Felix Cohen "I think courts generally try to make noises like slot-machines and to give the impression that they are not legislating. People don't swear at slot machines the way they do at other human beings."- "Dialogue on Private Property" (1954) 9(2) Rutgers L. Rev. 357 at 382."theories are always other people's; what we ourselves believe is always fact or insight or experience or the law."- ibid., at 376.hmmm. The Impossibility of Being a Criminal Lawyer "You can't be a good criminal lawyer if murder horrifies you, and if it doesn't horrify you, then what are you then?"- Ally McBeal (26 April 1998)Of course Ally meant that you would "then" probably not even be human, but there is of course that lawyer joke:Q: What's the difference between a lawyer and a sperm cell?A: The sperm cell has one chance in a million of becoming human.And you know all that jazz about jokes being not completely innocent but related to the unconscious and all that Freud stuff... it's all made taking lawyer jokes seriously become serious business: see Marc Galanter, Lowering the Bar: Lawyer Jokes and Legal Culture (University of Wisconsin Press, 2006). Coming soon. Experienced sweet and sour... I'm a little surprised that Today ran this photo, because it sort of legitimizes what the SDP does. People always ask, "Why are they doing all this? Why can't they just mind their own business?". And SDP finally provides the answer, although of course the answer was obvious all along:That Today chose to run this photo is a sign of its progressiveness. But even then, the photo paints a disorganised, not-yet-quite-ready image of the SDP, with people pointing all over the place trying to get their placards straight. So maybe the message is: they love Singapore, but come on, there's no way they can run it like the PAP can. Sympathise, legitimize, but ultimately, dismiss, out of hand. The SDP website, of course, posted a better picture:Anyway, since we're in the mood for love, allow me to share some of the stuff I stash in my iPod at this time of the year:1. Kit Chan - There's No Place I'd Rather Be (2007): 2. Tanya Chua - Where I Belong (2003?): 3. It's the Little Things (1992). If you're around my age, you might remember this one. It's one of my favourites, but I don't know who sang it. New Addiction. You'll never trust my taste again. Moins vif. One of Ravel's best melodies is the Moins vif from the Valses nobles et sentimentales. Very sweet; very tender; yet somewhat playful; almost Prokofievian. In this video, you'll have to fast-forward till about 2'09 to hear it. This one was recorded by Krystian Zimerman. The one I grew up listening to is Pascal Rogé's, which I would still pick over anyone else's. Rogé is the only one who dares to bring to the surface the wobbly harmony that belies the melody. And when it gets broad, Rogé's is the only one that soars. The rest never really quite take flight. Rogé's isn't available on Youtube, so this is the next best. This joyous roundelay. I hadn't read anything by Peter Carey before, so this was a real gamble especially since I would normally stay a million miles away from any book that screams "Love Story" on its cover. But it was a very enjoyable read. Hugh is a character that one can't fail to fall in love with. Which reminds me of a friend who told me I was to fall in love with Juno, despite her shortcomings. I most certainly did not. But perhaps that was because I watched a lot of other movies around the same time: Away from Her, P.S. I Love You, Happy Together, etc. The Juno soundtrack is also particularly irritating because the music doesn't ever fit the words. It's kind of like that part in the Roses are Red, Violets are Blue song where they go "Is that your......littlegirl......She looks......alotlikeyou" and I just groan. Which reminds me. Music and Lyrics should be watched. Internet Deregulation Recently, a group of Singaporean bloggers submitted a paper to the Government, outlining proposals for internet deregulation. I've been trying to collect everything that's been written about the effort, but I've started rather late, and the work is a little daunting. I'll keep updating as I go along, but meanwhile, if you've noticed that I haven't linked something, please leave a comment or email me. Enjoy.New this week (updated 30 June 2008):Another stupid "anti-community moderation" trash article (Little Bird)The Incredible Unlikeness of Being of The Sedition Act – A Critique on “Deregulating The Net.” [1] [2] (FILB)The Proposal:Proposals for Internet freedom in Singapore [PDF]Process and Structure:Bloggers’ group proposes sweeping changes in Internet regulation (Press Release)Bloggers to send ideas on internet regulation to govt (Today)Key concerns about internet deregulation emerge at forum (Yawning Bread)A real grassroots initiative by bloggers (Aaron Ng)When Good is not so Good – A Study in Consultative Affirmative Action (Brotherhood Press)What is Really Wrong With the G-15 Proposal? (Brotherhood Press)The Fish For A Day Project - Dissecting the only critical article of the 20-page proposal by 15 bloggers to MICA (Little Bird)Superman's 'Right' to Blog Anonymously (Brotherhood Press)My Inalienable Right to Remain Anon (Brotherhood Press)Do not forget the moral of U Turn signs (redbean)Community Moderation:Community Moderation as an alternative to Internet Regulation in Singapore (Bernard Leong)Internet Content Consultative Committee (Gerald Giam)Community Moderation: Thoughts from the Internet Regulatory Reform Seminar (Bernard Leong)Why we need a bottom-up internet content consultative committee (Cherian George)The Fallacy of Community Regulation [1] [2] [3A] [3B] [3C] [3D] (Brotherhood Press)One Battery Chicken Life Coming Up in the Net? (Brotherhood Press)Internet deregulation seminar (One dimensional island)After thoughts on the Proposals for Internet freedom in Singapore (Starry Nite)Another stupid "anti-community moderation" trash article (Little Bird)Racial and Religious Hate Speech:Maintaining Racial and Religious Harmony through Criminal Law (Mohan Gopalan)Why I dissented to the Bloggers’ proposals on the Regulation of Hate Speech on the Internet (Ng E-Jay)The Incredible Unlikeness of Being of The Sedition Act – A Critique on “Deregulating The Net.” [1] [2] (FILB)Films (Political or otherwise):Why the Films Act should be trashed (Yawning Bread)Political Films and the Ruling Party (Gerald Giam)The Economics about Banning Political Films (Bernard Leong)For voters, politicians, lift ban on political films (Choo Zheng Xi) MICA's Response - Lighter Touch:MICA's reply to bloggers’ Proposals for Internet freedom in Singapore (with commentary by Ng E-Jay)Govt looking at lighter touch on Net (Straits Times)From light to lighter: Government signals direction of Net regulation (Cherian George)Touchy Bloggers or Govt? (The Void Deck)Not yet classified:Prosecute or nothing (Yawning Bread)The pigeons are already among us (Yawning Bread)Internet freedom: Rights come with responsibilities (Mok Wing Tat)Internet should not be subject to the law over and above those that apply in real life (Ng E-Jay)Responsibilities and Regulations (Benjamin Cheah)Global Trends on Blogger Arrests for 2008 (Bernard Leong)Bureaucratic ambiguity and Internet freedom (Straits Times) Let people form body to oversee net content (Straits Times)Rationality vs political expediency in internet policy (Arun Mahizhnan)Freedom in the Net (Sam)Why my right to privacy is ultimately a matter of choice – Sex, G-15 bloggers and Samizdat (Brotherhood Press)Internet Content: Some control needed (George Lim)Let public lend a hand in confronting Internet excess (Zhong Zewei)The Shattered Dreams of the Blogger 15 [1] [2] (Brotherhood Press)Cyberspace is No Man's Land (redbean)Yay. Feedback on the April 28 article (Little Bird)As a policy proposal it fails (Balderdash) Enchanted. Tomás Luis de Victoria's O magnum mysterium. Once made a little boy wide-eyed with wonder. This performance by Raffles Chorale, conducted by Mr Toh Ban Sheng, in Olomouc. Not perfect (flat in less than 30 seconds; would have been better if altos were male). But still something very magical. The steady decline. Best thing I have heard in a while. Especially the motets. Amazing. Seminar on Internet Regulatory Reform Organised by the Wee Kim Wee School of Communication and Information, NTU"The job of a citizen is to keep his mouth open"- Günter GrassAre Singaporeans satisfied with the state of internet regulation as existing? If not, what changes do we wish to see and how can a bottom-up desire for reform translate into policy review? Can Singapore afford the political and social costs of free speech? Is there a contradiction between wanting freedom for political speech and controls over social speech? Is technology really in the driver’s seat? Are governments powerless in the face of a global internet?Guest speaker: Mr Arun Mahizhnan, Dep. Dir. Institute of Policy StudiesPresentations by members of the Bloggers’ Group