PENAL CODE (AMENDMENT) BILL

PENAL CODE (AMENDMENT) BILL: Debate resumed.

6.04 pm

Mr Siew Kum Hong: Mr Deputy Speaker, Sir, I rise to speak on the Penal Code (Amendment) Bill, and on the petition I had presented to Parliament earlier. I will first speak on two aspects of the Amendment Bill not related to section 377A and then on section 377A and the Petition.

The Penal Code is one of the most important statutes that we have because the criminal law touches so many people so intimately. This Bill represents the first review of the Penal Code in 22 years. It seeks to do a lot and yet it leaves so much undone.

The Bill introduces some positive changes. For instance, there is a new offence of sexual grooming. Going by the experience in the UK, this could well become an important weapon in the arsenal against sexual predators, especially those on the Internet.

Another important change is the criminalisation of child-sex tourism, extending to acts performed overseas. Notwithstanding potential issues of enforcement, this will help greatly in closing the door on Singaporeans engaging in such despicable practices.

But, Sir, some aspects of the amendment Bill are not so positive. I will focus on three in my speech.

General increase in maximum imprisonment sentences

Firstly, clause 105 of the Amendment Bill increases the maximum sentences for a number of offences. I echo Ms Sylvia Lim's comments on this increase and would add to them. Sir, depriving a person of his or her liberty is a very serious matter. We should not be hasty in increasing the maximum sentences for so many offences. The general increase in maximum fines is clearly justifiable, even necessary, given that they were last reviewed in 1952.

But while money loses its value due to inflation, there is no equivalent concept when it comes to imprisonment. The intrinsic value of a person's liberty does not diminish over time. If anything, with a higher standard of living and greater economic opportunities today, the opportunity cost of a day in jail is arguably a lot higher now than in the past.

In addition, an excessive maximum sentence could well be oppressive towards accused persons in the manner described by Ms Sylvia Lim. This insidious effect is undesirable, unfair and detrimental to the balance of the criminal justice system.

MHA should therefore provide adequate justification for each increase in maximum sentence. In its public consultation paper last year, MHA has stated that it has "avoided increasing imprisonment terms unnecessarily". It should disclose the different factors considered for each maximum sentence increased, and why it had concluded that the existing maximum sentence was inadequate. It has not done so.

To my mind, it is dangerous to increase the maximum sentences of so many offences, without proper justification. It seems to pay insufficient respect to the fundamental importance of a person's liberty. In the absence of such justifications, I have no choice but to disagree with this aspect of the amendment Bill.

Marital immunity

I now turn to the issue of marital rape. The Penal Code has historically provided an absolute defence of marital immunity. A husband is legally incapable of raping his wife. In other words, regardless of whether or not she consents to sex, regardless of whether or not he forces himself upon her, it is simply impossible in law for a husband to rape his wife.

The Amendment Bill proposes to take a "calibrated approach" in limiting this defence. Marital immunity will now not apply where divorce or separation proceedings have been commenced or completed, or where the wife has applied for or obtained an injunction or protection order against the husband.

MHA's stand is that total abolition of marital immunity would be "too radical" and would change "the whole complexion of marriage in our society", citing "a need to strike a balance between the needs of women who require protection and the general concerns about conjugal rights and the expression of intimacy in a marriage."

Sir, I was flabbergasted when I read that. Perhaps, it is because I am young and unmarried and hold the romantic view of marriage untarnished by its reality. But surely, that is the conception that we should still uphold. The proposed change still sends the message that, in most circumstances, a husband cannot be considered to have raped his wife even if he knew that she did not consent. Under this change, the critical issue for rape in a marriage is not consent, but whether the wife has taken certain legal steps.

MHA talks about "conjugal rights", suggesting that a husband has some sort of right to sex from his wife. This is derived from the archaic view that the wife, by marrying the husband, has irrevocably consented to sex with her husband. This is linked with a view that a wife is the property of a husband.

Sir, such a view has no place in a modern society, not even in a limited form. A man does not have the right to demand sex from his wife at any time. Sex without consent is rape, whether it takes place within or outside a marriage.

To me, it is simple: no means no, and rape is rape. Rape within a marriage is the same as rape outside marriage. In a modern society, marriage is a partnership of equals. We are a modern society. So why are we still retaining this defence, even in a limited form? I cannot fathom that.

MHA also cites "the expression of intimacy in a marriage". Sir, if sex without consent is seen as a permissible expression of intimacy in a marriage, then I fear for marriages and married people in Singapore. What sort of conception of marriage do we have, if the law recognises sex without consent as being legitimate? That cannot be right.

I can do no better than to quote the response of the Association of Women for Action and Research to last year's public consultation paper:

"Rape is not sex, it is violence. No wife who has been raped considers the act to be merely sex. It is a form of violence, aimed at violating the victim in one of the most humiliating manners. To equate sex with rape is to equate a caress with a beating.

Throughout the eighties and beyond, girls were continually warned in schools to be alert for sexual predators, and given the message that rape was the worst possible violation against a woman. It is truly ironic that these same girls, now adult women, are told that they have to subject themselves to this most humiliating of assaults by none other than their husbands."

The Amendment Bill effectively penalises the most vulnerable of wives: those who have no choice but to continue in a marriage, for whatever reason. It says that if a woman has the wherewithal to leave, then we will protect her from rape, but not if she is completely dependent on her husband. That again cannot be right.

For all of these reasons, I disagree with the proposed change to section 375 of the Penal Code. Instead, I urge the Government to repeal marital immunity in its entirety. That is what a modern society needs, that is what fairness requires, and that is what justice demands.

Sir, I now turn to the Petition I presented to this House earlier which argues that section 377A would be unconstitutional upon the repeal of section 377. For ease of convenience, I would refer to section 377A as 377A and section 377 as 377.

The Amendment Bill amends 377 to legalise private, consensual anal and oral sex between heterosexual adults. But 377A which criminalises the same acts between men is retained.

This discriminates against homosexual and bisexual men. The amendment of 377 without also repealing 377A is therefore unconstitutional under Article 12(1) of the Constitution which provides that all persons are equal before the law and entitled to the equal protection of the law. That is because it does not satisfy the legal requirements for derogating from Article 12(1). A valid derogation from Article 12(1) must satisfy the rational nexus test, ie, it must be rationally connected to a legitimate purpose of the statute in question. So we must first consider the purposes of the Penal Code.

The preambles of both the Penal Code and the Amendment Bill are silent on this. So let us turn to what MHA has said. Its public consultation paper on the draft Amendment Bill dated 8th November 2006 stated that: "The review is intended to make the Penal Code more effective in maintaining a safe and secure society in today's context." So, according to the Government, the objective of the Penal Code is to maintain a safe and secure society. But 377A criminalises consensual sexual acts between men even if it takes place in the privacy of their own homes. How does the private sexual conduct of consenting adults make Singapore unsafe or less secure? Furthermore, criminal lawyers generally accept that the criminal law should be concerned with two elements, and two elements only - harm and culpability - of which, only harm is relevant here.

