During the parliamentary debate on 22 and 23 October 2007 over the petition to repeal Section 377A of the Penal Code which criminalises sex between men, the People's Action Party (PAP) members of parliament (MPs) listed below spoke in favour of it.
Baey Yam Keng
- Main article: Baey Yam Keng's views on homosexuality
The section that has attracted the most number of opinions, most heated public debate, with two online petitions and one Public Petition to Parliament is, in fact, one that has been retained - section 377A which probably has become the most known piece of legislation in recent Singapore history.
Let us look at this issue in a hypothetical scenario. Singapore was never a British colony and we did not inherit section 377A. Today's debate then becomes one of justifying the introduction of a new piece of legislation which states that, "It is an offence for any male person, who in public or private, commits an act of gross indecency with another male person.".
The rationale will be that since Singapore is a generally conservative society, we should single out and criminalise all sexual activities between two men while accepting that the same activity of anal and oral sex between a heterosexual couple and sexual activity between two women need not be offences.
By doing so, we will be aligning our law with most countries in Africa and Middle East. In this hypothetical scenario, perhaps some countries like India, Sri Lanka, Pakistan and Malaysia will also introduce similar Acts, as what their current position is. Other former British colonies which have since repealed the 19th century law, such as Australia, New Zealand and Hong Kong, will most likely not think it is necessary to now criminalise man-to-man sex.
While almost all western countries do not have similar laws, we will argue that it is not relevant for us to take reference from them. However, we are also choosing not to benchmark Singapore against countries like China, Indonesia, Thailand, Japan, South Korea and the Philippines which do not have laws that criminalise male homosexual ctivity.
According to various points raised by the public, by not criminalising gay sex, it will lead to an increase in homosexual activity, both in public and private. There will also be more male paedophiles eyeing young boys, blatant public solicitation and more AIDS patients.
The fact that in 2006, of all the new AIDS cases in Singapore, homosexual transmission constitutes only 26% does not seem to register clearly with the public.
We also know that there are already laws and there will be stronger laws against prostitution, sexual abuse, exploitation of minors and public indecency. Maybe that is why we will propose that section 377A need not and will not be proactively enforced.
Can the Senior Minister of State give examples of situations where specific enforcement of only section 377A may be needed? Yesterday, he mentioned previous convictions under section 377A, but it seems to me that they could also have been prosecuted under other sections. With no proactive enforcement, should anyone be a good citizen and report private gay sexual activities to the police or will they be simply ignored? Will
there be ramifications of this legislation? If someone rents his apartment to a gay couple, will he be charged as an abetting accomplice to a crime under section V of the Penal Code? Besides valid immigration and employment papers, should landlords now ask for confirmation of their tenant's sexual orientation?
With a punishment by up to two years of imprisonment, we are deeming that such activities are of similar severity as causing death by negligent act in section 304A(b), and wrongfully confining any person for three or more days in section 345, and assault or use of criminal force to a person with intent to outrage modesty in section 354(1).
Our justification will also be supported by various surveys, including a NTU study published in September 2007 which saw that 68.6% of respondents in Singapore were negative towards sex between two men or two women. However, it is also interesting to note that some countries choose not to reflect such social non-acceptance in legislation.
Based on the Pew Global Attitudes Project in 2003, 93% in Indonesia and 84% in Vietnam say that homosexuality should not be accepted by society, but these countries have no equivalent of section 377A.
I assume most Singaporeans do not have many gay acquaintances. We are likely to gather our knowledge and form our opinions of the homosexual world from media reports. I believe certain stereotypes of homosexuals in people's minds will include effeminate men, like Boy George, men who prey on young boys, eg, Christopher Neil, flamboyant men who seem to lead decadent lifestyles, like Elton John, and AIDS patients, like Paddy Chew.
I do know quite a number of homosexual men and women. However, the majority, if not all of them, do not fall into any of those abovementioned stereotype categories. Well, they include some very talented and creative people - a common impression of gays which many have said is totally unfounded. These are the directors, actors, hairstylists
and designers. But I also know many gay men who are just your average men on the street, making a living as lawyers, lecturers, engineers, accountants, bankers, teachers and civil servants.
I know they have different sexual practices from me, and I have treated them just as any other person. Now, I am reminded that perhaps I should see them as criminals who should spend time behind bars. Perhaps, the thousands of audience who paid as much as $400 to watch Sir Ian McKellen, better known as Gandalf in Lord of the Rings, playing King Lear, in July, might think twice now as he is an openly gay man and hence should object to allowing a criminal on the stage of our Esplanade.