for Internet DeregulationChaired by Asst Prof Cherian George, Wee Kim Wee School, NTUDate: Sat, 21 June 2008Time: 2:00 to 5:00 pmVenue: URA Centre, Maxwell Road, Function Hall, Level 5Admission: FreeMedia: Open to reportingTo register (RSVP), please send an empty email to subscribe to irr-singapore-subscribe@googlegroups.com. You will get an email response asking you to confirm your request. Late notices, if any, will come from the Googlegroup. California Supreme Court declares marriage available to same-sex couples I waited till 1am to read this as it came out:"Accordingly, in light of the conclusions we reach concerning the constitutional questions brought to us for resolution, we determine that the language of section 300 limiting the designation of marriage to a union “between a man and a woman” is unconstitutional and must be stricken from the statute, and that the remaining statutory language must be understood as making the designation of marriage available both to opposite-sex and same-sex couples. In addition, because the limitation of marriage to opposite-sex couples imposed by section 308.5 can have no constitutionally permissible effect in light of the constitutional conclusions set forth in this opinion, that provision cannot stand."In Re Marriage Cases, Case No. S147999 (Supreme Court of California) at page 120The court was split 4-3 on this one. Domestic partnerships for same-sex couples were of course already available in California before this decision. What this decision does is to make it possible for them to "marry".More detailed commentary may ensue if I can bring myself to read the whole judgment (172 pages!) in the next few days. Meanwhile, you can wait to see if California will fall into the Pacific Ocean anytime soon.And you know what I just realised... this means that Kevin and Scotty can get married! Like for REAL! Coz they're in California! How cool is that.Update: Alex has got a nice summary/commentary: Gay marriage victory in California Supreme Court. Can google around for the news reports too. Wilde... Okay the film wasn't like super-fantastic or whatever but there were some really cool lines. Like:Well of course there must be censorship! Or people would say they meant and then where should we be?I nearly burst out laughing when I heard that, but apparently no one else thought it was funny and I had to stifle my laughter. Oh well.But I must say, the soundtrack was utterly delightful! OMG. OMG. OMG!!! I swear, when I first started watching this series, from Season 1 Episode 1, I had no idea that it was going to turn out so great.I present to you a groundbreaking moment in the history of television: the wedding of Kevin Walker and Scotty Wandell. Congratulations, guys! Broadcasting Gay Content: Singapore vs. Hong Kong A decision of the Hong Kong Broadcasting Authority claiming that Radio Television Hong Kong (RTHK) had breached the Authority's code of practice was quashed by the Hong Kong High Court on Thursday. The written judgment is available on HKLII: Cho Man Kit v. Broadcasting Authority, [2008] HKCFI 383.The subject of the decision was a TV programme produced by RTHK, called "Hong Kong Connection - Gay Lovers". As the judge noted, the show was a "documentary-style programme which focused on the day-to-day lives of two gay couples, looking to the difficulties encountered in their lives, their fears and their aspirations." The participants also "spoke of their hopes that one day the law in Hong Kong would be changed to recognise a civil union between gay couples." The Authority claimed that the programme breached the Code by presenting views on "matters of public policy or controversial issues of public importance in Hong Kong" without "due impartiality". The Authority alleged that the show was not "impartial" because "The absence of different views on homosexual marriage had the effect of promoting the acceptance of homosexual marriage." Put simply, the allegation was that RTHK had failed to include an anti-gay point of view.What amounts to the promotion of a gay lifestyle?The interesting thing is that although the programme talked about gay couples, their fears, problems and their hopes of marriage, the judge did not think that the programme promoted homosexual marriage, or promoted anything at all, for that matter. He wrote: 81. ... the programme was not about same-sex marriage. It was not, in any way a ‘political’ programme attempting to advance any sort of public cause. The issue of same-sex marriage was an incident in the programme; a material one, yes, but not in any way ‘promoted’ in the active and political sense that the word intends by either those in the programme or those who made it.82. It is true that RTHK did not incorporate opposing points of view as to the issue of same-sex marriage. But, I am satisfied that on any reasonable viewing, the programme manifestly was not designed as a vehicle to ‘advocate’ any particular point of view; that is, to argue for it and press home that argument. ...83. As a study of gay people involved in stable, long-term relationships, it naturally recorded matters that they considered important, such as the hope that one day their unions may receive some form of legal recognition. But the issue, as I have said, was not ‘advocated’ by them. ...84. I would add by way of a broad observation that invariably any portrayal of the human condition will reflect some sympathy with the subject. Such sympathy, however, often no more really than an instinctive empathy, is not to be read as a form of active ‘promotion’ of any aspiration that arises in the course of the portrayal. ...86. As I have said, I am satisfied that the programme did not in any way promote homosexual marriage and that the Authority, in so far as it believed it did, was plainly wrong. ...The programme was thus not "impartial" for the reasons alleged by the Authority. The judge also went on to find that the true reason for the Authority's decision was that it thought that homosexuality would be offensive to viewers. This was not a valid ground for the Authority's decision and by making a decision on this ground, the Authority had misunderstood its own code of practice. It had therefore made an error of law and its decision had to be quashed.Did the Channel 5 show promote a gay lifestyle?Singapore's Free-To-Air Television Programme Code is worded slightly differently from Hong Kong's, but there is a similar requirement for "due impartiality" in news and other factual programmes (para 10.1). More than that, Singapore's Code has specific requirements for gay content: 5.2 Information, themes or subplots on lifestyles such as homosexuality, lesbianism, bisexualism, transsexualism, transvestism, paedophilia and incest should be treated with utmost caution. Their treatment should not in any way promote, justify or glamorise such lifestyles. ...This, of course, is the portion of the Code that Channel 5 was alleged to have violated recently, and for which it was slapped by MDA with a $15,000 fine. MDA's press statement was as follows: The programme "Find and Design" is a home and decor series and in the episode concerned, the host helps a gay couple to transform their game room into a new nursery for their adopted baby. The episode contained several scenes of the gay couple with their baby as well as the presenter's congratulations and acknowledgement of them as a family unit in a way which normalises their gay lifestyle and unconventional family setup. This is in breach of the Free-to-Air TV Programme Code which disallows programmes that promote, justify or glamourise gay lifestyles. The interesting question is whether, by the Hong Kong court's standards, this programme would have been classified as one that 'promoted gay lifestyles'. After all, it was a home and decor show and probably didn't mention anything about gay rights or problems or the desire to have civil unions, which were all present in the Hong Kong show, but which was yet not deemed to promote gay lifestyles. One might also note that in the Hong Kong show, the homosexual theme was clearly in the foreground, while in the show that Channel 5 aired, it probably was not, since the show was mainly about interior design. If the content of Hong Kong show did not amount to a 'promotion of gay lifestyles', it is difficult to see how the show that Channel 5 aired can be considered to have engaged in any such advocacy.Even if we put the Hong Kong court's standards aside, it is questionable whether Channel 5 met Singapore's own standards of what amounts to the promotion of a gay lifestyle. Speaking in Parliament, Minister of State for Information, Communication and the Arts, Dr. Balaji Sadasivan, appeared to be sensitive to the incidental nature of the homosexuality portrayed in the show aired by Channel 5. He said:The TV programme was a programme about home decoration and design. It featured a game room being converted into a nursery. There was no objection to the skills and