Professor Michael Hor teaches criminal law at the NUS' Faculty of Law. In a recent article, he explained that criminal activity must entail harm to others that is recognisable and tangible. In other words, if an act does not harm others, then it should not be a crime. This is taught to first-year law students in their first few weeks and, indeed, I recall being taught this over 10 years ago. Professor Hor went on:

"The Government has been strangely silent about the harm that section 377A is intended to prevent. Indeed, consistent statements over a number of years from the highest officials of the land lead any reasonable observer to think that the Government no longer believes, if indeed it did before, that the sort of activity contemplated by section 377A is harmful at all. If corroboration were required, it lies in the repeated assurances of the Government that section 377A will not be enforced - apparently because there is no harm to be prevented, no offender to be rehabilitated, no potential offender to be deterred, and no victim to be satisfied.

One might, of course, disagree with the Government's position on the harmfulness of section 377A activity, but once that position is taken, how can it be right for section 377A activity to remain a crime?"

The Law Society, in its submission to MHA on the draft Amendment Bill, similarly noted:

"... the criminal law's proper function is to protect others from harm by punishing harmful conduct. Private consensual homosexual conduct between adults does not cause harm recognisable by the criminal law. Thus, regardless of one's personal view of the morality or otherwise of such conduct, it should not be made a criminal offence."

Private consensual sexual acts between adult males do not impact on the safety and security of society. Furthermore, it is accepted that the criminal law addresses activities that harm others, but the Government seems to think that the activities governed by 377A do not cause harm. So how can 377A possibly be linked to a legitimate purpose of the Penal Code? The answer is that it does not and it cannot. And the Government has effectively admitted this. It does not seek to justify the retention of 377A on grounds of societal safety and security or of harm to others from the conduct contemplated by 377A. Instead, its reasons for retaining 377A are that the majority of Singaporeans disapprove of homosexuality and so 377A should be retained to reflect or "signpost" this majority view of Singaporeans. But reflecting the morality of the majority is not a stated aim of the Penal Code nor is it an accepted objective of the criminal law.

Clearly, then, 377A has no rational connection with any legitimate aim of the Penal Code. Its retention, which leads to different treatment of men engaging in oral and anal sex, and of heterosexual adults doing the same, without any legally acceptable justification, must therefore be unconstitutional. I would even argue that there can be no legitimate aim of the Penal Code with which 377A can be rationally connected so as to justify its retention. The amendment of 377 permits heterosexual adults to engage in private, consensual oral and anal sex. By definition then, we are saying that there is no harm arising from such private and consensual acts between heterosexual adults.

Why should it be any different when those acts are performed between adult men? What is the differentiating factor that leads to harm? There is none. There is no harm that would be recognised by the criminal law. It is not harm that results from such acts being performed between adult men, but the moral disgust that the majority says it feels. But there is a very good reason why the criminal law should not reflect public morality. And that is because doing so can lead to the discriminatory oppression of minorities.

In times past and in other countries, public morality and disgust have been used to justify slavery; discrimination against racial and religious minorities; and discrimination against women, including not permitting them to work or to vote. All of these are now universally recognised as being wrong and immoral. Let us not perpetuate or repeat the mistakes of others in the past.

Sir, the "signposting" argument is fundamentally flawed. It is couched in the language of "the majority". But let us not forget another phrase involving the majority: the tyranny of the majority. That is precisely why the constitutional guarantees of equality and equal protection are entrenched as a fundamental liberty in Article 12(1).

Even if we accept the "signposting" argument, the Amendment Bill seems to reflect public morality in a selective and discriminatory manner. It is surely undisputed that society views extramarital sex as immoral. And, surely, most Singaporeans disapprove of prostitution and all types of discrimination, such as age, racial and gender discrimination. But we have not criminalised any of these.

Indeed, the Amendment Bill even repeals section 498, which makes it an offence for a man to entice, take away or detain a married woman with the intent of having illicit intercourse with her. The reason given is that it is an archaic offence which is no longer relevant in today's context.

But public morality in today's society remains firmly opposed to extramarital sex. So why do we selectively reflect public morality with respect to private, consensual acts between adult men, but not public morality on adultery? Why are we not "singposting" society's disapproval of adultery by retaining section 498, without proactively enforcing it? The Senior Minister of State has argued that repealing section 498 is not an endorsement of adultery or pre-marital sex. In the same way, repealing 377A is also not an endorsement of homosexuality. The inconsistency is discriminatory. And taking the signposting argument to its logical conclusion, if we repeal section 498, are we then telling the world that seducing a married woman, hence leading to adultery, is acceptable? By lifting marital immunity in limited circumstances, are we endorsing marital rape in the other circumstances?

Signposting is all or nothing. We cannot signpost selectively, with some provisions reflecting public morality and others not. It does not work that way. It is a fundamentally flawed argument that does not stand up to logic or reason or the principles of a democratic society, and so we should shy away from it.

Sir, Mr Cheng, a Singapore graduate student in the US, emailed this to me:

"Retaining section 377A on the basis that the 'conservative' majority is uncomfortable with homosexuality sets a dangerous precedence for our society.

It suggests that any majority group can now regulate the private activities of a minority group because it is uncomfortable with it or feels threatened by it.

Imagine what this means for the many majority-vs-minority faultlines within the Singapore society - Chinese vs others, citizens vs non-citizens, heartlanders vs cosmopolitans, a majority religious group vs a minority one.

Breeding the majority group's self-righteousness to demand deference from the minorities will weaken the social cohesion of our society based on mutual respect and tolerance.

The repeal of section 377A will make a clear statement on how, in Singapore, we will always have to find ways to live harmoniously with people who are not like us."

Sir, many people have described the repeal of 377A as a "slippery slope". I think Mr Cheng has identified the true slippery slope that we face today.

For all of these reasons, I believe the continued retention of 377A to be unconstitutional. I think the arguments in the Petition are valid and correct in law, and so I presented it to Parliament. I humbly ask my fellow Members to consider these arguments and to acknowledge their cogency in this debate.

Sir, that was the Petition. I will now speak on why I support the repeal of 377A, quite apart from its unconstitutionality. Contrary to how many have sought to frame the issue, the repeal of 377A is not a gay issue. It is not about gay rights. It is not just for gays, friends or relatives of gays. No. It is about fairness, justice and non-discrimination. It is about tolerance, understanding and inclusiveness. It is about upholding the fundamental protections afforded by the Constitution, the basic pillars underpinning our country. These are issues for all Singaporeans.

The response to the Petition bore this out. The signatories were a broad and diverse group, showing that the issues cut across all lines and resonated universally with people. Straight and gay, male and female, young, middle-aged and old, civil servants, professionals and students, religious and non-religious, they all signed the Petition. They all understood the guiding light of treating others as you want them to treat you. They were united by the common belief that 377A is unfair, unjust and wrong, and hence should be repealed. And such lengths they went to, to convey the strength of their belief. So many, including straight men, went out to collect signatures on their own accord, without being asked, completely voluntarily. An 18-year-old student collected 70 signatures. Two others collected 150 signatures each. Madam Tan, a 63-year-old mother of two heterosexual sons, collected signatures from her peers. She took it upon herself to do so. She believed that she needed to do it, "for a healthy attitude towards life". She collected five signatures.

Apart from the Petition, there was also an online open letter to the Prime Minister calling for a repeal of 377A. This open letter, which collected 8,120 signatures, was handed to the Prime Minister's Office earlier today. A Mr Goh signed it, and he articulated the universality of the issue when he wrote:

"I must admit that I am somewhat 'homophobic', but I believe that nobody should be discriminated against for his belief or, in this case, sexual inclination. If they make me uncomfortable, I just don't mix in their social circle."