There are negative and positive steps a country can do to discourage and encourage certain behaviours. For example, we do not want to condone smoking and drinking. These acts are not criminal under the law, although we have made tobacco and alcohol less accessible and a lot more expensive. We want to promote marriage and procreation. Hence, singles do not enjoy certain tax and housing benefits, but they are not jailed.
We may be utterly surprised, disappointed, embarrassed, disgusted and angry with our friends, our colleagues and our relatives if we find out they are gay. I will be saddened if my son is gay, because I realise I will not have any grandchildren by him. I may choose to disown him, but now we are saying that he should be jailed.
Sir, I will now continue my speech in Mandarin.
(In Mandarin): [For vernacular speech, please refer to Appendix A *. ] As the Chinese saying goes, 不孝有三，無後為大 (Bu Xiao You San, Wu Hou Wei Da) which means, "There are three unfilial acts, the greatest is not to have a son." This is an important concept in a traditional and oriental society like ours. Parents are hoping that their sons will have wives and their daughters will be married, and the children also understand that it is an obligation for them to get married and have children. Nevertheless many people choose to marry late, not to get married, or not to have children, and for some it remains solely a personal choice. There are many reasons, but one reason is that they are homosexuals.
I have some homosexual friends and most of them do not want to make public the fact about their sexual inclination, because Singapore is after all a more conservative society. They will only confide with their close friends, colleagues and siblings. More often than not, parents are the last to know. Especially for those who are male homosexuals, the gays, they will not be able to have children and they do not know how to live up to their parents' expectations. A friend of mine did not have the courage to tell his parents. And only after his father had passed away that he disclosed his secret at his father's coffin. Even now the mother does not know about it.
When parents find out that their children do not like the opposite sex, their immediate reaction is that of shock, sadness, shame, anger or remorse, and they try to find out what has gone wrong - why their children had become homosexuals. Some of the parents chose to run away from reality and one of my friend's mother had gone to the temple to pray, she came back with a charm mixed with water, with the hope that after drinking it, it will cure the son. They do not know what to do and some of them even chase their son out of the house, but if they were to take time to think it through calmly, I do not believe that they will charge their son in court and send him to prison for two years.
I have a friend who is the only child in the family. His mother still could not fully accept the fact that her son does not have any interest in the opposite sex. She was more worried that her son may be sentenced to jail being a homosexual. However, she is the person that knows him best, she knows that her son is very filial and obedient; he is a law-abiding citizen and a successful professional. Also, she has known the "boyfriend" of her son for many years and knows they do not have a promiscuous lifestyle.
As parents, we are often the best judges of our children's character. Having a different sexual orientation from the others does not mean that they have committed a heinous crime and therefore should be criminalised.
Back in English
Back to my hypothetical scenario, we will also say that we introduce section 377A as a symbol that the society is conservative and that we do not want to go down a slippery slope to see public display of affection between men, the fight for gay rights and gay marriages. For seven years, I have lived in London, a city that legalised consensual homosexual sex 40 years ago in 1967. I am hence surprised to recollect my time there and I have not ever seen any such behaviour or intimacy between two men in public whilst I was there. Perhaps Ihave not been to the right places, but I have not indeed seen anyone before my eyes.
Perhaps we are afraid that the slope will be more slippery in Singapore. After all, we have a track record of taking a more progressive stance in some areas, such as stem cell research and digital rights, leading the way, so to speak.
We take into account the change of times and lifestyles. For example, section 376E on sexual grooming of minors is farsighted nip in the bud. Times have changed and our attitudes towards different crimes and their punishments have evolved as well.
Should the law reflect the general or popular opinion or should it set up a framework to steer the way of thinking and behaviour of its citizens, residents and visitors?It is clear that we have chosen to take the former approach in this case.
I do recognise that in today's situation, there is already an existing Act, and the debate is whether it should be retained or repealed and not whether we should introduce a new Act. We have inherited section 377A from the British.
It is easier and, as the Senior Minister of State said, more practical to maintain the status quo than to change it. Because of the extensive and, some may say, polarised debate, we may not be ready to repeal the Act now.
However, whether the perceived majority holding the status quo view has enough knowledge and understanding of the subject matter to make an informed opinion, is another question. I suspect a significant segment of our society does not really care and some are just uncomfortable with this topic and choose the convenient way to stick with the status quo without knowing what the Act exactly is and does.
Last week, a resident came to my meet-the-people session and said that she is happy that the Government is retaining section377A. I asked her, "Do you know what section 377A is about?" She said, "I don't know."