talent of the designers or to the general entertainment value of the programme. The objection raised does not relate to the main features of the programme but to an incidental feature found in this one episode. The concern was that in the programme the people who were going to live in the redesigned home were two men and a child, not the usual man, woman and child. The viewer can extrapolate what the relationship of the two men may be and then from the extrapolation conclude that family values are not being upheld.Note also that Dr. Balaji's only objection seems to be that family values were not being upheld. This is something quite different from promoting, justifying or glamourising gay lifestyles, which was the allegation made by MDA against Channel 5.Should Channel 5 have challenged MDA's fine in court?Would it have succeeded? Channel 5 could have argued along the same lines as RTHK: that the programme it aired obviously did not promote, justify or glamourise gay lifestyles. Channel 5 could then argue that the real reason for MDA's decision is that, by MDA's own admission, the programme "normalises" gay lifestyles. If "normalisation" doesn't come under "promoting", "justifying" or "glamourising", then MDA made its decision based on irrelevant considerations. It therefore misunderstood its own code; there is therefore an error of law; and MDA's decision ought therefore to be quashed.Plausible? Well, I don't know. There are some background considerations involved in the Hong Kong case which could have been material to the decision. Firstly, what the HongKongers have that we don't is a constitutional right to be free of discrimination on the basis of sex, which has been judicially interpreted to include a right to non-discrimination on the basis of sexuality. Singapore's Constitution has no explicit right to freedom from discrimination based on sex. Secondly, the judgment shows that they obviously have a very strong rights culture, holding the right to free speech in particular in very high regard. Do we? Lastly, the Hong Kong court didn't have moral markers like 377A standing in its way. New 377A Case This nearly escaped me:HIV man admits having oral sex with teenage boyThis is the first case to come to court under the amended Infectious Diseases Act passed last month.By Elena ChongST, 07 May 2008IN THE first case of its kind, an HIV-infected man was charged in court on Wednesday for engaging in oral sex with a 16-year-old boy.Chan Mun Chiong, 43, pleaded guilty to the charge as well as another of committing an act of gross indecency with the teen.The Ministry of Health summons charge states that he had oral sex with the boy without telling him of the risk of contracting HIV infection from him and getting his voluntary agreement to accept that risk.The offence carries a maximum fine of up to $10,000 or jail term of up to two years or both.The bespectacled chef with short spiky hair also admitted to performing oral sex on the boy and with each other at a male toilet cubicle at Northpoint Shopping Centre along Yishun Avenue 2 last Sept 15.He will return to court on Thursday for his case to be dealt with.He is out on $10,000 bail.For the gross indecency charge, he faces a jail term of up to two years.Under amendments to the Infectious Diseases Act passed last month, those found guilty of having unprotected sex even if they do not know but have 'reason to believe' that they have or have been exposed to the virus can be jailed for up to 10 years and/or fined up to $50,000.MOH has investigated previous cases before but none has been prosecuted until Wednesday.One case was compounded last year and the offender has left Singapore.Questions, questions. Firstly, note that there are two charges, one under the Infectious Diseases Act, the other for 'gross indecency' (ie., 377A). If we adopt Alex's classification of 377A cases, there could be a few reasons why 377A was used in this particular case:The sex occurred in a location accessible to the public (Category 3)It involved a partner who was 16 or 17 years old (Category 4)Or it could be the absence of consent (Category 5)Which throws up the question of whether if you consented to the sex, but not to the HIV, did you still consent to the sex? Or was your consent to the sex vitiated by the non-disclosure of the HIV? Or, did you only not consent to the HIV?If the answer is that you only didn't consent to the HIV, but that you consented to the sex, then the charge should only be for non-consensual HIV transmission (which, I think, is the charge under the Infectious Diseases Act). That would also mean that this conviction under 377A is strange because it would be the first consensual prosecution in many years.Lots to think about here. But too bad. The guy's already pleaded guilty. Maintaining Racial and Religious Harmony through Criminal Law Article 14(1)(a) of Singapore’s constitution guarantees to every citizen the right to freedom of speech and expression. Rights are, however, never absolute [yes, cliché], and must often be balanced against community interests which ought sometimes to prevail over those rights.In Singapore, the right to freedom of speech is often at odds with the community interest in maintaining racial and religious harmony. The danger that offensive speech could engender social rifts or civil unrest is ever-present. One of the ways in which Singapore has attempted to deal with this threat is by criminalizing certain types of speech.In this post, I attempt to analyse the relative weights that free speech rights and community interests have been accorded in the individual offences, to see where exactly the criminal law has struck the balance. I also try to show that at least one type of hate speech offence ought to be repealed, and that the penalties for the various offences are in need of re-calibration.A. Constitutional rights, non-constitutional rights and community interestsRights, being rights, should weigh heavily when balanced against competing community interests.1 The right to freedom of speech, in particular, gains additional strength from two other factors. Firstly, it is a right that is generally considered to be crucial to a functioning democracy.2 Secondly, the mere fact that it is enshrined in the constitution puts it on a pedestal as compared to other non-constitutional rights.3 Thus, the right to freedom of speech in Singapore cannot be taken lightly. Curtailment of the right calls for the demonstration of a serious, compelling community interest, and the infringement sought to be imposed ought to be the minimum necessary to protect that interest.With this proposition in mind, we can proceed to evaluate the individual offences to see whether the right to freedom of speech has been accorded its due importance. Focussing on the countervailing interest that is sought to be protected, the offences we are here concerned with can be divided into four categories:The community interest is most compelling in Category 4, where the threat of violence exists (ie., there is tangible “harm”). Comparatively, the community interest is less compelling in Categories 2 and 3, where there is no immediate threat of violence but where the danger of rifts forming between racial or religious groups exists. The community interest is least compelling in Category 1, where the threat is of isolated individuals being personally offended. Here, there is no threat of immediate violence or social rifts. Consequently, Categories 1, 2 and 3 are in need of more careful justification.B. Justifying Category 2 and 3 offencesCriminalizing conduct that falls under Categories 2 and 3 may be justified on two grounds. Firstly, these categories may be said to form a “ring fence” around Category 4-type offences. These categories would therefore enable law enforcers to “nip problems in the bud”. However, this justification would require that there be a volatile climate in terms of racial and religious relations within the population, so that it may be contended that conduct falling within these categories is likely to lead to Category 4-type offences. If the climate is not volatile, then the “ring fence” is just that: it represents an area in which the community interest is not compelling enough to justify restrictions on free speech. Prophylaxis cannot, therefore, be a justification in the absence of volatility.Alternatively, Category 2 and 3 offences may be justified on the ground that preventing racial and religious rifts is in itself a legitimate community objective that ought to trump the right to free speech. This could be because a cohesive society is necessary for the proper functioning of economic systems,4 which is arguably one of the central motivations for mankind’s commitment to forming societies. Societies also need relatively stable political systems to function, and it might be argued that this requires an emphasis on building cohesion and avoiding rifts.However, the mere fact that these community interests in economic