I do not know anything about Mr Goh, but I am humbled by his principled stand against discrimination. It is the right and noble path, standing fast to our principles even in the face of personal dislike. Surely, we can all learn from him.

Sir, the Government has stated that it will not proactively enforce 377A. This may be meant as a compromise, but it is unsatisfactory and problematic. The Law Society has pointed out that this position is an admission that 377A is out of step with the modern world, adding that it risked "bringing the law into disrepute".

I also quote Professor Michael Hor:

"The moral force of the criminal law is blunted if there are crimes which are, the Government assures the public, never to be enforced, and its 'perpetrators' never brought to court and punished.

The criminal laws are the ground rules of our society and if it is to be accorded the respect it deserves, it must be reserved for conduct which the Government considers to be clearly harmful to society."

Sir, the Senior Minister of State has noted that there have been convictions under 377A for cases involving abuse of young persons and acts performed in public. And I completely agree that such instances and such acts should remain criminalised. But 377A, as it now stands, is not limited to those situations and it covers private consensual acts between adults as well. If the Government intends to criminalise only the abuse of young persons and public acts, then 377A should be amended to do this. But it is not being amended.

Furthermore, not proactively enforcing 377A does not mean that its retention is without cost. The Government says that it seeks to reflect the moral values of the majority, but what about the human cost to gay persons and their families? What about the cost to Singapore from those who leave Singapore because of this law? What price, this reflection and endorsement of public morality?

The majority of Singaporeans seem to speak as if the non-enforcement of 377A means that everything is fine. But the majority would say that because they are not the subjects of discrimination, because they are not the minority who have to live under the threat of 377A, which is a sword of Damocles that could fall with a change of policy by the Government of the day.

Sir, let me share with this House the pain voiced by some signatories of the online open letter. Madam Mak is a 69-year-old mother of a gay 40-something son. He and his partner have lived with her for over 13 years. She called them "the best things" that had happened to her in her 69 years in Singapore. She wrote:

"Please tell me, Mr PM, why are you teaching me to be ashamed of them? If this country doesn't want them, where can they go? Please tell me."

Madam K, a civil servant, wrote:

"My son is gay. He came out to me when he was 22. And I was upset and I blamed myself for why my son is gay... I blamed myself all the time. But he is my son. He has not changed since the first day I gave birth to him or

the person he is today. I love him for who he is, for what he is. It sickens me that people think suggests that just because he is gay, our family is not what it is. We are a family. What people do in their private lives should not be an issue to anyone as long as it does not harm anyone else. He does not know I am doing this but I support this repeal. He is my son and he is not a criminal. If I can accept him, his mother who gave birth to him, who are these people who so quickly judge him and condemn him?"

A doctor, who signed off only as "criminal doctor", wrote:

"I am a doctor. People tell me that is a noble profession. My parents are proud of me. My teachers are proud of me. But I am ashamed of myself. Why so? Because I am gay. It does not matter how many lives I save, it does not matter how much suffering I relieve, it does not matter how much good I do, it does not change one shameful fact. I am a criminal doctor."

Sir, please bear with me as I quote one last person. Mr Choo questioned the consequences of repealing 377A. He questioned whether, if 377A was abolished, those who supported its retention would suffer. He asked if they would be, and I quote,

"... "living in constant hardship, hysteria, agony and pain, distress and shame, fear of marriage breakdown, upset with public safety and order", simply due to the knowledge that someone else is legally behaving in what they regard as "gross indecency" in some other bedroom?"

Mr Choo went on:

"Let us be honest and look where the tears and wounds really are. Talk is cheap, anger is free, but pain is costly. And often, such truly divisive loss as section 377A cost lives."

And then, there are those who leave. If we truly believe that every Singaporean counts, if we truly believe that every Singaporean matters, and surely we must when people are our only natural resource, then have we counted the cost of all of those who have left us? I will cite only one example, to show how heavy the cost to Singapore can be.

Mr Alex Liang emailed me a few months back. He is a former Singaporean who has renounced his citizenship and is now a UK citizen. By all objective measures, Mr Liang is someone who would have served the country very well. We had invested heavily in him. He received a sports award for three years running, and was also a humanities scholar. He represented the country in gymnastics, receiving generous training allowances. He speaks eight languages and had excellent academic results. But the moment he completed National Service, he left for Europe and he stayed there. He had long decided to leave Singapore, as he did not see a viable future for himself in Singapore as a gay man.

Sir, I ask again, "What price, this effort to "signpost" the views of the majority?

Even if we want to signal the majority's disapproval of homosexuality, we do not need to retain 377A. It can be done through other means. Repealing 377A does not mean that society endorses or approves of homosexuality.

Let us learn from the example of the Censorship Review Committee. Its 2003 report noted the distinction between "allowing" and "endorsing", stating that allowing certain content is quite different from, and should not misinterpreted as, an endorsement. The same reasoning applies here.

In any event, this House should be leading and not following. We should lead by example. We should be doing what is right, fair and just, what is constitutional and keeping in spirit with Singapore's cherished principle of equality and non-discrimination. We pride ourselves on doing the unpopular but right thing, so why are we abdicating our responsibilities now?

Sir, I get a little emotional when I hear the "signposting" argument. That is because it claims to signpost values held by this House and by Singaporeans. It purports to proclaim the values that I, as a Member of this House and, as a Singaporean, believe in and want to proclaim.

But what are these values? What is this majority view, what does the majority whose values we want to "signpost" think and say?

For that, I turn to the keep377a.com website. It was set up to solicit signatures for an online open letter in support of 377A. Let me just read some of the messages that have been posted on this website.

Mr Deputy Speaker: Order. Mr Siew, you have three minutes more. Please wind up.

Mr Siew Kum Hong: Yes, Sir. Instead of reading their comments, I will just talk about what I feel that this House should do. I ask this House to "signpost" the values of fairness, justice, non-discrimination, openness and inclusiveness, which are values fundamental to a secular democracy. I ask this House to endorse the view that our people should feel free to express diverse views, pursue unconventional ideas, or simply be different, that ours must be an open and inclusive Singapore, and that we should build a nation where every citizen has a place, where all can live in dignity and harmony. And if those words sound familiar, that is because those were the very words of the Prime Minister in his swearing-in speech in August 2004.

These are the right things to do. Some have said that Singapore is not ready, that this is not the right time. I disagree. I say that there is no wrong time to do the right thing. Now is the time, not to do the pragmatic or easy thing, but to do the right thing. Now is the time, to turn our backs on prejudice, discrimination, intolerance and hatred. Now is the time, for this House, which represents all Singaporeans, to lead by example. Now is the time, to uphold the noble ideals of our founding fathers, ideals upon which our country was founded and which hold our society together. The ideals of a democratic society, based on justice and equality. The ideal of all persons being equal before the law, and all persons having the equal protection of the law. Now is the time, to do the right thing and repeal 377A.

Sir, with that, and for all the reasons I have stated in my speech, namely, the increase of so many maximum sentences without adequate justification, the retention of the marital immunity, albeit in a limited form, and the failure to repeal 377A, I oppose the Penal Code (Amendment) Bill.

6.33 pm

Ms Indranee Rajah (Tanjong Pagar): Mr Deputy Speaker, Sir, I rise to speak in support of the amendments in the Bill. Before I go on to my main points, may I just address some of the points that have been raised by Mr Chiam See Tong as well as by Mr Siew Kum Hong.

