Mr V. K. Rajah's letter states that: "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." (Opinion piece reiterates prosecutorial discretion; Oct 5).
In his Insight piece, Mr Rajah had said that: "Selective enforcement of laws undermines the rule of law, creating perceptions that prosecutions can be directed by the Government or pursued on non-legal grounds."
The purpose of my statement on Tuesday was to dispel any such perception by making it clear that where the police refer cases under Section 377A of the Penal Code to the PP, the PP exercises his discretion on whether to charge the offender and for what offence, based on his assessment of the facts, the law and the public interest.
In his letter, Mr Rajah himself affirms and reiterates this.
Mr Rajah will also agree that the PP is able to exercise such discretion without any interference.
I had also highlighted a 2008 case which illustrates the Government's and the prosecution's respective longstanding approaches to Section 377A cases.
Mr Rajah suggests that this case may not be relevant as the offending conduct occurred in September 2007, before the parliamentary debate on Section 377A.
However, the Government's position that the police will not proactively enforce Section 377A with respect to private acts had been made public since at least 2006.
When the Ministry of Home Affairs launched the public consultation on proposed amendments to the Penal Code, The Straits Times reported that: "While it is still technically illegal for men to have sex with other men, the ministry reiterated that it will not be proactive in enforcing this law against consensual acts that take place in private." (Law on 'unnatural' sex acts to be repealed; Nov 9, 2006).
The PP has consistently taken the position that, absent other factors, prosecution under Section 377A would not be in the public interest where the conduct was between two consenting adults in a private place.
This was the case when Mr Rajah was the PP and remains so today.
Lucien Wong
Attorney-General