and/or political stability exist is not sufficient: these interests must be demonstrated to be sufficiently compelling in order to justify restrictions on free speech. I am not looking to prove how compelling these interests are, and for the present moment I am prepared to accept that they are sufficiently compelling.What I am at present concerned to point out is that these economic and/or political stability-type justifications do not depend on volatility. They would therefore operate as justifications even in a non-volatile climate. Yet, at least in the case of Category 3 offences, volatility does not drop out of the picture completely. In deciding whether particular instances of speech have a “tendency to promote” social rifts, judges must be conscious of the current level of volatility. A higher threshold of proof should be required in non-volatile climates, and vice versa.C. Justifying Category 1 offencesThere are again two possible justifications for Category 1 offences. Firstly, it may be argued that conduct of this nature is a violation of the listener’s right to freedom from offence. Such a right has been recognised judicially in Singapore.5 It is not clear, however, that such an interest ought to be accorded the status of a right, nor that it should weigh heavily in the balance against the right to free speech. This is especially so when it is considered that the right to free speech is a constitutionally guaranteed right, while the right to freedom from offence is not.Even if a right to freedom from offence ought to be taken seriously, the current Category 1 offences do not represent a fair balance of such a right against the right to free speech. Joel Feinberg provides us with a useful list of factors that ought to be considered in this balancing process:6the intensity and durability of the repugnance produced, and the extent to which repugnance could be anticipated to be the general reaction of strangers to the conduct displayed or represented (conduct offensive only to persons with an abnormal susceptibility to offence would not count as very offensive);the ease with which unwilling witnesses can avoid the offensive displays; whether or not the witnesses have willingly assumed the risk of being offended either through curiosity or the anticipation of pleasure;the personal importance to the actors themselves of the offensive behaviour and its social value generally;the availability of alternative times and places where the conduct in question would cause less offense; andthe extent, if any, to which the offense is caused with spiteful motives.One may evaluate the justifiability of Category 1 offences according to how well the offences deal with Feinberg’s 6 factors. The main Category 1 offence in Singapore is section 298 of the Penal Code:Whoever, with deliberate intention of wounding the religious or racial feelings of any person, utters any word or makes any sound in the hearing of that person, or makes any gesture in the sight of that person, or places any object in the sight of that person, or causes any matter however represented to be seen or heard by that person, shall be punished with imprisonment for a term which may extend to 3 years, or with fine, or with both.It will be noted that the section takes into account the motive of the offender (Factor 6), and, to the extent that the subject-matter of the offence is confined to race and religion, it arguably also takes into account the value of the speech (Factor 4). However, the section is not at all concerned with the effect of the speech on the listener (Factor 1) (note that the section does not require that the listener’s feelings be actually wounded), nor with the avoidability of the speech (Factors 2, 3 and 5). The complete omission of these factors (which would in effect weigh in favour of the right to free speech) removes the legitimacy of this section as a limit on free speech in that it accords that right almost no weight at all. Thus, even if freedom from offence could be a sufficient justification for a suitably worded Category 1 offence, it is clear that section 298 cannot claim to be so justified.The second possible justification for Category 1 offences is the “ring fence” argument that was put forward earlier in relation to Category 2 and 3 offences. The argument is that repeated Category 1-type conduct, in a volatile climate, could lead to a Category 2, 3 or 4-type offences. Once again, this argument hinges on the volatility of racial and religious relations at any given time. Category 1 offences envisage isolated conduct, targeted at specific individuals, which in a non-volatile climate has little chance of causing Category 2, 3 or 4-type damage. If the conduct were instead targeted at a larger audience, it would arguably fall within Categories 2, 3 or 4, and no longer within Category 1.It being clear that Category 1 offences depend largely on a volatile climate for their justification, it is high time that we embarked upon an at least rudimentary analysis of the racial and religious climate in Singapore, to get some indication of its current volatility.D. How fragile is Singapore’s social fabric?Racial and religious harmony in Singapore is often thought to be in a precarious position because of various racial and religious riots that took place here between 1950 and 1969. Almost forty years on, the memory of those riots continues to influence parliamentary as well as judicial thinking.7 The post-September 11 threat of religious extremism, coupled with Singapore’s geographical location in a predominantly Muslim region, has also been cited as a reason for taking a tough stance against racial and religious intolerance.8While it is ultimately impossible to gauge with precision the exact contours of racial and religious relations in Singapore, it is submitted that these factors are not good indicators of those relations. The riots that took place in the 1950’s and 60’s are far too old to be of much use in assessing the situation today. The threat of religious extremism remains largely an external one. On its own, it is not at all an indicator of internal relations. While there have been reports of internal threats of religious extremism, these haven been largely isolated and appear to be the exception rather than the rule. These reports do not appear to be accurate reflections of the sentiments of the larger population. Indeed, local political leaders have often stressed that they are not.The results of recent surveys on the perceptions of Singaporeans suggest that racial and religious relations here are not quite as volatile as they are often made out to be. By directly querying the actual perceptions of individuals, these surveys present more accurate reflections of current racial and religious relations than events of the past or external phenomena.For example, a survey conducted by the Institute of Policy Studies in 1989 revealed that Singaporeans were far more racially and religiously integrated than they had been during in 1969, which was the year that the last racial riots took place.9A survey done in 2002 by the Ministry of Community Development and Sports found that 99% of Singaporeans were willing to let their children play with children of other races, up from 98% in a similar survey done in 2001.10 96% thought that it was desirable to have people of different races living in the same neighbourhood,11 and 76% had close friends were not of their own race, up from 70% in 2001.12In 2003, 80% of the respondents in a survey conducted by the Feedback Unit believed that their countrymen would stand united in the face of a terrorist attack, despite their racial or religious differences.13 The figure went up to 90% in a follow-up survey done in 2005.14A more recent survey conducted in 2007 by the Centre of Excellence for National Security found that “inter-racial engagement was by and large robust”, with inter-racial acceptance rates generally being above 90%.15 Inter-religious confidence was also found to be “very sturdy”, with inter-religious acceptance rates similarly exceeding 90% on average.16 The data collected in these surveys indicates that racial and religious relations in Singapore are generally rather resilient. Therefore, the “ring fence” justification for Category 1, 2 and 3 offences is likely to be more akin to paranoia rather than prudent caution. While Category 2 and 3 offences may have an alternative justification independent of volatility (that avoiding rifts is an adequately compelling social goal), Category 1 offences do not, and must therefore be repealed (or suitably amended to be justifiable on a freedom from offence basis).E. PenaltiesFinally, we can take a cursory look at the penalties prescribed for the various offences. The compelling community interest in Category 4 offences dictates that the penalty for those offences ought to be higher than those of the other categories. As can be seen from the table above, this appears to be the case where