First, Mr Chiam made the point that the penalty for negligence was too harsh and he equated it to just being negligence. The point I would like to make is that negligence under the Penal Code is not mere negligence. It is criminal negligence, and criminal negligence carries with it a higher degree of negligence than civil negligence. For that reason, the penalties that go with criminal negligence have to be higher and have to be reflective of the fact that it is criminal, not civil.

Mr Chiam then made the point that now that life sentencing has been clarified to mean an actual life sentence, perhaps, we ought to reconsider the death penalty. He cited the example of Great Britain which has done away with the death penalty as well as countries in Europe. Yet, it always amazes me that when people point to Great Britain and Europe and they talk about the doing away of the death penalty, they never, in the same breath, also talk about their crime rates. They should compare the crime rates in Great Britain and the crime rates of countries in Europe, with the crime rates in Singapore, crime for crime. I think it cannot be disputed that the crime rates in Europe are higher than ours and that the incidences of violent crimes are much more than ours.

Mr Chiam also called for the abolition of the death penalty for drug trafficking. He suggested that we should instead have life imprisonment and he pointed to Europe again. I would like to say in response that in Europe, I think, in many countries, it is considered that they have lost the battle against drugs. In Singapore, that is not the case. We have more than held the line, we have pushed back the frontiers and we have, in fact, managed to make great inroads into containing the drug problem. So for those reasons, I would not agree that the death penalty should be done away with.

I turn now to the comments made by Mr Siew Kum Hong, both in respect of his Petition and section 377A itself. I think I can have some sympathy with the concerns that the gay community or the homosexuals in Singapore have, but I would like to address some specific legal points made by Mr Siew. The entire basis on which the Petition rests is that it is a violation of Article 12(1) of the Constitution which provides that all persons are equal before the law and are entitled to the equal protection of the law. But actually, the submission that has been made by Mr Siew is not quite correct in its interpretation and taken out of context. What Article 12(1) really means, by way of an illustration, would be this. If somebody is charged with theft, for example, you cannot say that, " I will prosecute you if you are a homosexual, but I would not prosecute you if you are a heterosexual." That would be an unequal and discriminatory application of the law. So that is what it means when you say that all persons are equal before the law. We do not look at your sexual orientation in determining whether or not you should be prosecuted or you should be charged.

Article 12(1) of the Constitution and the provisions on equal protection do not mean that the same law applies to every group. An example of this is section 376A on sexual penetration of a minor under 16, irrespective of consent. Because, for someone above 16, you look at consent and you see whether or not that person consented, and then it is fine. But in the case of a minor under 16, there is no consent. The minor may well say, "But the law says that all persons are equal before the law. I am under 16. I give my consent. You should treat me equally as an adult." But we do not argue with that. And why do we not argue with that? We do not argue with that because we recognise that minors are a special group and have to be treated differently and they require certain protection.

Of course, that comes to the issue of whether or not you should treat homosexuals differently. I would come to that in a moment, but I just want to address another legal submission made by Mr Siew which is that we can have a departure from Article 12(1) if there is a rational nexus or legitimate purpose for the statute in question. Then, he went on to say that the purpose in question for the amendments in the Penal Code is that Singapore is a safe and secure society and there is no rational nexus between the keeping of section 377A to this stated purpose.

The first thing I would say is that that purpose was a purpose stated in the public consultation paper of the proposed Penal Code amendments. It does not come from a statute and it is not part of legislation. It is very obviously a summary of the purpose of the amendments. But if you want to take that sort of argument, then what about the distribution of pornographic material? You could, if you want to take the same argument, say that distribution of pornographic material has nothing to do with a safe and secure society as it is not a threat to persons and property. But all of us accept that distribution of pornographic materials is something that should be regarded as an offence. So in exactly the same way, it is the broader concept of what we regard to be a safe and secure society. When we look at the safety and security of Singapore, we also look at the question of public morals, public decency and public order.

Mr Siew also talked about public morality as being the wrong touchstone. I think he said that public morality has been cited as the basis for legislation to enforce slavery, discrimination against racial and religious minorities, discrimination against women, etc. But in a way, that exactly proves the point. At the time when they had slavery, there were laws in place which reflected the public morality of that time. If you had been in America at that time when they had slaves and you had said to somebody, "You should not have slaves because slavery is wrong", nobody there, at that time, would have agreed with you because the society was such that that was the correct thing at that time. And that is precisely the point because societies do evolve. Clearly, we have evolved to a stage where we now regard slavery as wrong. We certainly regard discrimination on racial and religious grounds as wrong. But in some places, that is still regarded as correct, which just brings us back to the point that in each case, it is a question of what society is prepared to accept.

I come to what is Singapore prepared to accept. I do not think we want to have a situation where we demonise homosexuals. We certainly do not want to regard them as anything less than Singaporeans. But the point is: what does our society want for itself? Societal rules are not purely a matter of free choice. A murderer could say he is free to kill but society disagrees. Murder is a crime. The right to free speech, for example, does not extend to vilifying another race or religion. And once you have different groups that live in a society, you have to accept that there will be some restrictions on behaviour, and particularly so in Singapore, where we have a small land area and a population of diverse races, religions and beliefs. If we have a difference of views then, what do we do?

One group says, "I want this". Another group says, "No, I want that." How do we decide? We have to come down to a decision one way or another and, in most cases, we would go with the majority view, unless there is a reason to protect the minority position. So, under the Constitution, for example, there is no discrimination on the basis of race or religion. Why? Because society as a whole accepts that there should be no discrimination on the basis of race or religion. But that is not the universal principle. That is something we accept here, but there are some countries where there is institutionalised discrimination on the basis of either race or religion as part of their official policy. And for those countries, they consider it right. But in Singapore, we do not. So, in each case, we have to consider what the society regards as the correct or the right way to decide for that society, and particularly so in a State like Singapore which is a secular state. A secular state's position should be that we go with the majority view unless there is a particular reason to uphold the minority position, and legislation has to be a reflection of the societal norms and what is acceptable to that society.

In this case, the public reaction has shown that the majority of Singaporeans do not agree with or accept homosexual behaviour. I think it will be fair to say that most Singaporeans do not want to see somebody jailed for homosexual practices, but most would definitely not want to see any public demonstration of the conduct. They may be prepared to tolerate it if it is done in private, but they do not wish to see it in public and, very importantly, they do not wish to have their children see it in public. Then, of course, the argument comes, "OK, fine, if we do not do it in public, what if we just do it in private?" And that is where the signalling concern comes in, because people are concerned about the impact that a repeal of section 377A would send.

