Section 377A is a law, a decorative piece or a potential political tool?

The High Court in Delhi has interpreted s.377 of the Indian Penal Code as not criminalising consensual homosexual relations between adults for to criminalise such conduct would be unconstitutional. To put things in perspective, Singapore had already repealed s.377 in 2007. However, we do have s.377A:

Any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to 2 years.

What is our government's response to the Indian Court's decision?

“We have the law. We say it won’t be enforced. Is it totally clear? We, sometimes in these things, have to accept a bit of messiness.” - Mr K. Shanmugam, Minister of Law, 2nd Minister of Home Affairs.

Boy do I have a problem with that statement! The Law Minister is making a case for messiness in the law. Is it acceptable to have some messiness in the law?

The hallmark of the rule of law is the control of wide or discretionary power. Whenever the state is given power over citizens, that power must be regulated by law. Where the state has discretion in the use of power, that discretion must be regulated by law. Thus, in many areas of the exercise of authority, the Executive is required to operate within the boundaries prescribed by the Constitution and by Acts of Parliament. Where the Executive is permitted discretion in the application of particular policies, our system allows for judicial review of such discretion. In this way, we seek to control abuse of power by subjecting all power to law.

We have a slightly different problem when there is a law that criminalises a certain conduct. The state is now authorised to prosecute an individual for the commission of an offence as deemed by that law. Where such authority exists, the expectation of the citizenry is that the law be applied consistently and efficiently. With regard to much of our criminal laws we have earned the reputation of consistent and efficient application. What then becomes of a law that is not enforced? Does it cease to be law by its disuse? Does it gradually fail to have any legal status by the very fact of its long term non-application? The answer is an emphatic No! A law is a law so long as it fulfils the criteria of validity within a legal system. If it is found in a statute, by the requirements of legal validity in Singapore, we would regard it as a law. This is without regard to whether it has become comatose.

So, what is the problem if there is a law that criminalises a certain conduct and that law has gone into a state of disuse but is nevertheless considered to be a law? It is possible for someone to assert from a practical standpoint: ‘Look. That is the law. We haven’t been enforcing it right? We won’t enforce it in the future. So, there is nothing to worry about. The law is a bit untidy. But, that is just going to be an abstract issue of academic importance. You won’t get charged for this offence. We are sincere about it.’ It is easy to be enticed by this supposed distinction between the practical and the theoretical.

I firmly believe that there is a practical reason for removing a law that the Executive and the Legislature regard as one that should not be enforced. If a law that the state has chosen not to enforce is retained, it becomes a tool in the hands of a future Executive that seeks to abuse power. In relation to s.377A of the Penal Code this is the problem. It is clear from statements made by some of our ministers as well as some Parliamentarians that there is no collective interest on the part of our State to enforce s.377A. They have made repeated assurances that they would not enforce the provision. This includes the latest assurance by the Law Minister: “We have the law. We say it will not be enforced. Is it totally clear?” To be fair, I have no reason to doubt Mr K Shanmugam’s sincerity when he asserted that. In fact, there appears to be a certain impatience in the phraseology revealing the sincerity that the Minister has with regard to the non-enforcement of s.377A. I do not take issue with the sincerity of our government on this issue. I do believe that they would not enforce s.377A against consenting adults carrying out the act in private. Whilst I do not believe s.377A would be enforced, I do believe that it exists as a powerful tool if the state is minded to abuse power. We are all familiar with Anwar Ibrahim’s predicament in Malaysia. We should be aware of the fact that abuse of power through the use of archaic law is not merely a theoretical possibility but has in many jurisdictions been a painful reality.

We cannot pretend that we would be immune to such potential abuse of power. Imagine a scenario where a vocal critic is silenced through the application of s.377A. For example, the author of the Yawning Bread blog is, on an objective assessment, a vocal critic of the government. However, his criticisms are neither seditious nor defamatory. They are within the ambit of lawfully permitted speech. Nevertheless, if the state so desires, it could deploy s.377A against the author. Such potential for arbitrary use of power through the deployment of a law in a state of disuse is not just a theoretical possibility but also a practical problem when it materialises.

If the state sees justification in the criminalisation of a conduct, then that law must be enforced. If the state sees no justification for the enforcement of that particular law, then the state obviously does not believe in any justification for the criminalisation of that conduct proscribed by that law. In such a situation, when the law is in fact eventually enforced on an ad-hoc basis, it becomes a discretionary application of the law. The exercise of discretion by the Execeutive is always a worry when that discretion is unregulated. If the state is going to enforce s.377A on the basis of pure discretion, the law is susceptible to political abuse.

My view is that since the state appears not to believe in the need to enforce s.377A, that provision ought to be removed in order to prevent any future abuse of power. (For apologists of the status quo, imagine this: Dr Chee Soon Juan becomes the Prime Minister in 2030 and decides to have Mr K Shanmugam charged under s.377A using false allegations of engaging in homosexual acts with a former member of his staff. – I don’t intend to cast aspersions on the character of either Dr Chee or Mr Shanmugam by using this example. I have chosen to use this example so that the danger of leaving an unused law on the statute book can be driven home)