, 'Balancing evidence and rhetoric in law reform' (ST, Dec 5).

 

Prof Kumaralingam argued that based on existing jurisprudence, gross indecency under Section 377A (Outrages on decency) of the Penal Code does not include anal sex between males. He is of the view that since Section 377 (Unnatural offences) which criminalises consensual anal sex between males will be repealed and Section 377A does not include anal sex, there is a lacuna in the law. There is no lacuna in the law. The debate in Parliament made it abundantly clear that the Government's intention is to decriminalise oral and anal sex between a consenting adult heterosexual couple in private by repealing Section 377 but to retain the status quo whereby homosexual acts under Section 377A remain criminalised. In this regard, the Attorney-General's Chambers had earlier advised that Section 377A covers the act of anal sex between male persons.

Toh Yong Chuan
Deputy Director
International & Corporate Relations Division
Ministry of Home Affairs

Of course, it would be pretty naive for anyone to think, when Chee Siok Chin and John Tan were stopped by the police when the approached Shangri-La Hotel during the ASEAN Summit, that they were really going there for dinner.

But how would the police have been able to access and assess their intentions?

Opposition leaders = out to make trouble, PAP leaders = good people, red T-Shirt = protestor?

Weren't the police acting to stop them from approaching the hotel because of an assumption that they potentially there to make trouble because they were opposition members?

A person not recognizable by the public or by the public and who wore white might not have faced the same treatment even if had the same intentions - or even if he had swallowed a time bomb and was going to be a suicide bomber at the Shangri-La Hotel. Or perhaps surveillance in Singapore has reached such a level of sophistication that policemen are planted with micro-chips which will enable them to receive via satellite the profile on each person that comes into their vision--and even this would only be possible if surveillance is so rampant in Singapore that the state has a detailed profile of each individual, including even his MSN conversations, perhaps.

In any case, do we have access of Chee and Tan's intentions now?

Were they really there to protest?

Or were they actually there to make a statement about protesting, to test waters that they know will scald them?

I am more inclined to the latter possibility, though I am not able to prove it.

And since I can make a good guess about their intentions, why do I seem to be suggesting that the police should not have made a similar judgment on the duo? Well, that is perhaps the difference between an irreponsible (or even a responsible) blogger and the police. I speculate, but I don't do anything to others by speculation. On the other hand, does the police not need evidence before they single out people and "do things" to them? Such as forcibly removing them from a place using an unmarked vehicle.

If it is true though, that Chee and Tan were not really there for dinner, would it be to their discredit?

Not for me.

It was a political act (though not necessary an act to score for themselves political points, as some might say). It was to say something by doing something. It was an act done out of a wish to enlarge the really limited free space Singaporeans have. (Of course, this is just my interpretation of the action. No one, as always, needs to believe me.)

And perhaps that's why the police is indignant. Even if they had let Chee and John had their way, I don't think either of them would have harmed an ant at the ASEAN Summit. So what even if they were allowed to protest? What was at stake was the pride of the state. It was a challenge to an oppressive system which, of course, found it crucial to fight back--not to face the challenge, really, but to curb it and hopefully erase it from visibility.

The same goes for the case of Leow Zi Xiang, whom Molly blogged about here and here. This guy is now portrayed as a liar by the media. The New Paper has an article, "I didn't come clean with the police."

Of course. If he had come clean with the police, he would have had told the police: "Yes, I'm deliberately challenging the system. But charge me if you can!"

The article starts off this way:

He wants you to believe it was all a coincidence.

Like how he just happened to have on a red soccer jersey.

LATE FOR PROTESTS

After much to-ing and fro-ing, Mr Leow revealed his real intention - to be there for the planned protests which were scheduled to start at 11am and end at 6pm.

He said: 'Since I wanted to see what was going on, I wore red to show my support.'

But when the duo walked up at 1pm, it was all over. His friend, Mr Shamil, said: 'We knew the protest was over. Honestly, how long can it last? But we were curious to see if it was successful.'