Many Members may recall that some years back, the Senior Minister had made the statement that the civil service would not discriminate against gays. And that was a progressive statement because it indicates that the civil service would not discriminate against employing a homosexual just because he is a homosexual. That was already an advance of a public position from what we had 20 years ago. I do not think the Government would have made such a statement like that 20 years ago. That shows that we have evolved to some extent where a statement like that can be made. But immediately after that statement was made, I had a number of pastors coming to speak to me to say, "Why is the Government endorsing homosexual behaviour?" The Government was not endorsing. The Government was saying that we would not discriminate against a homosexual in terms of employment because he is a homosexual. But the immediate public perception, at least for many people, was that it is just not discrimination, it is an endorsement. And our society, obviously, has not arrived at the stage where we can just separate the two. It is not as easy as that, and people see it as an important form of public signalling. Therefore, the stance which the Government is taking is, in fact, an exact reflection of what Singapore society in general think, which is that if you really have to do it in private, the Government and the Police will not take a proactive enforcement policy but, at the same time, we do not want to send a message to everybody that this is correct, because we have to take into account the majority view. And I think that many liberal groups have, for a long time, thought that the Government was exaggerating the extent of the conservatives in Singapore, but that is not so. I appreciate Mr Siew's point that there were many people who would have written, emailed or given support to the Petition on the Internet. But I can tell you that for every one of those, there was someone who emailed us as Members of Parliament to say, "Do not repeal. Keep it. We thank the MPs, we thank the Government for keeping this law."

Sir, when we have a situation like that, when we have one group that feels very strongly to keep the law, and another group that feels strongly to do away with it, what do we do? We have to make a decision. And the obvious decision in such a situation is to maintain the status quo , and to recognise that somewhere along the line, the situation may evolve. It may well change, just as the position on slavery changed, just as the position on a woman being a chattel changed, thank goodness, just as many other things have changed along the way.

Actually, we think about it, that was the conclusion that the Workers' Party arrived at. Members will recall that Ms Sylvia Lim said that the Workers' Party had debated it for a long time, and they basically could not arrive at a consensus. And because they could not arrive at a consensus, they figured that they should let the status quo remain. And until such time when society is ready to move, the Government's position is the correct position, which is - let things develop but, in the meantime, obviously, they have signalled that they will not actively prosecute, although that may be different if the act is done in public, and it certainly may not be the case if a minor is involved. In that way, it is a compromise of sorts, but we always have to have a compromise when we live in a society where there are diverse groups.

Having dealt with section 377A, I just want to make two other points. I want to comment on the sexual offences which protect minors, especially vulnerable ones, and this is what I call the 376 series. I think these are laudable amendments.

I just want to make a comment on section 376B, which is commercial sex with a minor under 18 overseas. I think this is a particularly good and timely amendment. And I think that at the time it was being considered, one of the considerations was the difficulties of enforcement and whether or not something like that could be effectively enforced. The recent case of the paedophile Christopher Neil who was caught in Thailand after cooperation by the public and with the use of technology and the Internet. I think this is an indication of promise that we can have effective enforcement of this particular section. With technology, with public cooperation, I think it would be easier to have enforcement of this section than we had previously thought. And that would be a very good thing, because for far too long, we have people who are living in Singapore who do not do anything wrong here as far as commercial sex with minors is concerned, but they go into the neighbouring region and they perform these acts with minors which are heinous, reprehensible and abhorrent. For too long, they have been able to maintain that hypocrisy of staying here and maintaining a perfectly respectable facade whilst going overseas and conducting these abhorrent activities. This, in my view, is a particularly apt amendment and one that I would certainly support.

The last point I just want to talk about is on section 375 and marital immunity. On this, I think I would have to align myself with all the others who have spoken before to ask the Government to reconsider and still have retention of parts of marital immunity. The fact that certain inroads have been made into marital immunity is good. But I think the point is that the reality is violence would have occurred before any of these exemptions would have come about before someone gets an interim judgment for divorce, before he gets interim judgment of nullity or before he gets a personal protection order, there would have been occasions where there have been domestic violence and very often a case of marital rape. In many instances, women are afraid to step forward and take the formal steps of estrangement, which may result in all these formal orders taking place. So, I would strongly argue that whilst marriage is a prima facie indication of consent, it does not mean that when the marriage in ongoing, the wife must be deemed to have consented on all occasions. And in my respectful view, removing marital immunity altogether would send a strong signal that sexual relations in a marriage should be based on mutual consent and be an incentive for both partners to conduct themselves accordingly.

With that, Sir, I support the amendments.

6.50 pm

Prof. Thio Li-ann (Nominated Member): Sir, two camps championing two distinct criminal law philosophies are polarised over whether to retain or repeal section 377A, which criminalises public or private acts of gross indecency between two men, such as sodomy.

The "liberal" camp wants section 377A repealed. They offer an "argument from consent", "Government should not police the private sexual behaviour of consenting adults." They opine that this violates their liberty or "privacy". They ask, "Why criminalise something which does not "harm" anyone; if homosexuals are born that way, isn't it unkind to "discriminate" against their sexual practices?"

These flawed arguments are marinated with distracting fallacies which obscure what is at stake. Repealing section 377A is the first step of a radical, political agenda which will subvert social morality, the common good and undermine our liberties.

The "communitarian" camp argues from "community values". These social conservatives want section 377A retained, to protect public health, morality, decency and order. A "Keep 377A" online petition attracted over 15,000 signatures after a few days.

Like many, I applaud the Government's wisdom in keeping section 377A which conserves what upholds the national interest. "Conservative" here is not a dirty word connoting backwardness; environmental conservation protects our habitat; the moral ecology must be conserved to protect what is precious and sustains a dynamic, free and good society.

The welfare of future generations depends on basing law on sound public philosophy. We should reject the "argument from consent", as its philosophy is intellectually deficient and morally bankrupt.

Sir, the arguments to retain section 377A are overwhelmingly compelling and should be fully articulated, to enable legislators to make informed decisions and not be bewitched by the empty rhetoric and emotional sloganeering employed by many radical liberals, which generate more heat than light.

The real question today is not "if" we should repeal section 377A now, or wait until people are ready to move. This assumes too much, as though we need an adjustment period before the inevitable. The real question is not "if" but "should" we ever repeal section 377A. It is not inevitable; it is not desirable to repeal it in any event. Not only is retaining section 377A sound public policy, it is legally and constitutionally beyond reproach. Responsible legislators must grapple with the facts, figures and principles involved; they cannot discount the noxious social consequences repeal will bring.

Debate must be based on substance and not sound-bites. Let me red-flag four red herrings.

First, to say a law is archaic is merely chronological snobbery.

Second, we cannot say a law is "regressive" unless we first identify our ultimate goal. If we seek to ape the sexual libertine ethos of the wild wild West, then repealing section 377A is progressive. But that is not our final destination. The onus is on those seeking repeal to prove this will not harm society.

Third, to say a law which criminalises homosexual acts because many find it offensive is merely imposing a "prejudice" or "bias", boldly assumes that no reasonable contrary view exists. This evades debate. The liberal argument which says sodomy is a personal choice, private matter and "victimless crime" merely asserts this. It rests precariously on an idiosyncratic notion of "harm". But "harm" can be both physical and intangible; victims include both the immediate parties and third parties. What is done in "private" can have public repercussions.

Fourth, legislators are urged to be "open-minded" and decriminalise sodomy. However, like an open mouth, an open mind must eventually close on something solid. Legislators are urged to be "objective" and to leave their personal subjective beliefs at home, especially if they hold religious views that homosexuality is abhorrent. This demand for objectivity is intellectually disingenuous, as there is no neutral ground, no "Switzerland of ambivalence" when we consider the moral issues related to section 377A, which require moral judgment of what is right and wrong - not to take a stand, is to take a stand! As all law has a moral basis, we must consider which morality to legislate. Neither the majority or minority is always right, but there are fundamental values beyond fashion and politics which serve the common good. Religious views are part of our common morality. We separate "religion" from "politics", but not "religion" from "public policy". That would be undemocratic. All citizens may propose views in public debate, whether influenced by religious or secular convictions or both; only the Government can impose a view by law.

