Unfairness following ex-Chief Justice Chan Sek Keong's Statements on 377a

The continuing dialogue in the media following very publicly released arguments by ex-CJ Chan Sek Keong to repeal 377a needs to be put to rest.

This untimely dialogue disadvantages the conservative position on 377a because it happens right before the 3 court hearings on 377a are to be heard in weeks' time.

Prof Chan Sek Keong holds the position of ex-colleague, ex-boss, ex-Chief Justice over lawyers, judges and the people of Singapore. He is also now a recognised academic on issues of law. It is disturbing to read his publicly released document on 4 counts:

1. As the ex-Chief Justice of Singapore, will it be fair if I, as a citizen of Singapore, expect propriety from an ex-civil servant of such considerable standing, to think for the people of Singapore and continue to shine as beacons of examples for the people to trust in? Maybe it is my misplaced expectation. But I feel that while Mr Chan is entirely justified to have his opinion on 377a, it was not proper procedure for him to have published his academic paper publicly with the 3 court cases at hand. Him doing so with his position and influence should directly prejudice the upcoming cases - and the timing of it also discourages disagreeing academics, legal practitioners or citizens like me to provide counter arguments, for fear of subjudice. Mr Chan, with his position as an ex-CJ, should not have been oblivious to such concerns. The timing at which Mr Chan chose to publish his document is unfair to the people of Singapore. We are deprived of a proper conversation or debate and conservatives are being prejudiced against because of the fear of subjudice if we comment on his analyses.

2. Now the courts could be forced to look into Mr Chan's highly esteemed perspectives. Mr Chan had argued 377a was never meant to be a law highlighting anal sex. This novel argument has casted shadows of doubt on the constitutionality of 377a, and more legal practitioners have begun to publicly echo Mr Chan's perspectives believing that the courts must either rule 377a as unconstitutional or the Parliament must reword 377a (https://www.straitstimes.com/singapore/law-experts-set-out-two-options-in-former-cjs-analysis-of-377a). Both suggestions are moot and bothers on tyranny as far as ordinary citizens like me are concerned. How can legal practitioners make light of the legislative and judicial processes that we the People of Singapore had gone through as a nation? 377a has survived a few constitutional challenges in both the High Court and Court of Appeal, and had gone through a thorough legislative review in Parliament, where it was clearly established it covered penetrative sex - it was implied in the debates among members of Parliament in 2007. If the Legislative lawmakers had made ammendments to 377 and so clearly meant 377a to cover penetrative sex acts, the Judiciary should not interpret it otherwise, should they? Wouldn't Mr Chan's arguments be a tyrannical judicial overreach as he suggests 377a to be of an entirely different law as what our legislative lawmakers have determined? Can an ex-CJ overwrite the legislative processes that the nation as a people had gone through to establish the coverage and constitutionality of 377a?

3. Mr Chan's statements plus the ensuing dialogue among law practitioners exerted an unfair pressure on the courts and public. But other than Mr Chan's novelty argument that the original intent of 377a was not meant to cover penetrative sex acts, there was nothing new about Mr Chan's arguments. It is the same old under the sun and it had been debated. Like when he said homosexual males are treated unequally under 377a. This argument is only true on two grounds. First, if "sexual orientation" is a recognised category under Article 12(1). It is not. Our Prime Minister Lee had said that sexual minorities is not a recognised category with rights like racial minorities (Parliament, 2007). And PM Lee said that with good reason. Mr Chan may be an expert on law but he would be presumptuous if he asserted sexual orientations as protected categories. The onus is on him to prove sexual minorities are "born that way" like how race is - innate and immutable. Scientific studies have increasingly shown that non-genetic factors are responsible for homosexuality (https://www.straitstimes.com/world/europe/no-gay-gene-but-study-finds-genetic-links-to-sexual-behaviour). Former AG lawyers had highlighted that 377a discriminates against an act, regardless of the sexual orientation of the person commiting it.

Second, homosexual males are treated unequally under 377a if they are differentiated based on sex or gender - without a rational basis. Mr Chan understood this and suggested:

“If Parliament bans women, but not men, from smoking cigars, equality of all persons under Article 12(1) requires the state to justify the reasonableness of the ban,” said Mr Chan.

This could be done on health grounds, if medical research showed women were more prone to lung cancer than men, for example."

It could be notable that Ministry of Health's statistics on the rate of HIV infection have consistently shown men as the gender with higher HIV infection rates, and among this gender, men who have sex with men (MSM) is the group that reaps the higest rate of HIV infection (https://www.moh.gov.sg/resources-statistics/infectious-disease-statistics/hiv-stats/update-on-the-hiv-aids-situation-in-singapore-2017-(june-2018)). The MSM group typically accounts for more than half of all HIV infections, even though they are statistically known to constitute only 1-3% of the population. This should be good justification on medical ground to make a differentiation between men and women on 377a, befitting the suggestion Mr Chan gave.

4. Lastly, I am uncomfortable with Mr Chan's claims of how and why 377a was first established. As recently as last year, I watched how self-claimed historian PJ Thum made claims about Operation Coldstore and got grilled by Law Minister Shanmugam. (https://mothership.sg/2018/03/pj-thum-k-shanmugam-fake-news/) One by one Thum's claims fell apart. Operation Coldstore is a much more recent and better documented event, I believe, as compared to the 1938 enactment of 377a. I am really uncomfortable with Mr Chan trying to play historian and using an uncertain past to overturn what has been resolutely established through our legislative and judicial processes. It is unthinkable to me in the manner that this is done. Hence, I like to make this fair and corresponding statement rather than to suffer in silence as a People of Singapore when I truly believe 377a is good for the nation. Singapore can ill-afford to be non-objective on this matter. We need less convoluted jargons that confuse the people and more trust and stability in whatever our laws, courts and government have established.