Prosecutorial discretion on Section 377A offences ‘has always been, and remains, unfettered’, says AGC

SINGAPORE — While the Government has made clear its position that the police will not pro-actively enforce Section 377A, the public prosecutor’s exercise of prosecutorial discretion “has always been, and remains, unfettered”, the Attorney-General’s Chambers (AGC) made clear on Tuesday (Oct 2), following recent comments by two former Attorneys-General.

Debate over the law which criminalises sex between two men has been reignited in Singapore, following a Sept 6 ruling by India’s Supreme Court to strike down Section 377, the country’s law banning gay sex.

In a press statement signed off by Singapore's Attorney-General Lucien Wong, the AGC noted that former Attorneys-General, Professor Walter Woon and Mr V K Rajah, have suggested that it is not desirable for the Government and Parliament to direct the public prosecutor not to prosecute offences under Section 377A, or to create the perception that they are doing so.

“Such comments may give rise to the inaccurate impression that the exercise of the public prosecutor's discretion has been removed or restricted in respect of section 377A,” the statement said.

It noted that Under Article 35(8) of the Constitution, the discretion to institute, conduct or discontinue any proceedings for any offence is vested in the Attorney-General as the public prosecutor.

In exercising this discretion, the public prosecutor “seeks only to advance the public interest, taking into account all the facts and circumstances of the case, and other matters such as the recommendations of the investigating agencies and the expressed intention of Parliament”.

The AGC stressed that the police’s exercise of its enforcement or investigative powers should “not be conflated or confused with the public prosecutor’s exercise of discretion to commence prosecution”.

“In the case of section 377A, where the conduct in question was between two consenting adults in a private place, the public prosecutor had, absent other factors, taken the position that prosecution would not be in the public interest. This remains the position today.”

In 2008, then Deputy Prime Minister and Minister for Home Affairs, Mr Wong Kan Seng, explained that in the case of an offender who had been charged under Section 377A, a police report was lodged by a 16-year-old male who had oral sex with the suspect.

The police referred the case to the public prosecutor after completing investigations, and the public prosecutor decided to charge the accused after taking into account all the facts and circumstances of the case, including the complainant’s age and that the offence had taken place in a public toilet.

Referring to Mr Wong’s explanation, the AGC noted that he also made clear that for any report disclosing an offence, the police will “place the evidence before the public prosecutor for a decision as to whether or not to proceed with prosecution”.

The AGC reiterated that the Government’s position on Section 377A is that the police will not pro-actively enforce this provision, for instance, by conducting enforcement raids.

However, if there are reports lodged by persons of offences under Section 377A, for example, where minors are exploited and abused, the police will investigate.

In these instances, the police will decide whether or not there is sufficient basis to refer the case to the public prosecutor.

“It will then be for the public prosecutor to determine whether to prosecute. In doing so, the public prosecutor exercises his independent discretion on whether to charge the offender, solely on the basis of his assessment of the facts, the law, and the public interest,” the AGC said.

It added: “While the public prosecutor is entitled to consider public policies in exercising his discretion, these do not fetter the exercise of prosecutorial discretion.”

These fundamental principles have been “repeatedly affirmed by past and present Attorneys-General and have also been recognised and respected by the Government and Parliament”, the AGC reiterated.