By the way, one does not have to be religious to consider homosexuality contrary to biological design and immoral; secular philosopher Immanuel Kant considered homosexuality "immoral acts against our animal nature", which did not preserve the species and dishonoured humanity.

The issues surrounding section 377A are about morality, not modernity or being cosmopolitan.

What will foreigners think if we retain 377A? Depends on which foreigner you ask. Many would applaud us! Such issues divide other societies as well! A group of Canadians were grieved enough to issue an online apology to the world "for harm done through Canada's legalisation of homosexual marriage", urging us not to repeat their mistakes. These debates are not closed locally or globally. Singapore is an independent state, we can decide our own laws; we have no need of foreign or neo-colonial moral imperialism in matters of fundamental morality.

Sir, there are no constitutional objections to retaining 377A while de-criminalising heterosexual oral and anal sex. Three legal points are worth making.

First, there is no constitutional right to homosexual sodomy. It is not a facet of personal liberty under Article 9. Nor is there a human right to homosexual sodomy though some like to slip this in under the umbrella of "privacy." Human rights are universal, like prohibitions against genocide. Demands for "homosexual rights" are the political claims of a narrow interest group masquerading as legal entitlements. Homosexual activists often try to infiltrate and hijack human rights initiatives to serve their political agenda, discrediting an otherwise noble cause to protect the weak and poor. You cannot make a human wrong a human right.

Second, while homosexuals are a numerical minority as a social fact, there is at law no such thing as "sexual minorities". Activists have coined this term to draw a beguiling but fallacious association between homosexuals and legally recognised minorities like racial groups. Race is a fixed trait. It remains controversial whether homosexual orientation is genetic or environmental, perhaps both. There are no ex-Blacks but there are ex-gays. The analogy between race and sexual orientation or preferred sexual preferences, is false. Activists repeat the slogan "sexual minority" ad nausem as a deceptive political ploy to get sympathy from people who don't think through issues carefully. Repetition does not cure fallacy.

Science has become so politicised that the issue of whether gays are "born that way" depends on which scientist you ask. You cannot base sound public philosophy on poor politicised pseudo "science".

Homosexuality is a gender identity disorder; there are numerous examples of former homosexuals successfully dealing with this. They claim a right of sexual reorientation. Just this year, two high profile US activists left the homosexual lifestyle, the publisher of Venus , a lesbian magazine, and an editor of Young Gay America. Their stories are available online. An article by an ex-gay in the New Statesmen this July identified the roots of his emotional hurts, like a distant father, overbearing mother and sexual abuse by a family friend; after working through his pain, his unwanted same-sex attractions left. While difficult, change is possible and a compassionate society would help those wanting to fulfill their heterosexual potential. There is hope.

Singapore law only recognises racial and religious minorities. Special protection is reserved for the poor and disadvantaged; the average homosexual person in Singapore is both well educated, with higher income, that is why upscale condo developers target them! Homosexuals do not deserve special rights, just the rights we all have.

"Sexual minorities" and "sexual orientation" are vague terms covering anything from homosexuality, bestiality, incest, paedophilia. Do all these minority sexual practices merit protection?

Third, 377A does not breach the Article 12 guarantee of equality. While all human persons are of equal worth, not all human behaviour is equally worthy. We separate the actor from the act. In criminalising acts, we consider their wrongfulness, the harmfulness and consequences on society.

Parliament has the power to classify; this involves a choice, like distinguishing murder and manslaughter. Classifications which satisfy the constitutional test of validity are called "differentiation"; only invalid classifications are called "discrimination". Criminalising same-sex sodomy but not opposite-sex sodomy is valid "differentiation". 377A does not target any specific actor; it would cover a heterosexual male experimenting with male sodomy.

Valid classifications must have a clear basis and be rationally related to a legitimate purpose. In serving public health and public morality, 377A passes constitutional muster with flying colours.

Sir, public health and safety is a legitimate purpose served by the 377A ban on homosexual anal and oral sex. Both these practices are efficient methods of transmitting sexual diseases and AIDs/HIV which are public health problems. These are not victimless crimes as the whole community has to foot the costs of these diseases.

Anal-penetrative sex is inherently damaging to the body and a misuse of organs, like shoving a straw up your nose to drink. The anus is designed to expel waste; when something is forcibly inserted into it, the muscles contract and cause tearing; fecal waste, viruses carried by sperm and blood thus congregate, with adverse health implications like "gay bowel syndrome", anal cancer. "Acts of gross indecency" under 377A also covers unhygienic practices like "rimming" where the mouth comes into contact with the anus. Consent to harmful acts is no defence, otherwise, our strong anti-drug laws must fall as it cannot co-exist with letting in recreational drugs as a matter of personal lifestyle choice.

Opposite-sex sodomy is harmful, but medical studies indicate that same-sex sodomy carries a higher price tag for society because of higher promiscuity and frequency levels. The New York Times reported that even informed homosexuals return to unsafe practices like bare-backing and bug-chasing after a health crisis wanes. A British Study showed that the legalisation of homosexual sodomy correlated with an upsurge of STDs among gays. Common sense tells us that with more acceptance, any form of consensual sexual behaviour increases. Sodomy laws have some deterrent effect.

It is rational for the state to target the most acute aspect of a problem. The legal issue is not whether the state should be concerned with heterosexual sodomy but it is reasonable to believe same-sex sodomy poses a distinct problem. Medical literature indicates that gays have disproportionately higher STD rates, which puts them in a different category from the general public, warranting different treatment.

The onus rests on opponents of 377A to negate every conceivable basis for treating homosexual and heterosexual sodomy differently. They cannot, because classifications do not need to be perfect and can be under-inclusive; valid classifications only need to 'go some way' to serve the legislative goal, which 377A clearly does.

Sir, the power to legislate morality is not limited to preventing demonstrable harm. The Penal Code now criminalises the wounding of both religious and racial feelings. 377A serves public morality; the argument from community reminds us we share a way of life which gives legal expression to the moral repugnancy of homosexuality. Heterosexual sodomy, unlike homosexual sodomy, does not undermine the understanding of heterosexuality as the preferred social norm. To those who say that 377A penalises only gays, not lesbians, note there have been calls to criminalise lesbianism too.

Public sexual morality must buttress strong families based on faithful union between man and wife, the best model for raising children. The state should not promote promiscuity nor condone sexual exploitation. New section 376D criminalises the organisation of child-sex tours. Bravo!

The "argument from consent" says the State should keep out of the bedroom, to safeguard "sexual autonomy". While we cherish racial and religious diversity, sexual diversity is a different kettle of fish. Diversity is not licence for perversity. This radical liberal argument from consent is pernicious, a leftist philosophy based on radical individualism and radical egalitarianism. It is unworkable because every viable moral theory has limits to consent.

Radical individualism would demand decriminalising consensual adult incest; but the Penal Code is not based on consent as section 376F reflects. The State has always retained an interest in regulating conduct in the bedroom - the issue is, which type?

Radical egalitarianism applied to sexual morality says the State should not morally distinguish between types of consensual sex. It exudes a false neutrality but actually sneaks in a substantive philosophy: hedonism which breeds narcissism. This extols satisfying desire without restraint as a matter of autonomy. But some desires are undesirable, harming self and society.

