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M
Ravi
"In the
end, it is not that the 'homosexual agenda' should dictate law
reform but that basic civil rights are a necessary part of an
open and thriving multicultural Singapore...The fundamental
question is not whether one finds homosexuality morally
offensive, it is whether the concept and practice of
non-discrimination, like justice, should be extended to all."
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Vantage
No
place for discrimination in Singapore: A reply to Yvonne Lee
M
Ravi
07 May 07
In her Straits Times piece
"Decriminalising homosexual acts would be an error"
(see below), Professor Yvonne Lee sets out two tests for the
constitutional validity of discrimination against certain sectors
of society, in this particular instance against homosexuals: One,
that the the classification must have a rational basis and, two,
that the law must serve a legitimate purpose which is reasonably
related to the basis for the classification.
In the first
instance, it must be remembered that there is no rational basis
for such a classification because the law itself is outmoded as
the recent legislative amendment to decriminalise "unnatural
sex" shows.
Of course, I should not have to point
out that many heterosexuals engage it "unnatural sex"
as much as homosexuals do. What is "saucy" for the
goose is also "saucy" for the gander. It is inherently
unfair to outlaw a practice for one group while allowing that
very practice for another. This is where Professor Lee's
contention for "acceptable discrimination" breaks down.
Furthermore, one's sexual orientation is for one to
choose. The ability to choose defines one's sense of being. It is
the right of an individual to self-determination. Take it away
and you are left with a corpus without spirit or mind. And just
as heterosexuals are left free to determine the lifestyles they
want to lead (for example, turning to vegetarianism, taking up
extreme sports, or exercising some New Age belief and practice)
why should homosexuals be deprived of their right to
self-determination? Even transsexuals are not prohibited from
altering their gender.
The fundamental right of the
individual to pursue his or her natural inclination when they do
not interfere with the rights of others is paramount.
Further,
the don's statement that the "law should not facilitate acts
which threaten public health" is just as problematic. Under
such a principle, should we also not prohibit the sale of tobacco
products and ban smoking? After all, it is undisputed that
smoking is a public health hazard which affects smokers and
non-smokers alike.
She also makes the argument that
sodomy is an unhealthy act that carries higher risks of sexually
transmitted infections and hence should be disallowed for gays.
This is itself highly discriminatory as many lesbians and
heterosexuals also practice sexual acts that gays perform. This
is precisely why Section 377A violates the equality
provision.
Professor Lee also has a problem with setting
age limits for the practice of homosexual acts. Again, if the
minimum age can be set for heterosexual practices, what is the
difficulty of doing the same for homosexual practices? Setting
the minimum age is not license for one individual to rape another
just because both parties are over the age limit. It is to ensure
that minors are protected. How does setting the age limit for
homosexual acts be detrimental to society? Many acts, such as
drinking, driving and voting, specify age limits, why should
homosexual acts be any different?
To say that gay-rights
activists will seek to "mainstream" the homosexual
agenda is to completely miss the point. The question should be
whether it is right or wrong to continue suppressing the voice of
the homosexual community and the attendant discrimination, not
whether the lobbyists seek to mainstream their agenda. This type
of argument was used against the blacks in America decades ago
when African-Americans were discriminated against. Going by
Professor Lee's logic, whites in the US should be absolutely
appalled by the prospect of having a black president.
It
is most pernicious that the Professor compares homosexuality with
bestiality and paedophilia. We are discussing the rights of a
community who want their lifestyles decriminalised, in other
words, that they not be made criminals simply for who they are.
Paedophiles force themselves on children, homosexuals practice
their sexuality between consenting adults. The difference is
quite clear.
While it remains "unscientifically
unproven" that individuals are born gay, there is a
substantial body of evidence that supports the position that
people are gay by nature. And since when is legislation of
societal behaviour in Singapore dependent on scientific proof?
Was it scientifically proven that better-schooled women produced
smarter babies? Did that stop the social-engineering that took
place through legislation in this country? This is the mother of
all discrimination and the father of all irrationality.