section 505(c) is concerned, but not where section 298A(b) is concerned.The penalties for offences outside Category 4 depend on their justifications. From the economic and/or political stability standpoint, Category 2 and 3 offences ought to carry a lesser penalty than Category 4 offences, since the community interest that is sought to be achieved is not as obviously compelling as compared to Category 4 offences. If Category 2 and 3 offences are justified on the "ring fence" principle, this again requires a lesser penalty than the Category 4 offences that are meant to be ring fenced. This is not borne out by the current state of the law.Category 1 offences, even if they can be justified on a freedom from offence principle, ought also to have a lesser penalty than Category 4 offences. This is due to mere “offence” in Category 1 being more trivial as compared to “harm” in Category 4.17 The "ring fence" justification, if correct, also dictates that Category 1 offences should have lesser penalties than Category 4 offences. As to whether Category 1 offences should carry a lesser penalty than those of Category 2 or 3, I leave that open (does it matter how wide the "fence" is?). Either way, the table above shows that there is no corresponding calibration of Category 1 penalties, whether in comparison to Category 2, 3 or 4.F. ConclusionThere are miles to go before we sleep.References1 See Ronald Dworkin, Taking Rights Seriously (London: Duckworth, 1977).2 Usually attributed to Alexander Meiklejohn, Free Speech and Its Relation to Self-Government (New York: Harper, 1948). See also Wojciech Sadurski, Freedom of Speech and Its Limits (Dordrecht, Boston: Kluwer Academic Publishers, 1999) at 20-31.3 See, eg., Lord Steyn in Reynolds v. Times Newspapers Ltd (1999), [2001] 2 A.C. 127 (H.L. (Eng.)) at 207G: “By categorising this basic and fundamental right [to freedom of expression] as a constitutional right its higher normative force is emphasised.”4 There are three main reasons for this. First, cohesion tends to promote adherence to the social contract, which is in turn vital to economic development: Stephen P. Heyneman, “From the Party/State to Multiethnic Democracy: Education and Social Cohesion in Europe and Central Asia” (2000) 22(2) Educational Evaluation and Policy Analysis 173 at 174 (“the inability of societies to develop low-cost and effective self-regulating mechanisms for enforcement of social contracts prevents economic development... People are more likely to adhere to social contracts...when they do not consider each other to be cultural “strangers”; that is, when they have more understanding of each other as people, as citizens of the same country...”). Second, cohesion could create a common culture, which would lower transaction costs: Edward P. Lazear, “Culture and Language” (1999) 107(6) Journal of Political Economy S95. Third, cohesion could build trust, which contributes significantly to economic performance: Stephen Knack & Philip Keefer, “Does Social Capital have an Economic Payoff? A Cross-Country Investigation” (1997) 112(4) Quarterly Journal of Economics 1251. This particular need for cohesion could be highly compelling in societies with a high level of ethnic heterogeneity, which tends to correspond with a low level of trust: Edward L. Glaeser et al., “Measuring Trust” (2000) 115(3) Quarterly Journal of Economics 811.5 Public Prosecutor v. Koh Song Huat Benjamin, [2005] SGDC 272 para. 8: “The right of one person’s freedom of expression must always be balanced by the right of another’s freedom from offence...” (per Senior District Judge Richard Magnus).6 Joel Feinberg, The Moral Limits of the Criminal Law: Volume 2: Offense to Others (New York: Oxford University Press, 1988) at 26.7 See Public Prosecutor v. Koh Song Huat Benjamin, supra note 5 para. 6: “...the especial sensitivity of racial and religious issues in our multi-cultural society, particularly given our history of the Maria Hertogh incident in the 1950s and the July and September 1964 race riots...”8 Ibid., para. 6: “...the current domestic and international security climate...”9 “Strong national identity emerging”, The Straits Times (23 September 1990).10 Ministry of Community Development and Sports, Attitudes on Race and Religion [:] Survey on Social Attitudes of Singaporeans (SAS) 2002, http://www.mcys.gov.sg/MCDSFiles/download/SAS02RR.pdf para. 2.27.11 Ibid., para. 2.28.12 Ibid., para. 2.29.13 “S’poreans will stay united in face of terror”, The Straits Times (23 July 2005).14 Ibid.15 Yolanda Chin & Norman Vasu, The Ties that Bind and Blind [:] A Report on Inter-racial and Inter-religious Relations in Singapore (Singapore: Centre of Excellence for National Security, 2007), http://www.ntu.edu.sg/rsis/publications/reports/RSIS%20Social%20resilience%20report.pdf at 17.16 Ibid., at 31.17 Feinberg explicitly acknowledges this: see The Moral Limits of the Criminal Law: Volume 2: Offense to Others, supra note 6, at 3. OMG! Challenging Prosecutorial Discretion in Singapore Sook Zhen has written an insightful piece on prosecutorial discretion in Singapore, quoting at one point the Workers' Party Manifesto 2006, which reads: "the exercise of prosecutorial discretion cannot be reviewed or appealed against."Technically this is not a correct statement of the law.The discretion to prosecute or not for a particular offence lies with the Attorney-General, under Article 35(8) of the Constitution: (8) The Attorney-General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for any offence.In a 1978 Malaysian case that went to the Privy Council (Teh Cheng Poh v. Public Prosecutor, [1979] 1 MLJ 50), Lord Diplock delivering the judgment of the Board referred to a similar provision in the Malaysian constitution and wrote: There are many factors which a prosecuting authority may properly take into account in exercising its discretion as to whether to charge a person at all, or, where the information available to it discloses the ingredients of a greater as well as a lesser offence, as to whether to charge the accused with the greater or the lesser. The existence of those factors to which the prosecuting authority may properly have regard and the relative weight to be attached to each of them may vary enormously between one case and another. All that equality before the law requires, is that the cases of all potential defendants to criminal charges shall be given unbiassed consideration by the prosecuting authority and that decisions whether or not to prosecute in a particular case for a particular offence should not be dictated by some irrelevant consideration.Although Lord Diplock did not explicitly say that prosecutorial discretion was reviewable, he seemed to be suggesting that review was possible on at least two grounds - bias and irrelevant considerations. Later on in the same paragraph he wrote that there was no material on which to found an argument that in the instant case the prosecutor had exercised his discretion unlawfully. Clearly, judicial review was on his mind.Lord Diplock's words have been quoted with approval in the Singapore Court of Appeal at least twice (Sim Min Teck v. Public Prosecutor [1987] SLR 30; Thiruselvam s/o Nagaratnam v. Public Prosecutor [2001] 2 SLR 125).The most recent statement of the law, making explicit the possibility of review, is to be found in the Singapore High Court decision of Law Society of Singapore v. Tan Guat Neo Phyllis [2007] SGHC 207, where Chief Justice Chan Sek Keong wrote:In our view, the exercise of the prosecutorial discretion is subject to judicial review in two situations: first, where the prosecutorial power is abused, ie, where it is exercised in bad faith for an extraneous purpose, and second, where its exercise contravenes constitutional protections and rights (for example, a discriminatory prosecution which results in an accused being deprived of his right to equality under the law and the equal protection of the law under Art 12 of the Constitution).There you have it. Prosecutorial discretion in Singapore can be reviewed. But my concern is that no information will be available upon which the discretion can be reviewed. How are you going to prove bad faith or extraneous purpose if prosecutorial discretion is always exercised behind a closed door and nothing more than the result ever emerges? If prosecutors are not forthcoming in revealing the grounds on which they made their decisions, and if the courts cannot compel them to do so, then judicial review is unlikely to be of any use. Subsidies and Legitimate Discrimination Alex wrote, in his latest article, "Hotel Singapore now officially gay-friendly", under the heading "The right to non-discrimination":Then there are all sorts of tax allowances and subsidies that the state dishes out to legally married couples, who by law can only be opposite-sex couples. For example, an opposite-sex couple can get married and, waving a marriage certificate, avail themselves of tens of thousands of dollars in