I am happy to note that both the proposition and the opposition have spoken publicly and rationally. Hopefully, the Government will provide the environment to encourage the continuation of such dialogue so that the society at large can achieve a better understanding of the matter. I want to especially encourage voices from institutions, like the Law Society, so that this discussion will not be driven to periphery. Hopefully, the discussion will be ongoing and not just during the next review of the Penal Code. Hopefully, the review will happen earlier rather than another 23 years later. Hopefully, we will move with and not play catching up with the pace of change around the world that is affecting people's lives.
Sir, with that, I support the Bill.
Sir, another provision that has generated much controversy is section 377A. Much has already been said on this section, and I am not sure if I can add anything that has not already been said. I shudder at the thought of adding more of it because of the passion that has been shown in this House. But I think I would be remiss as a legislator if I merely hid behind the views of the "conservative majority" and maintain the status quo, which of course would be the least inconvenient thing to do if you were not gay.
Sir, I am not convinced that there would be drastic consequences in our society if we do not repeal section 377A, as the section has been in the Penal Code since the Code was adopted in, I think, 1871. Neither am I convinced that we will all rapidly slip down the slippery road if we were to repeal section 377A, as suggested by some Members. The
slippery road argument has less of an impact on me these days, as I have heard that sort of arguments used many times before.
Some years ago, a senior politician (who shall remain unnamed) argued his case as eloquently and as convincingly as some of our NMPs did yesterday, in retaining an archaic regulation. The removal of such a regulation, it was said, would have led to conflicts, fights and murders, if it were to be abolished. Well, we have abolished that archaic regulation and permitted bar-top dancing for some years already, and the world has not come to an end yet.
Sir, if the experts and MM and PM are indeed correct (and some of our MPs wrong) that some of us are indeed born with different sexual orientations, then it would be quite wrong for us to criminalise and persecute those that are born different from us, regardless of how conservative a society we claim to be, especially if their actions do not cause harm to third parties.
Sir, we also claim to be a secular and inclusive society. We should therefore respect the private space of those who are born different from us as much as we expect them to respect our common space. Therefore, if we do retain section 377A, which is most likely the case, as the Prime Minister has said so already, then we should exclude criminalising acts done in private between consenting adults of full capacity. Enforcing section 377A for acts done in private would be onerous if we do not have the equivalent of religious vigilantes that some of our neighbouring countries have to spy on what takes place in the bedrooms and hotel rooms.
Is it really the business of Government to regulate acts between consenting adults born with different sexual orientations in the privacy of their bedrooms?
Sir, if we have intended the retention of section 377A in the Penal Code as an expression of our conservative values, rather than to be proactively enforced, as some have suggested, then I think we have come out short even in this respect. The section criminalises act of gross indecency in public and in private only if it is engaged between men.
Surely, the Minister must acknowledge that women are as capable as men of committing such acts. Is section 377A therefore, as it stands, a correct statement of our values and principles? Or are there no lesbians in Singapore?
Sir, it would simply not be realistic to expect the majority of Singaporeans to ever reach a position of being pro-homosexuality or where they would actively seek to repeal section 377A as a matter of priority. Even if heterosexual Singaporeans are apathetic towards homosexuality, it would be much easier just to maintain the status quo than to take steps to modify or even expunge section 377A from the Penal Code.
Having said all this, section 377A is useful in one regard as it is currently an offence for a man to "procure or attempt to procure the commission" of an act of gross indecency with another man. This gives some protection to men who are subject to unwanted sexual advances of other men and should continue to be an offence whether these advances are made in public or in private. The section should however be extended to protect women who face the same sort of harassment from other women.
This is a rare case of the Penal Code providing more protection to men than it does to women. It is unfair and may even be unconstitutional that women do not, in this respect, currently have the same sort of protection that men have under the law.
So, ultimately, my question, as asked by the other Members, is: if we did not have section 377A in the Penal Code today, would we think it fit and proper to enact a provision in exactly the same terms? Would we not be seen as being narrow-minded, perhaps even bigoted in our philosophy towards people who are born different and engage in practices not approved by the majority, even if no harm is done to others?
If we would not, then I think we should show leadership and convince the majority to do what is fair, just and representative of the age in which we live. And that it does not make sense to have a law we do not intend to proactively enforce and that intimate relations with the consenting adults in the privacy of one's bedroom are not the business of the Government.