And
contrary to professor Lee's argument, it does not follow that if
society accepts gays for who they are by decriminalising
homosexuality, this will inevitably lead to the sanctioning of
same-sex marriages. A great many liberals and civil rights
enthusiasts in the West support the non-discrimination of gays
and even civil unions, but not gay marriages.
Professor
Lee's point about religious leaders having the right to say to
their congregations that homosexuality is wrong is well taken.
Their right to express themselves should also be defended. Free
speech is a dialogue amongst differing, and very often
passionate, views. It is not a strident monologue delivered by
the majority.
In the last paragraphs of her article,
Professor Lee rubbishes the comparison between adultery and
homosexuality, stating that the former does not "foist"
its lifestyle on the public unlike the latter. It must be pointed
out that adultery presents a far greater threat to the
institution of the family than homosexuality. Yet, escort
agencies and massage parlours openly advertise for business, and
they do not restrict themselves to singles. And it is no secret
that prostitutes openly ply the lorongs of Geylang in
search of clients, many of whom can be presumed to be married
with kids. Why does Professor Lee not call for prostitution to be
made illegal in Singapore and actively seek the demise of the sex
trade?
The truth is that if a heterosexual male is
inclined to pay for sex, he will know where to seek it. If he is
not, then he will not be moved even if prostitutes paraded
themselves before him. Similarly if he is not attracted to gay
sex, no amount of cajoling or "foisting" will make him
want to go to bed with another man.
In the end, it is not
that the "homosexual agenda" should dictate law reform
but that basic civil rights are a necessary part of an open and
thriving multicultural Singapore. Minority rights like homosexual
rights are fundamental constitutional rights which must be
protected and this is where constitutional law ought to play its
active role. If the Malays and Indians are, in principle, not to
be discriminated against in this country, then that principle
should be extended to the gay community as well.
The
fundamental question is not whether one finds homosexuality
morally offensive, it is whether the concept and practice of
non-discrimination, like justice, should be extended to
all.
Finally Constitutional Law in Singapore can only
evolve if law professors make themselves available for debate. It
is crucial that the Faculty of Law at the National University of
Singapore not become a cloistered institution but one that seeks
to grow in breadth and depth. To do this an open debate on this
issue is essential.
M Ravi is a Singaporean lawyer
and has been involved in several civil rights issues and cases
including the legality of the mandatory death penalty in
Singapore.
Decriminalising homosexual acts
would be an error
Yvonne C. L. Lee
The Straits Times
04
May 07
Readers of The Straits Times have written in to
question the rationale for the criminalisation of homosexual
acts. It is imperative that we understand the legal and broader
social implications, and that Parliament, in the forthcoming
debate on the Penal Code reform, carefully considers these
implications.
The Home Affairs Ministry has indicated that
Section 377A of the Penal Code (S377A) will be retained. S377A
prohibits the commission of gross indecency by one male person
with another male person. Opinions have been expressed that S377A
may be unconstitutional because it discriminates against
homosexuals by criminalising homosexual sex and not oral and anal
sex committed by heterosexuals or lesbians.
This is an
over-simplistic reading of the equality
clause.
Context
Firstly, the legal meaning
of equality must be understood within its social context.
Equality is not an absolute value. Extreme applications of
equality impair community interests and violate the rights of
others. Furthermore, the Constitution does not prohibit all forms
of discrimination.
Like cases must be treated alike, but
Parliament may enact measures which differentiate between
different groups. The courts hold that such measures must satisfy
two tests to be constitutionally valid: Firstly, the
classification must have a rational basis. Secondly, the law must
serve a legitimate purpose which is reasonably related to the
basis for the classification.
Each differentiating legal
measure serves a social objective. For example, a married
individual with four children enjoys higher tax relief than one
without children. The public good is to encourage married couples
to have more babies.
To view the issue of S377A
exclusively as a matter of equality omits the broader context --
that rights can clash with other rights and community
values.
When they do, Parliament may pass laws which
reflect the public good in preference over the rights of the
individual or groups.