subsidies when they buy a flat from the Housing and Development Board. A gay couple cannot. How can this be fair?Well, I think it can. This is mainly because there is no inherent right to most subsidies, which are implemented to pursue specific policy objectives rather than matters of principle.Much therefore depends on the purpose for which subsidies are given out. This will determine who ought to be receiving the particular subsidies, which will in turn determine whether there is justifiable discrimination (discrimination is not always illegitimate). As long as subsidies are distributed to individuals in a way that can be said to accord with the objectives of the policy, I (seem to) have no objection.If, for example, the purpose of giving subsidies is to increase the birth rate in Singapore, then surely these subsidies ought not to be given to people who don't reproduce. There is nothing wrong with denying gay people these subsidies, in the same way that there is nothing wrong in denying unmarried heterosexual people of these subsidies.But if you were to deny gay people GST credits, then clearly there's something wrong there. GST credits are for cushioning the impact of increased GST. The objective has got nothing to do with sexual orientation at all, so discrimination on this ground would be unjustifiable.If you're giving out subsidies that people can claim a right to, then things could be different. If, for example, the Singapore government decided to compensate all citizens for the incessant curtailment of their right to free speech, then there can be no discrimination here. Every citizen, being entitled to that right, must be entitled to the subsidy, as of right.The last time I wrote about this was almost a year ago. Sad to say, my ideas are still so half-baked. Oh well. Cut scholarship bond period to stem brain drain: NMP Straits Times, Feb 26, 2008By Grace NgCUT THE length of scholarship bonds and grant tax rebates for the overseas university fees paid by parents whose children return to Singapore after their studies abroad.These measures were suggested by Nominated MP Loo Choon Yong in Parliament on Tuesday to help stem Singapore's brain drain.Noting that about 1,000 talented young Singaporeans leave the country annually to study and work overseas, Mr Loo feared that these people 'may be lost to Singapore permanently' if they settle overseas after studying there.While he supported the notion that these Singaporeans must return to serve the country, he added that the current policy of scholarship bonds is 'counter-productive' and urged the Government to review the policy.Bonds can be kept short and capped at about three years. Scholars can also be bonded to serve Singapore in both the public or private sector, rather than just the Government, suggested Mr Loo.In this way, scholars who choose to work in the civil service would do so willingly, attracted by the excellent compensation and improved work environment in Government agencies, as well as the pride of serving Singapore, he said.The scholarships must 'not be instrument for converting free Singaporeans into indentured Singaporeans', he said.In light of the current shortage of places at local universities, Mr Loo also suggested that the Government consider giving tax rebates to parents who send their children to approved overseas universities, when they return here to work.These tax rebates can be to 'the tune of the subsidy for fees at local universities'.This will help to grow the local talent pool and give more Singaporeans a chance at tertiary education, said Mr Loo.'If we lose our young, we will have nothing,' he said. Better Hours for Doctors? Apparently, there aren't any limits on the working hours of doctors in Singapore (I've often tried to search for regulations on the working hours of doctors in Singapore but I've never found any; the would-be doctors that I've spoken to are also unaware of any such limits).But that could change soon. And the change could come from an unexpected source.The Workplace Safety and Health Act (WSHA) will be extended to cover the healthcare sector from 1st March. In line with this move, the Workplace Safety and Health Advisory Committee has issued guidelines that are specific to the healthcare sector. Section 2.4.1 of the guidelines refer to "Shift Work and Extended Work Times, Stress and Burnout" and recommend the following as control measures: Shift design and schedules can be adjusted so that staff have sufficient rest days. Provide rest facilities for all staff.Provision of adequate meal breaks.As far as possible, adhere to regular eating patterns and good nutritionConsider sleeping on a set schedule and obtaining sufficient sleepAllow time for relaxationA regular exercise regime is recommended. Healthcare institutions such as hospitals and clinics could be required to implement some of these measures as part of their risk management programmes under the WSHA.Does this point to better working hours for doctors in the future? Well, the guidelines are not strictly enforceable and healthcare institutions presumably have the "not reasonably practicable" defence that seems to pervade the whole WSHA. But I guess there is hope.The other interesting thing about the guidelines is that they deal with workplace harassment (see section 2.4.2). This is an area in which legal change has been slow. The guidelines seem to require employers to take steps to prevent the harassment from occurring, which is similar to what Title VII jurisprudence does in the US. But for a jurisdiction with hardly any legislation on workplace harassment, following the Title VII model, albeit in a not-strictly-enforceable way, is, I think, a rather radical move. 377A Still A Registrable Offence Sometime last week I said that 377A was no longer a registrable offence. That is incorrect.In my enthusiasm I had failed to realise that the First Schedule to the Registration of Criminals Act had been amended to include new offences but that the original schedule still remains in force, and the original schedule did include 377A.It appears that a lot of people read my post and I think some may have been in a celebratory mood because of it. I'm sorry to have spread this misinformation and to have to dampen your spirits like this. I promise to check more carefully next time.Once again, my sincere apologies. The Story of Section 298A As promised, here is an excerpt from a paper I was writing last year (never finished, as usual), dealing with race and religion-related offences in the Penal Code. The main thrust of this section of the paper is that the section 298A that we inserted recently is something that we had already rejected way back in 1938, and my main grouse is that we have put it back in without bothering to find out why we rejected it in the first place. Surely there must have been a reason?I think one of the major defects of the recent Penal Code revision exercise is that the paper explaining the changes was so skimpy. Professor Michael Hor wrote in a paper published last year that he found it hard to believe that this skimpy paper is all there is. I tend to agree. But I would add that all this skimpiness makes the law revision commissioners look bad. One is left to wonder whether they actually thought sufficiently about the review as to be able to uncover issues such as this one. Anyway, enough rambling, here's the excerpt. A bit hard to follow because it is unedited, and don't trust the footnoting.Legislative History of Section 298AThis is what section 298A of the Penal Code currently looks like:Promoting enmity between different groups on grounds of religion or race and doing acts prejudicial to maintenance of harmony 298A. Whoever –(a) by words, either spoken or written, or by signs or by visible representations or otherwise, knowingly promotes or attempts to promote, on grounds of religion or race, disharmony or feelings of enmity, hatred or ill-will between different religious or racial groups; or(b) commits any act which he knows is prejudicial to the maintenance of harmony between different religious or racial groups and which disturbs or is likely to disturb the public tranquility, shall be punished with imprisonment for a term which may extend to 3 years, or with fine, or with both.I. The Consolidation of Sedition LawThe parentage of section 298A has to be traced back to Macaulay’s draft of the Indian Penal Code, which included this provision:113. Whoever, by words, either spoken or intended to be read, or by signs, or by visible representations, attempts to excite feelings of disaffection to the Government established by law in the territories of the East India Company, among any class of people who live under that Government, shall be punished with banishment for life or for any term from the territories of the East India Company, to which fine may be added, or with simple imprisonment for a term which may extend to three years, to which fine may be added, or with fine.Explanation. Such a disapprobation of the measures of the Government as is compatible with a disposition to render obedience to the lawful authority of the Government, and to support the lawful authority of the Government against unlawful attempts to subvert or resist that authority, is not disaffection. Therefore the making of comments on the measures of the Government, with the intention of exciting only this species of disapprobation, is not an offence within this Clause.1 This provision was left out of an 1870 Ordinance to introduce the Penal Code into the Straits Settlements, but this 1870 Ordinance never came into force. In the 1871 Ordinance that did come into force, an almost identical provision appeared as section 124A. In 1917, section 124A was repealed and re-enacted. Among the changes was the inclusion of a marginal note that reads “Sedition”. Section 124A came to read thus:Sedition. 