I refer to the Straits Times report, "Government has not curbed public prosecutor's discretion for Section 377A: A-G Lucien Wong" (Oct 2).
Far from suggesting that the public prosecutor (PP) does not retain the sole discretion to prosecute, my Insight piece in The Sunday Times affirms and reiterates such prosecutorial discretion. And that is precisely why the present situation is so unsatisfactory.
Each new PP could very well take a different and subjective view of what circumstances merit prosecution.
In this connection, the following observations made by a current deputy attorney-general, Mr Hri Kumar Nair, on Oct 22, 2007 (in Parliament, while he was an MP), are both prescient and pertinent:
"...it is unclear what the current legal position is.
"…Does it mean that the police will not act on complaints or that suspects may be investigated but ultimately not arrested or prosecuted? Or is it the case that the Attorney-General (A-G), who has prosecutorial discretion, may prosecute some but not all offenders?
"That puts the A-G in a difficult position because selective prosecution will give rise to more issues. But if the intention is not to do anything at all, then what is the purpose of having the law? Does it not hurt our credibility that we have laws that are toothless?
"…in the long run, making some conduct criminal under our Penal Code whilst stating that the law will not be enforced, simply invites attacks on the integrity of the code."
As for the 2008 case referred to in the Attorney-General's Chambers statement, it is important to point out that the offending conduct in question occurred in September 2007, before parliamentary debates started. Further, the charge was not pursued although taken into consideration.
Reference might usefully be made to the 2010 case against Mr Tan Eng Hong. Mr Tan and his co-offender were initially charged under Section 377A, but the charges were withdrawn and substituted with different offences shortly after Mr Tan filed a challenge against the constitutionality of 377A.
As far as I am aware, these are the only instances when Section 377A was invoked after the 2007 parliamentary debates.
On Sept 8 this year, chief of government communications Janadas Devan made the following statement in his Facebook page: "But the Government does not and will not enforce 377A." This illustrates how ambiguous the present enforcement situation is.
V. K. Rajah