Any argument to decriminalise
homosexual sex must consider the harmful social consequences. For
example, would affirming homosexual sexual practices serve the
common good? It is a known medical fact that homosexual
intercourse or sodomy is an inherently unhealthy act that carries
higher risks of a number of sexually transmitted infections. The
law should not facilitate acts which threaten public
health.
Moreover, any reform to the Penal Code must
preserve fundamental values which serve the public good, instead
of abstract notions of equality or fashion.
Broader
agenda
Recent developments in foreign jurisdictions
like Canada, Sweden, the United Kingdom and the United States
indicate that the move to decriminalise homosexual sex is the
first step in a broader homosexual rights agenda to transform
social morality:
+ If S377A is repealed, homosexual sex is
legitimised, transformed from a crime into an 'alternative
lifestyle'.
+ The minimum age for sodomy must then be
specified. This opens the door for homosexual lobbyists to pursue
the next step of equalising the age of consent for homosexuals
and heterosexuals. The current age of consent for homosexual sex
in countries which have decriminalised sodomy ranges from 13 to
18, covering Singapore males from Secondary 1 to junior
college.
+ The third step is re-conceptualising
homosexuality as a civil right in the name of equality. As an
'alternative lifestyle', homosexual lobbyists will seek for this
to be endorsed and 'mainstreamed' into society (for example,
arts, education, entertainment and media), beyond the privacy of
the bedroom. The current view that 'sexual orientation' should
not be a basis for discrimination is problematic. 'Sexual
orientation' is a vague term covering a range of sexual
expressions, including paedophilia and bestiality. Also, the
assertion that one is 'born gay' is scientifically unproven.
+
An active homosexual agenda has engendered clashes with
fundamental liberties such as free speech and religious liberty.
Christian pastors have been criminally prosecuted for sermons
declaring that homosexuality is a sin, a view also held by
Muslims and many non-religious people who consider homosexuality
unnatural and morally repugnant. Attempts have been made to
extend 'hate speech' laws to the Bible and Quran.
People
who oppose the homosexual agenda are branded as intolerant,
bigoted, homophobes, or hateful towards homosexuals who are
merely 'different'. This does not promote free speech but seeks
to censor it. If this intolerance against religion is imported
into multiracial and multireligious Singapore, this will breed
social divisiveness.
+ The final step involves attempts to
redefine 'marriage', the fundamental institution and bedrock of
many civilisations. The redefinition is a radical reconstruction
of 'marriage' - no longer a union between man and woman but
includes 'same-sex marriage'. Homosexuals must then be allowed to
marry someone of the same sex and be given the benefits of
marriage such as tax benefits, adoption of children and/or
state-funded access to alternative 'reproduction' methods.
The
argument that decriminalising homosexual sex will not cause a
change in moral attitudes is erroneous. It has been suggested
that even after adultery was decriminalised, it remained morally
reprehensible. So too, decriminalising homosexual sex will not
cause a shift in moral attitudes.
While the law embodies a
moral judgment, it is not always prudent for the law to punish
all immoral behaviour. However, to draw an analogy between
adulterers and homosexuals is fallacious. Adulterers do not seek
societal approval, but certain homosexual activists campaign to
alter the public mindset and to gain legal and social endorsement
of the gay lifestyle.
The fact is, under the proposed
Penal Code reform, homosexuals wishing to lead private lives may
do so, provided they do not foist their homosexual acts on the
public.
S377A is a legitimate statement of the values of
our society. In constitutional terms, equality claims operate
within a broader social context.
Homosexuality is
offensive to the majority of citizens. Allowing an aggressive
homosexual rights agenda to dictate law reform ignores the nature
of Singapore's multireligious, multiracial community. Such an
agenda would be divisive. Therefore, the attention given to
fundamental moral values of the majority of citizens by retaining
S377A in its entirety strikes the right balance.
The
writer is an assistant professor who teaches company law and
constitutional law at the Faculty of Law, National University of
Singapore. The opinions expressed are the author's own.
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