Finally, Sir, I support the many changes made in the Penal Code, not only to expunge archaic laws and terms - I am delighted to hear the Senior Minister of State say that there are no more terms of "bullock", "ice-house" and "horse carriages" in the Penal Code - but also to bring the existing laws up to date with our present day situation.
Although in several areas I think we could have done better, overall, it was quite a commendable effort and I hope the Minister would continue to refine the provisions further in the very near future and to seriously consider expunging laws that we have no intention to enforce.
Hri Kumar Nair
Let me touch briefly on the issue of section 377A. As Professor Ho pointed out, this is one debate which will not see people switching sides easily. Both proponents and opponents of the law have deeply entrenched views on the subject, and that is unlikely to change for some time. I have personally asked many people, both young and old, what they think of this issue, and the almost common consensus is that they do not want this law to be repealed and that is consistent with the feedback the Government has received.
So I do not wish to engage in a moral debate, and certainly not a long one, and I have no rousing speech to deliver. What I wish to do is to approach it from a lawyer's point of view and how I see Parliament and Parliament's role in making laws.
Sir, as a lawyer, the power of Parliament to make law is of particular interest to me. When judges and lawyers interpret laws, they are, in certain instances, permitted to refer to Hansard to determine the intention behind any word, phrase or provision in a piece of legislation. Parliamentary debates, therefore, play an important role not just in the passing of laws but how they will be understood by those who later apply them. What we say here or do must be consistent with the law we promulgate and also make sense to those who will scrutinise our words perhaps years from now. In my submission, laws must meet the three Cs, ie, be clear, consistent and concrete, meaning that they must be substantive, effective and make sense. What I find difficult about this issue before us is that while the majority do not wish a repeal for good reason, intellectually, section 377A does, in some respects, fall short of what a good law is or should be.
Sir, first, it is unclear what the current legal position is. In a statement on 7th of November 2006, the Ministry of Home Affairs said that, with respect to section 377A, it will not be proactive in enforcing the section against adult males engaging in consensual sex with each other in private. But what does that mean? Does it mean that the Police will not act on complaints or that suspects may be investigated but ultimately not arrested or prosecuted? Or is it the case that the Attorney-General, who has prosecutorial discretion, may prosecute some but not all offenders? That puts the Attorney-General in a difficult position because selective prosecution will give rise to more issues. But if the intention is not to do anything at all, then what is the purpose of having the law? Does it not hurt our credibility that we have laws that are toothless? The Penal Code is an important piece of legislation and, in the long run, making some conduct criminal under our Penal Code whilst stating that the law will not be enforced, simply invites attacks on the integrity of the Code.
Second, we are not being consistent. The retention of section 377A is often justified as being consistent with the importance society places on family values. But society has done away with criminalising a whole host of other conduct, which is far more damaging to family values, such as adultery, which carries a more direct threat to the integrity of the family. And adultery was one of the original Ten Commandments. Further, it is not always true that laws always reflect society's or the moral position. Marital rape is a good example. I cannot imagine any Member of the House believing that it is acceptable for a man to force himself on a woman under any circumstances, regardless of whether they are married. But we do not completely outlaw marital rape. The Bill here certainly protects a woman more by prescribing circumstances under which her husband can be charged with rape, but the protection is not absolute for wives. Why? Over and above the reasons that have been given - and in this respect I share NMP Ms Eunice Olsen's criticisms of those reasons - more importantly, the law knows its own limits and it is practically impossible to properly enforce a law by giving a wife absolute protection. So, likewise, we also accept that the Penal Code is not the appropriate tool to legislate or regulate the private heterosexual behaviour of consenting adults. Indeed, it is almost impossible to effectively do so. In addition, the question arises also why section 377A does not deal with lesbianism. Over and above the legal basis for discriminating between men and women, where is the consistency?
Thirdly, Sir, the law has no real substance. Through a 15-year period, ie, 1988 to 2003, there were only eight convictions under section 377A involving seven incidents. Two convictions were for the same incident. Moreover, it has not been invoked in respect of consensual sex since 1993. So this law is rarely applied or, if applied, it applies to minors or acts in public. Does that mean that private consensual homosexual acts do not happen in Singapore? To believe that would be naive. The truth is that it is virtually impossible to enforce this law. Now that the MHA has said that it will not actively pursue offenders, we are not likely to see any prosecutions in the future, certainly not many.
Sir, I accept that even if a law is difficult to enforce, it can still serve a legitimate purpose in its underlying message, and section 377A sends the message that those who engage in homosexual activities are criminals. But at the same time, we have been saying that our society will not reject those with alternative lifestyles. We have even said that such individuals have a place in our civil service.