The argument from consent ultimately celebrates sexual libertine values, the fruit of which is sexual licentiousness, a culture of lust, which takes, rather than love, which gives. This social decline will provoke more headlines like a 2004 Her World article called: "Gay guy confesses: I slept with 100 men, one of them could be your hubby." What about the broken-hearted involved? If you argue from consent, how can you condemn any form of sexual self-expression, no matter how selfish or hurtful? No man is an island. Ideas, embodied in laws, have consequences. Do not send the wrong message. Clearly, the issues raised in the Petition fall apart on rigorous analysis.

Sir, Government policy is not to pro-actively enforce 377A. Some argue that just keeping this law on the books will erode the rule of law. I disagree. It is not turning a blind eye on the existence of homosexuals here; it is refusing to celebrate homosexuality while allowing gays to live quiet lives. This is prudent, as enforcing "bedroom" offences is difficult and such powers must be used judiciously.

We have other hard-to-police laws which embody communal standards of decency, such as laws against nudity visible to the public eye, even if you are at home. Law is a moral teacher and makes a moral statement; six years ago, Singapore symbolically blocked access to 100 Internet porn sites, as a "statement of our values." We value our values, while remaining realistic. A non pro-active policy does not mean 377A will never be enforced, who knows what another season may require? Policies can change.

Sir, citizens are not just concerned with the rule of law but with the rule of good law. Laws which violate core moral values will alienate many and bring the system into disrepute. Indeed, many citizens see keeping 377A as evidence the Government is defending the right moral values, which lends legitimacy.

Sir, it is true that not all moral wrongs, such as adultery, are criminalised; yet they retain their stigma. But adulterers know they have done wrong and do not lobby for toleration of adultery as a sexual- orientation right.

Conversely, homosexual activists lobby hard for a radical sexual revolution, waging a liberal fundamentalist crusade against traditional morality. They adopt a step-by-step approach to hide how radical the agenda is. Liberals never ask: what happens next if you repeal 377A? Responsible legislators must see the big picture.

Pro-gay academics identify five main steps in this agenda in foreign country studies.

Step 1: repeal laws criminalising homosexual sex. They consider this pivotal to advancing the homosexual agenda. Why? Without this, they cannot advance in the public sphere or push for government funding and support for special programmes, such as the New York Gay High School. Governments do not promote criminal activities. You need to change the criminal law before changing civil law.

But decriminalising sodomy is only " bing shan yi jiao ", the tip of the iceberg, 12% of an ice mass. We must see what lies beneath the water to avoid a Titanic fate.

Step 2 is to equalise the age of consent for heterosexual and homosexual sex; in some countries, this is as low as 13. Do we want to expose Secondary 1 boys to adult sexual predators? To be sexually creative?

Step 3 is to prohibit discrimination based on "sexual orientation". But would this not include all sexual behaviour? "Sex before 8 or else it's too late", is the motto of the North American Man Boy Love Association. Should we judge paedophilia or be relativist and promote "anything goes" sexual experimentation?

Sir, to protect homosexuals, some countries have criminalised not sodomy, but opposition to sodomy, making it a "hate crime" to criticise homosexuality. This violates freedom of speech and religion; will sacred texts that declare homosexuality morally-deviant, like the Bible and Quran, be criminalised? Social unrest beckons. Such assaults on constitutional liberties cannot be tolerated.

Steps 4 and 5 relate to legalising same-sex marriage and child adoption rights. This subverts both marriage and family, which are institutions homosexuals seek to redefine beyond recognition. Will MOE then commission a book copying the American, "Heather has 2 mummies" called "Ah Beng has 2 daddies"? What if parents disagree with their kids studying homosexual propaganda?

Is legalising same-sex marriage progressive? It is, if you want a genderless planet where "husband" and "wife" are considered discriminatory terms, to be replaced by "spouse". We want to be able to say, Majulah Singapura, not Mundur Singapura!

Repealing 377A will further batter the institution of "marriage" which we must bolster! This is because the arguments raised to challenge a distinction between heterosexual and homosexual sodomy, equally apply to challenge legal distinctions between lawful heterosexual marriage between man and wife and unlawful homosexual unions.

To reinforce the moral foundations of a pro-family policy that permits only heterosexuals to marry, it is permissible to differentiate between heterosexual and homosexual sodomy. To say that section 377A discriminates is effectively to say that marriage laws discriminate and are unconstitutional.

Legalising sodomy would set a bad example; by signalling approval, it may change both attitude and conduct; coupled with sexual hedonism, it makes a mockery of strong family values. Section 377A helps to protect against this harm.

Academic supporters of the homosexual agenda, like my colleague Michael Hor, argued online that even if section 377A was not enforced, discriminatory policies against homosexuals could be built on the logic of its existence. But taking his logic, repealing section 377A would mean the Government would be less able to resist claims for homosexual marriage or for promoting homosexuality as a desirable lifestyle in schools, as this would be "discriminatory". These foreign developments warn us that the advance of the homosexual agenda here is not remote.

To slouch back to Sodom is to return to the Bad Old Days in ancient Greece or even China where sex was utterly wild and unrestrained, and homosexuality was considered superior to man-women relations. Women's groups should note that when homosexuality was celebrated, women were relegated to low social roles; when homosexuality was idealised in Greece, women were objects not partners, who ran homes and bore babies. Back then, whether a man had sex with another man, woman or child was a matter of indifference, like one's eating preferences. The only relevant category was penetrator and penetrated; sex was not seen as interactive intimacy, but a doing of something to someone. How degrading.

It was only when marriage was invented by the Jewish Torah that the genie of sexual impulses was forced into the marital bottle, so that sex no longer dominated society - this discipline provided the social base for the development of western civilisation. Family is also the building block of our society.

As fellow citizens, homosexuals are entitled to expect decent treatment from the rest of us; but they have no right to insist we surrender our fundamental moral beliefs so they can feel comfortable about their sexual behaviour. We should not be subject to the tyranny of the undemocratic minority who want to violate our consciences, trample cherished moral virtues and threaten our collective welfare by imposing homosexual dogma on right-thinking people. Keep 377A.

Sir, we Singaporeans will continue to debate and disagree over controversial moral issues as they arise. We should make substantive arguments and not think about our feelings; the media should present both sides fairly, without bias.

However, I have noted a disturbing phenomenon over the 377A debate - the argument by insult. Instead of reasoning, some have resorted to name-calling to intimidate and silence their opponents. People with principled moral objections to the homosexual agenda are tarred and feathered "homophobes", "bigots", to shut them up. This strategy is unoriginally imported from foreign gay activists, which stifles creative thinking and intellectual enquiry.

When you shout and call your opponents nasty names, this terminates public debate. No one wants to be called a bigot. But think about it - if I oppose incest, am I an incestophobe? If I oppose alcoholism, am I a winophobe? If having an opinion means you are a bigot, then we are all bigots! What is your phobia?

Where certain liberals accuse their opponents of being intolerant, they demonstrate their own intolerance towards their opponents! They are hoist on their own petard, guilty of everything they accuse their detractors of! Full of sound and fury, signifying nothing.

One of my colleagues, a young professor, suffered these vicious tactics when the Straits Times published an article this May where Yvonne Lee argued against repealing 377A. This well-researched, cogent article so incensed homosexual activists that they flooded her with a torrent of abusive, lewd emails and wrote to her Department Head calling for her to be removed from her job. This appeared to be a coordinated campaign.

