Muhammad Aidil
The proposed repel and re-scoping of s.377 decriminalises anal and oral sex done privately between consenting adult heterosexual couples aged above 16. However, homosexual acts, even when consented and done privately, still remain to be criminalised (s.377a). I will argue that there is a strong jurisprudential basis for the continued criminalization of homosexual acts.

It is recognised that modern society is more liberal now than ever. Therefore, assuming that most in society are at the very least indifferent to homosexual relationships/acts conducted privately, why should the law still criminalise homosexual acts? The answer lies in the simple proposition that in Singapore, due to our multiracial social fabric, legal paternalism rules and that there is no distinction between private and public morality – therefore criminal law can legislate on all matters concerning morals. That seems to be the jurisprudential basis of s.377, s.377a and other sections such as those dealing with incest and suicide.

This legal paternalism is particularly important in Singapore for internal and external reasons. Internally, our multiracialism and multi-religiosity form the fabric of society. Here, where a large part of its population subscribe to faiths that outlaw homosexual activities, it will be worrying if the government legalise homosexual activities. Externally, Singapore is essentially a non-Muslim state in a Muslim dominated region. I shudder to think of the effects of legalizing homosexual acts – I hardly think that our leaders intend for Singapore to be a “gay hub” where gays from Asia start to converge on a sunny gay-friendly island surrounded by conservative countries. This begs another question –- what gives our leaders/society-at-large the right to judge on matters of morals? Quite simply, society has an impliedright to ensure its continuance and cohesion.

In the absence of a realm of private morality, there must be some sort of shared morality or value-system that is common to all of us. That is the very basis on which we legislate our criminal laws and, more fundamentally, on which our society retains its communal cohesiveness in the face of individualism (of legal rights). Further, it is submitted that there is a need for individuals in society to be protected and that is one of the many functions of criminal law. This is evidenced by Parliament’s criminalization of otherwise “private acts” such as incest, suicide and euthanasia.

Gay rights activists tend to assert their unalienable right to have sex because (1) it is done privately and (2) it does not harm anyone because it is consensual. However, if their assertion of such rights is taken to the extreme, there is simply nothing to stop them from advocating that Singaporeans ought to have the right to commit incest, bestiality or necrophilia. After all, such acts (1) are done privately and (2) can be consensual.

In view of that, the better view is to leave the judgment of moral matters to our elected legislature based on a sense of morality that is common to all of us. Therefore, the government’s retention of s.377a is a clear and unequivocal signal that society in Singapore is still governed by “majoritarian” morals and values to which individual rights are subordinated.
Aidil is a first year law student and an associate editor of the Singapore Law Review.

Emily Choo
As the government has “sought to modernise [the law] to be in line with social mores and emerging societal trends”, a number of changes have been made to the Penal Code. One such change has been the re-scoping of s.377. It is interesting to note that in the consultation paper put forth, it was stated that as part of this re-scoping, the ‘archaic term “carnal intercourse against the order of nature” will be removed.’

The use of the word ‘archaic’ definitely points to a sincere desire by the law to progress with society. It is laudable that our government recognises that some laws are no longer relevant to our times and is trying to meet contemporary societal needs. However, the actual changes made, at least with regards to s.377, is a pitiful and half-hearted attempt at change.

The changes to s.377, relevant to the focus of this article, are as such: “anal and oral sex, if done in private between a consenting adult heterosexual couple aged 16 years old and above, would no longer be criminalised.”

At first blush, it appears that the law has indeed taken one big step forward; now we are no longer bound by draconian views of sex. However, this step seems to be mere patronizing by the government: how can we justify limiting the rescoping to just heterosexuals as being progressive?

Firstly, such acts are to be limited to the privacy of the bedroom. Since it is to be private, why are only heterosexuals allowed their privacy? Would homosexuals having sex in private lead to a global meltdown? Perhaps, homophobes and conservatives might argue that allowing homosexual acts would lead to the erosion of social morals and the government fears offending their sensibilities.

However, I would like to point out that the idea of privacy means that people do not intrude into your life. I find it strange that the mentality of one group should affect the lives of another, why should we care what people get up to in their own bedrooms, as long as no one is hurt? First we invade people’s privacy, then we charge them in court; do we not have our own lives and better things to do?

Another question to ponder is that if consent is needed, why does the consent of two homosexuals not count? It is laughable that the consent of a 16 year-old hormonal heterosexual is held to be of greater value than that of a homosexual adult. This double standard is both unjustifiable and offensive.

In short, the changes to s.377 should be pushed further. We should not be stuck in limbo –- recognising that our laws are archaic, but refusing to make the changes which truly matter.

Emily is a first year law student and an associate editor of the Singapore Law Review. — Juris Illuminae Vol. 3 Issue 3 (January 2007)