It has also recently been said that homosexuality may be genetic, and the debate on this issue is still raging on. Now, the MHA says that it will not prosecute offenders. So what is the message we are sending? Are we for or against it? What do we stand for? While this may be an uncomfortable issue, we should at least make our position clear. Just to cite an example by Mr Christopher De Souza, he says, messaging is important, and he cites the example of suicides, that if we do not make it an offence to commit suicide, we are sending the message that suicide is acceptable. But there is no inconsistent messaging for suicide. So it is not such a clear issue.
Sir, my second issue is with the arguments put forward by the opposing camp. The opponents of the repeal have expressed concern that any repeal may be construed as endorsement by the Government in favour of alternative
lifestyles. That is a fair point. However, likewise, I hope that any decision not to repeal will not be regarded as an endorsement for some of the reasons that have been advanced to oppose it. What are some of these reasons?
First, the argument advanced by some religious groups that section 377A should be retained because homosexuality is an abomination. I respect their right to express their views, and I do not think this is the appropriate time or place for me to discuss it. But we must remind ourselves that we are a secular state, where every one is equal in the eyes of the law, and it is important to assure all citizens of Singapore that decisions will always be made on secular grounds.
Second is the notion that section 377A reflects our Asian values. But section 377A is not even Asian in origin. Section 377 was originally based on an English criminal law which sought to prohibit sodomy, and was incorporated into the Indian Penal Code in late 1862. It was also adapted for the Straits Settlements Penal Code in 1871. Section 377A was later added under the sub-title "Unnatural offences" in 1938. Both sections were absorbed unchanged into the Singapore Penal Code when the latter was passed by Singapore's Legislative Council on 28th January 1955. In short, we inherited this from the British. There is nothing distinctly Asian about it.
Third is the argument that repealing section 377A will lead to a rampant increase in homosexuality, and thereby increase HIV rates. First, retaining the law can make no difference because offenders have already been told that they will not be prosecuted. Second, Sir, it is stretching logic to suggest that the repeal will lead to a sudden proliferation of homosexual activity. Thirdly, making something illegal only forces it underground. That will restrict the ability of the Government to respond to the HIV threat through promotion and education, when Government agencies feel that they cannot engage with the gay community in any way except a condemnatory one.
Finally, Sir, is the argument that the repeal is a slippery slope, that it will herald the end of the family unit. As I have said earlier, there is no consistency in our laws to support this argument. Further, while society may frown on homosexuality, that, by itself, does not justify criminalising it. A number of speakers, at least one of them, have highlighted the surveys in the Straits Times where the public was polled and 70% were said to frown on homosexuality. I can understand that. Seventy percent frowned on it. But how many actually said that they were willing to criminalise it? That question was not even asked, and that is a serious question because that is the issue we face today.
Some Members have mentioned the possibility of same-sex marriages occurring here. That, no doubt, will be an issue which gay activists will push further down the road. But that involves the Government actively endorsing and passing legislation to recognise same-sex marriages. So the arguments here do not apply.
Sir, can I end by putting the question in another way? I say there is another way to test the issue: assume we are here debating whether to include section 377A into our Penal Code, would we do it? I am not sure we would, because we would hesitate about passing laws to deal with private acts in the bedroom. But because it is already there, we are comfortable living in there.
Sir, it may well be that our society today is not ready to debate this issue. I hope that it will not be too long before we feel ready to do so, because I think that is a sign of our growing maturity. But when we do debate this issue, I hope that the debate will be calm and measured as that typifies the way we do things in Singapore. Certainly, we do not wish to see any proliferation of hate messages of mails and other things which Professor Thio Li-ann has talked about. That is certainly not the way we do things in Singapore, and long may that continue. Ultimately, laws should be passed or repealed not only because the majority wants it that way, but because it makes sense and it is in the interests of Singapore as a whole, including the interests of all minority groups.
- Section 377A of the Singapore Penal Code
- PAP MPs against the repeal of Section 377A
- Archive of "Parliamentary debate on Penal Code (Amendment) Bill, 22 Oct 2007"
- Archive of "Parliamentary debate on Penal Code (Amendment) Bill, 23 Oct 2007"
- Archive of parliamentary debate on Section 377A (22, 23 October 2007)
- Singapore Parliamentary Reports (Hansard), Penal Code (Amendment Bill) dated 22 October 2007:.
- A playlist of all videos pertaining to Section 377A of the Penal Code:.