We academics are used to disagreement, but why write to her employer and threaten her livelihood? Why vilify someone and seek to assassinate their personal and professional reputation? I hope this House joins me in deploring these malicious attacks which also assault academic freedom. She is owed an apology. I would be ashamed to belong to any academic institution that cravenly bowed down to such disgraceful bully-boy tactics.

This August, I had my own personal, unpleasant experience with this sort of hysterical attack. I received an email from someone I never met, full of vile and obscene invective which I shall not repeat, accusing me of hatemongering. It cursed me and expressed the wish to defile my grave on the day 377A was repealed.

I believe in free debate but this oversteps the line. I was distressed, disgusted, upset enough to file a Police report. Does a normal person with a conscience to filter impulses, go up to a stranger to express such irrational hatred?

Smear tactics indicate the poor quality of debate and, also, of character. Let us have rational debate, not diatribe and deception, free from abusive rhetoric and childish tantrums. As Singapore approaches her Jubilee, my hope for the post-65 generation is that we will not become an uncivil civil society born from an immature culture of vulgarity which celebrates the base, not the noble.

Mr Deputy Speaker: Order. You have three minutes left, Prof. Thio.

Prof. Thio Li-ann: Thank you. I speak at the risk of being burned at the stake by militant activists. But if we do not stand for something, we will fall for anything. I was raised to believe in speaking out for what is right, good and true, no matter the cost. It is important in life not only to have a brain, but a spine.

One of my favourite speeches by PM Lee, which I force my students to read, is his Harvard Club speech two years ago where he urged citizens not to be "passive bystanders" in their own fate but to debate issues with reason and conviction. I took this to heart. To forge good policy, we need to do our homework and engage in honest debate on the issues. Let us also speak with civility, which cannot be legislated, but draws deep from our character and upbringing. Before government can govern man, man must be able to govern himself.

Sir, let speaking in the public square with reason, passion, honesty, civility, even grace, be the mark of a Citizen of Singapore. [ Applause. ]

7.20 pm

Mr Alvin Yeo (Hong Kah): Mr Deputy Speaker, Sir, thank you for allowing me to take part in this debate at this late hour. After such powerful moving speeches from our two Nominated Members of Parliament, one is tempted to remain silent. But allow me to respectfully add my perspective.

In the run up to this debate, I read an interview or feature in the New Paper where Mr Siew Kum Hong was asked for his personal background and his reasons for bringing this parliamentary Petition. He replied that his personal background was irrelevant to the issue and that he was bringing this Petition as he supported the principle of equality of treatment, including for those who engage in homosexual conduct.

I should say that I agree with Mr Siew that one's personal background is simply not relevant to the issue and, personally, I applaud Mr Siew for his willingness to subject himself to intense media and public scrutiny for a principle he subscribes to. I say that one's own background and indeed one's own personal views are not what is really important. Because our role as Members of this House is to represent not so much our own views, but those who have placed us in this position of responsibility. This means that one has to take account of not just the minority views but the majority views as well, to not just listen to the vocal, the articulate, the high profile spokesmen for their various causes, but to try and discern the views of the vast and silent segments of the population whose views and feelings run just as strong.

It is generally accepted that a large portion of the population remains uncomfortable with, even troubled, by homosexual behaviour. The Straits Times ran a poll where something like 70% expressed discomfort with these views. Those of the Muslim faith, many with Christian beliefs, oppose the condoning of homosexual conduct. Do their views not have to be taken into account? Is this tyranny of the majority? Some commentators think that it is outmoded for our laws to reflect the moral and social values of the people it governs. I disagree.

In our nation which has, as one of its ingrained principles, the rule of law, indeed it is usually considered one of our competitive strengths as well, the law stands, not just as a boundary line of what conduct will or will not be prosecuted, but as a moral compass of what we stand for. It is a benchmark of our values, our beliefs, not just a reference book to determine when we can sue and when we can be sued. That is why our courts, in interpreting the law, have always required parties to observe not just the letter of the law, but also its spirit and its purpose.

In this regard, I do take issue with the two points that Mr Siew, notwithstanding his forceful and loquacious arguments, has made. The first is that, because the Ministry has said that section 377A will not be proactively enforced, it is an admission that no harm results from it. I think other speakers, more eloquent than me, have spoken of the social and psychological and moral harm that can result from embarking or slipping down the slippery slope. I prefer to think that the stand of the Ministry is not because they recognise that there is no harm, but because they wish to show some degree of tolerance to those who subscribe to different views to give them some space in their personal lives. But they are standing firm on what the principles and beliefs that our society stands for in continuing to have this law on the statute books.

Mr Siew also says that he does not agree with this "signposting" argument because, to him, signposting is an all-or-nothing approach. Again, I have to respectfully disagree. There are certain key markers in all our laws which reasonate through the fabric of our society more than others. For instance, how many of you have heard of section 498 which has to do with enticing a married woman, and how many of you consider that doing away with that law means that this House is permitting adultery or promiscuity? Certainly, from all the press reports, none of them seem to labour under the misimpression that the non-repeal of section 377A was what that particular signpost was about.

One of the points made is about equal treatment for all before the law, including homosexuals, which I think is the central plank of the petition that has been presented. Equality before the law is a fundamental concept. But it cannot be looked at in vacuum. It does not deprive a state, a government, of regulating what it considers to be proper and correct behaviour. It is equal rights for all, as measured against the values and beliefs of our society. And our society is a multi-religious, multi-racial and multi-cultural one. So, for instance, we have an Administration of Muslim Law Act which imposes a separate regime on Muslims in family and estate matters. Yet, we do not hear complaints about unequal treatment from either Muslims or non-Muslims. It is accepted as part of our multi-cultural, multi-religious Singapore.

To take another more recent example, the Human Organ Transplant Act (HOTA), where Muslims are not subject to the same opting-out provisions on account of their religious beliefs.

Even then, discussions and consultations are going on within the Muslim community and outside, to remove this particular difference. Again, the principle of equal treatment of all has to be moderated by our aim of preserving harmony among our different races, of mutual respect for each other's beliefs. I do not believe that anyone seriously contends we should not continue to uphold this.

Having said that, there may be something to be learnt from HOTA and the discussions relating to its possible change. To those who support the removal of section 377A, it is an object demonstration that laws can and do change based on a reconciliation of different views. But such changes, particularly where they involve deeply-held deep-seated religious and moral beliefs, do take time and they cannot be forced. Indeed, I hope that all concerned in this particular lobby effort will be patient and understand that the views of others do count as well and try to give this issue more time and not let it be something that divides our society.

Overall, Mr Deputy Speaker, Sir, the changes to the Penal Code may keep it more relevant to this day and age and are to be welcomed.

Mr Deputy Speaker, Sir, I support the Bill.

7.29 pm

Mr Hri Kumar Nair (Bishan-Toa Payoh): Mr Deputy Speaker, Sir, thank you for allowing me to join in this debate at this very late hour. I promise to be very brief.

I rise to support the Bill. A major overhaul of the Penal Code was timely, and the Ministry of Home Affairs has obviously put in much effort and thought to the amendments. I particularly commend the new laws to protect minors from sexual predators, whether here or abroad, and I support the amendments fully.

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.

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