124A. Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite feelings of dissatisfaction towards His Majesty or the Government established by law in the Colony, shall be punished with penal servitude for life, to which fine may be added, or with imprisonment for a term which may extend to three years, to which fine may be added, or with both.Explanation 1. – The expression “dissatisfaction” includes disloyalty and all feelings of enmity.Explanation 2. – Comments expressing disapprobation of the measures of Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or dissatisfaction, do not constitute an offence under this section.Explanation 3. – Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or dissatisfaction, do not constitute an offence under this section.2 With the passing of the Sedition Ordinance on 29th August 1938, section 124A was repealed, along with the Seditious Publications Ordinance (which had appeared in 19153).4 It appears from this that the intention of the legislature was to repeal all the existing sedition law and henceforth to deal with sedition through the Sedition Ordinance. Thus the Objects and Reasons to the Bill introducing the Sedition Ordinance states that “The purpose of this Bill is to re-enact the law relating to sedition”.5II. The curious deletion of 153AThis intention was perhaps the driving force behind the curious deletion of a proposed Penal Code amendment. On 13th June 1938, a Bill was debated in the Legislative Council.6 One of the clauses in the Bill sought to introduce a section 153A, which looks strikingly similar to section 298A(a):Promoting enmity between classes. 153A. Whoever by words, either spoken or written or by signs or by visible representations, or otherwise, promotes or attempts to promote feelings of enmity or hatred between different classes of the public shall be punished with imprisonment of either description which may extend to two years, or with fine, or with both.Explanation – It does not amount to an offence within the meaning of this section to point out, without malicious intention and with an honest view to their removal, matters which are producing or have a tendency to produce, feelings of enmity or hatred between different classes of the public. While the provision made no reference to race, it was stated in the Objects and Reasons of the Bill that the object of this section was “to prevent the fomentation of enmity between the various races and classes which make up the community”.7At the second reading of the Bill, the clause introducing section 153A was deleted.8 Section 153A thus never came into existence. This writer is unaware of the reasons behind the deletion. Given however that the contents of the Bill introducing the Sedition Ordinance were already known at the time of the deletion, one may be led to surmise that the legislature thought that the Sedition Ordinance would cover the conduct envisaged by section 153A and thereby render the latter section useless.9III. The ghost of 153A rears its headIt is therefore curious that section 153A has made a comeback in the form of section 298A(a). It appears, however, that the overlap with the Sedition Act may be an intentional move on the part of the legislature. While the Ministry of Home Affairs’ Consultation Paper on the Penal Code Amendments is silent about section 298A(a), it does make this comment about section 298:Arising from the case of the racist bloggers who were charged under the Sedition Act, we propose amending the Penal Code to provide another option to the Sedition Act, to charge such offenders in future cases. Hence, MHA recommends expanding the scope of s.298 on “Uttering words, etc with deliberate intent to wound the religious feelings of any person” to cover the wounding of racial feelings as well. For future such cases, where appropriate, prosecution can have the option to proceed under the Penal Code or the Sedition Act.10 It is difficult to see what merit there may be in intentionally creating overlapping provisions that require prosecutorial discretion to be exercised. The overall drop in transparency in the administration of criminal justice is difficult to justify. Nevertheless, it must be said that between the Sedition Act and section 298A(a), it is the latter that is to be preferred, since it requires the offender to possess knowledge. The Sedition Act, by contrast, is not concerned with the offender’s mental state at all.11References1 Macaulay's Indian Penal Code at 16.2 Criminal Law (Amendment) Ordinance (No. 10 of 1917), section 9.3 Seditious Publications Ordinance (No. 10 of 1915).4 Sedition Ordinance 1938 (No. 18 of 1938), s. 10.5 SS Govt Gazette, June 17 1938 at 1658.6 Bill introducing the Penal Code (Amendment) Ordinance, 1938, printed in Straits Settlements Government Gazette, April 29, 1938 at 1227.7 Straits Settlements Government Gazette, April 29, 1938 at 1228.8 Straits Settlements Government Gazette, September 2, 1938 at 2449.9 The Bill introducing the Sedition Ordinance was read a first time on 13 June 1938, which is the same day that the debate relating to section 153A occurred. See SS Govt Gazette June 17 1938 at 1655.10 MHA Consultation Paper on Penal Code reforms, ¶ 9.11 See Sedition Act, section 3(3). cry. Gay Anal Sex Illegal...really? The recent amendments to the Penal Code come into effect today, according to this gazette notification, and of course, section 377A still remains in the code.Exactly what it is supposed to do, however, is still a matter of some dispute. Back in September, I argued that 377A does not cover oral or anal sex, and in December, Professor Kumaralingam Amirthalingam of the NUS Law Faculty argued that 377A does not cover anal sex. Here is an extract from Prof Kumar's article in The Straits Times that summarizes the argument somewhat:There is an assumption that 377A includes anal sex as part of the definition of gross indecency. However, the legislative history of the two provisions, as well as the existing jurisprudence and prosecutorial policy, suggests that 377A does not include anal sex.Section 377A was not in the original Penal Code of the Straits Settlements (the precursor to the Singapore Penal Code), but was introduced in 1938 following reforms in England. During the introduction of the Bill, it was explained that 377A 'makes punishable acts of gross indecency between male persons which do not amount to an unnatural offence within the meaning of 377 of the Code' (italics added). Clearly, 377 and 377A were intended to be complementary but mutually exclusive provisions.The fact that the two provisions are aimed at different acts was highlighted in a Singapore High Court decision, PP v Kwan Kwong Weng, where the judge held that 377 was limited to anal sex and bestiality, excluding oral sex, which properly belonged to 377A...The crucial question then is whether gross indecency in 377A can be interpreted to include anal sex in the light of the repeal of 377. Arguably, courts should not interpret 377A in this way, as one of the principles of statutory interpretation, particularly in criminal law, is that where there is ambiguity, the penal provision should be interpreted in favour of the accused.Had Parliament intended to retain the crime of anal sex between males, it should have done so explicitly.The following week, a spokesperson from the Ministry of Home Affairs wrote in response to Prof Kumar:2 A/P Amirthalingam argued that based on existing jurisprudence, gross indecency under section 377A (Outrages on decency) of the Penal Code does not include anal sex between males. He is of the view that since section 377 (Unnatural offences) which criminalises consensual anal sex between males will be repealed and section 377A does not include anal sex, there is a lacuna in the law. 3 There is no lacuna in the law. The debate in Parliament made abundantly clear that the Government's intention is to decriminalise oral and anal sex between a consenting adult heterosexual couple in private by repealing section 377 but to retain the status quo whereby homosexual acts under section 377A remains