Many relevant and interesting points have been raised in the 377A debate concerning our law criminalising male homosexual acts. However I wish on this post to focus on two specific points raised in this debate. A modus tollens argument on the condition that if we criminalise some homosexual acts we must criminalise our sexual crimes, and secondly the oft repeated remark that Singapore has a “secular state”.
(1) Why not Criminalise all Sexual Immorality?
As to the first point, it is frequently argued that that if we criminalise some sexual acts in the name of morality, then we should criminalise all of them, e.g. fornication, adultery, etc. Since we do not, ergo, we should not criminalise homosexual acts. However that modus tollens is the obvious logical move is hardly self-evident. In fact, why would we not instead take the modus ponens to this argument and affirm that since we criminalise some sexual immorality ergo we should proceed to criminalise all of them?
In fact, under the Administration of Muslim Law Act we already criminalise cohabitation. The relevant section reads:
Cohabitation outside marriage
134.—(1) Any man who cohabits and lives with a woman, whether a Muslim or not, to whom he is not lawfully married, shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $500 or to imprisonment for a term not exceeding 6 months or to both.
(2) Any woman who cohabits and lives with a man, whether a Muslim or not, to whom she is not lawfully married, shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $500 or to imprisonment for a term not exceeding 6 months or to both.
(3) The court may, instead of sentencing a woman under subsection (2), order that she be detained in a place of safety established under any written law for such period not exceeding 12 months as it may determine.
Furthermore, one can argue in fact that there are good reasons to put adultery and fornication on the books for the sake of logical consistency, and even if we do not criminalise adultery, we should at least turn it into an actionable tort. (A tort is a wrongful act or infringement of act which creates a liability which allows the wronged party to sue the offender in a civil court. As such they are not “really” part of criminal law but civil law and normally involve trespass, breaches of contract, assault and battery, etc.) As such there is nothing wrong at all with turning adultery into an actionable tort especially if such a liability were explicitly spelt out in a pre-nuptial. But this will require a discussion in itself and suffice to say, it is enough to say that the modus tollens to the conditional posed is hardly the self-evident logical move.
(2) Singapore as a Secular State
As the above mentioned statute already makes clear, we are not a secular state for the very obvious reason that Islamic Law is literally part of the law of the land! It is a law passed by the Parliament of Singapore and in fact creates a Syariah Court appointed by the President of Singapore (Part III of the Act) and even enforces Islamic law over non-Muslims involved with Muslims. As long as we have Islamic law the State can never be secular because it is literally responsible for creating the Syariah Court and enforcing Islamic law, even against non-Muslims.
Naturally this time my modus tollens, that if we were a secular state we would not have Islamic law, could be met by a modus ponens answer, that since we are a secular state we should not have Islamic law. However I think that is a ten thousand ton elephant which very few here would be willing to touch with a hundred foot pole. Suffice to say, religion is as much as civic or political fact as any other legal fact like wills, testimonies, contracts, real estate, etc. With that I will conclude with some brief remarks concerning the difference between the Anglosphere model of “secularism” against that of the French model of laïcité.
Conclusion: The British versus French Model of Secularism
In the British model of secularism the government or state, while officially tolerating a plurality of religions in the civic space in the sense of allowing them to exist and participate in civic life, still recognises theological facts in the civic realm and can discern and judge them. For example recently the Singapore high court noted that the use of drums was not a universal practice in the festival of Thaipusam, and thereby upheld the ban on the use of drums in that festival in aid of public peace and tranquillity.
Another example where civil courts can recognise theological facts can be found in Britain a priest in a same-sex marriage took a Church of England bishop to the Employment Tribunal for refusing to grant him a licence to serve as a chaplain in a hospital. The Employment Tribunal heard the case and dismissed all the claims. What is interesting is that the Employment Tribunal, although a civil court, was able to discern the doctrinal standards of the Church of England, recognise the relevant theological facts and thereby the theological criteria for its clerics. Thus, a civil court was able to discern theological facts and judge its relevant civil effects.
These examples show how on the British model of secularity, the civil courts can engage and discern theological facts and practice to determine civic affairs, and not simply shut it out of the civic space.
Thus under the British model, religion has a substantive place in civic life and theological facts are not shut out of the civil courts and state but acknowledged and weighted. Although naturally with respect to civic claims the civil courts are impartial towards all religions.
The French model of secularism on the other hand is a strict separation of religions from civic life. Religion is strictly confined to its own space and cannot transgress it, the civic realm does not recognise or engage theological facts but they are excluded by default. That’s why in France they passed laws banning the burqa and other head coverings in public to protect their “secular values”.
One could answer that we cannot really follow the British here since up to today the British still literally has an established Church and the bishops of the Church of England still sit in the House of the Lords and have legislative powers. However, the fact also remains that Islamic law is also part of the law of the land, and Singapore has generally chosen to continue and follow the British model. Unless we want to adopt the French model and not only repeal Islam law but ban head coverings in public, this is the framework which we live in.