criminalised. In this regard, the Attorney-General's Chambers had earlier advised that section 377A covers the act of anal sex between male persons. Mr Toh Yong Chuan Deputy Director International & Corporate Relations Division Ministry of Home AffairsAs some bloggers pointed out (I think it was Molly), it is hard to pinpoint Parliament's intention from a 'debate'. From my (somewhat limited) experience, however, 'Parliamentary intention' as evidenced in a Parliamentary debate is most often distilled from the speech of the Minister sponsoring the Bill, which in this case was Prof Ho Peng Kee. This is what he said in Parliament about 377A:Next, Sir, section 377A which criminalises acts of gross indecency between two male adults will be retained. Public feedback on this issue has been emotional, divided and strongly expressed with the majority calling for its retention. Sir, Singaporeans are still a largely conservative society. The majority find homosexual behaviour offensive and unacceptable. Neither side is going to persuade or convince the other of their position. We should live and let live, and let the situation evolve, in tandem with the values of our society. This approach is a pragmatic one that maintains Singapore's social cohesion. Police has not been proactively enforcing the provision and will continue to take this stance. But this does not mean that the section is purely symbolic and thus redundant. There have been convictions over the years involving cases where minors were exploited and abused or where male adults committed the offence in a public place such as a public toilet or back-lane. Sir, whilst homosexuals have a place in society and, in recent years, more social space, repealing section 377A will be very contentious and may send a wrong signal that Government is encouraging and endorsing the homosexual lifestyle as part of our mainstream way of life.His speech certainly did not make it "abundantly clear," as Mr Toh Yong Chuan had suggested, that 377A covers gay anal or oral sex.In a court of law, a prosecutor faced with an argument similar to Prof Kumar's or mine will have to find evidence that Parliament intended 377A to cover gay anal sex. Unable to derive any support from Prof Ho's speech, such a prosecutor may be tempted to point to Mr Toh's letter as evidence of Parliamentary intention. But there is of course a problem here. The MHA is not Parliament; neither is its corporate relations department; neither is Mr Toh. Therefore, nothing in Mr Toh's letter can be taken as evidencing Parliamentary intention. The opinion of any body other than Parliament, such as the MHA, is irrelevant in interpreting a statute because it is Parliament that is supposed to make law, and not the MHA. So the reference in Mr Toh's letter to the opinion of the AG's Chambers is also somewhat insufficient to save 377A.And so we are left in a dilemma, albeit a technical one, as to what is actually covered by 377A. I am pretty sure that if this issue were to come before a court, the judge would find a way of brushing it aside. But the fact is that this technical glitch exists now, and it wouldn't have existed if some people had done their homework properly. Prof Ho could easily have been told to say explicitly in his speech what 377A was intended to cover from now on, but probably nobody thought to do this because nobody had seen the problem - a problem which could have been uncovered if proper research had been done.And the apparent lack of proper research doesn't stop at 377A. If I have the time, I'll post something else about this in a few days' time perhaps. 377A No Longer A Registrable Offence Erratum: The information in this post is not correct. In my enthusiasm I had failed to realise that the First Schedule to the Registration of Criminals Act had been amended to include new offences but that the original schedule still remains in force, and the original schedule did include 377A.It appears that a lot of people read my post and I think some may have been in a celebratory mood because of it. I'm sorry to have spread this misinformation and to have to dampen your spirits like this. I promise to check more carefully next time.Once again, my sincere apologies. This was the original post:The past few days have seen the dissemination of subsidiary legislation to amend the schedules of various criminal statutes so as to bring them in line with the recent Penal Code reforms, which take effect on 1st February 2008.While most of the changes have to do with the re-numbering of offences and other minor details, one of these hard-to-spot changes has caught my eye: while prior to 1st February 2008 all persons convicted under Penal Code section 377A had to be registered, this will no longer be the case after 1st February 2008. In other words, persons convicted under 377A after 1st February 2008 will not have a criminal record for this offence.As you can see this is a very small change and I'm making a mountain of a mole-hill but of course you know this nitty-gritty stuff interests me. And actually, I think it's a move to be celebrated by gay people because now when a prospective employer asks you if you have a criminal record, you can say "no", even if you have been convicted under 377A after 1st February 2008. Which means, you won't have to explain the circumstances of your conviction to your employer, which means, you won't be outed unnecessarily. [But if your employer asks if you've been convicted of an offence you still have to answer "yes" although you don't have a record. So it all depends on what question you're asked. Thanks to Heng-Cheong Leong for pointing this out - see comments.]The change could also be due to the government's declaration that 377A will not be actively enforced, but then non-registration happens whether or not your conviction was 'active' or 'passive'.Other than that, I haven't quite been bothered to figure out if there are other material consequences legally, but if you have the time and you want to check it out, here is the Registration of Criminals Act, and here is the new Schedule. SG Police Score Yet Again! Bureacratic muddle leads to canning of International Fringe Festival eventPosted by theonlinecitizen on January 27, 2008:Members of the Singapore Complaints Choir have an additional grievance to add to their future lyric sheets: they have been effectively muzzled by the city state’s police.The arrival of the Finnish ‘Complaints Choir’ in Singapore was an eagerly anticipated component of the M1 Singapore Fringe Festival 2008. The Singapore leg of the Complaints Choir was billed as the first Asian Complaints Choir to be organized.Now, the Choir’s experience will be remembered as a first for a very different reason: it was effectively banned from performing in public by the police because of foreign members’ participation in the choir...Read the rest of this entry at theonlinecitizen.com » SG Police Looking Ridiculous Again Some interesting things happened this week.Tuesday. Had my first Public Law tutorial with Prof T (cannot be named).T: Time to bully someone else. Let's see. Who hasn't said anything yet? Hmm. Ah! Mohan! You've been unreasonably quiet. What is the Rule of Law?Me: I...er...well...there are two competing conceptions and it really depends on what you want out of it...T: I'm interested to know which conception you prefer.Me: I think the one that is most attractive to me is that which references justice and fairness...T: Ah. I used to be like you. But not anymore.So she proceeded to explain her position, which is excellent because a lot of profs don't even dare to state what their stand is, let alone defend it. So that was our first moment of contact. Something I shall remember, I think. She really is a good tutor and a rational person. Which is quite hard to square with the first impressions she made.Friday. My first law lecture! Second if you count the paper that E and I defended for Crim last year, but that was a paper defence so it doesn't count as a lecture. So I was standing there in front of like 50 secondary school kids and speaking law-speak for 15min or more. I hope they weren't bored. But I must say I quite enjoyed it. Although I was hopelessly nervous during the lead-up to it. And they actually had questions to ask at the end and the questions they asked were relevant to what I said, so, I think they must have gotten something out of me. Yay. They even asked some 377A-related questions, but that was "out of bounds" so I wasn't at liberty to answer them. Oh well.Lastly, the Human Rights Torch Relay, which has been going round the world to protest human rights violations in China, came to Singapore last saturday. And guess what. Singapore police confiscated two of the Torches. Hahahaha. I really wonder whether Police does these ridiculous things on their own accord or whether they are being directed to do so. It'd be really embarassing to be a police officer in these situations, especially if you end up on youtube: