The Basis for Criminalisation
Should suicide be criminalised? Should we repeal s 377A of the Penal Code? Should adultery be criminalised? Should we permit euthanasia?
When there is debate over these controversial, or not-so-controversial, issues in Parliament or among the public, the bottom line is—What is the basis for criminalisation? There are two main approaches to justify criminalisation—a liberal approach and a communitarian approach.
Liberals are often described as viewing individuals as atomistic and autonomous. From this perspective, individuals stand apart from one another, and each has supreme rule over his or her own life through the use of ‘rights’ to pursue their personal notions of what is ‘good’. As such, the onus is placed on the government to provide a justification if it seeks to restrict an individual’s freedom, or rights.
Because of the emphasis liberals place on individual’s ability to pursue their personal notion of what is good, they do not think that “morality” should determine societal standards. Instead, most liberals endorse the harm principle as the basis for criminalization. The harm principle says that an action should only be criminalised if it harms another person. However, it is unclear how “harm” is defined, as there can be direct and indirect, physical and non-physical (e.g. emotional) forms of harm.
The communitarian approach, on the other hand, regards persons as social beings that form part of a community. This may be contrasted with liberalism’s assumption of human nature as atomistic or individualistic. As social beings, we affect one another and one’s pursuit of his perceived “the good life,” affects another’s pursuit. Hence, communitarianism balances individual rights with considerations such as economic, social, and shared values. These shared values are communally articulated as values to uphold and promote.
Besides promoting the common good and shared values, a communitarian may assert that laws educate. This is especially true because, as people who live in a community, even our “private” acts may pollute the moral ecology and cause harm. An often used example is how pornography invokes sensual desires with self-focused instant gratification and, in doing so, undermines fidelity in a marriage, weakening the nuclear family.
The Singapore government has subscribed to the communitarian approach and has chosen the following shared values to be published in the 1991 Shared Values White Paper:
- Nation before community and society above self;
- Family as the basic unit of society;
- Community support and respect for the individual;
- Consensus, not conflict; and
- Racial and religious harmony.
A case study: s 377A
In 2007, the Parliament put forth a bill to amend the Penal Code, which included the proposed repealing of s 377A, the section criminalising sexual intercourse between males.
The communitarian side of the argument was well-articulated by the then Nominated Member of Parliament, Associate Professor Thio Li-Ann, a constitutional law professor. She contended that keeping s 377A upholds national interest in protecting what is precious and what sustains a “dynamic, free and good society.”
On the other side of the debate, Michael Hor, another law professor, articulated that the action criminalised under s 377A does not harm anyone. The lack of harm is further supported by the government’s pronounced non-enforcement. Because there is no harm, the only reason why s 377A is retained is because people are offended by its being repealed. He points out that this is inconsistent because the non-enforcement will not ensure that people will not be offended (the action can still continue unchecked). Furthermore, “It demeans the individual to have his behaviour, which is presumably important to him and which the government does not think is harmful to society, to be labelled a crime, and him a criminal.”
This shows how the liberal approach and the communitarian approach may stand at odds with one another. They are not just different from their starting positions as discussed earlier, but their approaches may reach completely different conclusions.
A subtler case in which this clash can be seen is euthanasia.
An argument for decriminalising euthanasia rests on autonomy to make choices on life and death. This is consistent with the liberal approach that values choice and rights above other competing values, as this notion of the “right to die” has been traced to the belief that “man is the master of his own destiny.”
On the other hand, the Court of Appeal in UK, when confronted with this issue, said, “[T]he mere fact that there may be rights to autonomy and to be treated with dignity does no more than raise the question whether they should be given priority in circumstances like this”. In other words, the Court of Appeal was highlighting that the mere existence of dignity and autonomy does not mean that it should be given top priority; rather, the existence of these competing values raise the question whether more weight should be given to them than to the sanctity of life.
The contrast between “man is the master of his own destiny” and the view taken by the Court of reveals the value judgement involved in many of the decisions that governments face. It is by this open acknowledgement of a value judgement that allows the public to engage on a discussion that truly reflects the value-laden reality of a decision.
Adam Lambert’s Performance in Countdown 2016
Before Countdown 2016 in Singapore, there were two opposing petitions: one in opposition to Adam Lambert performing at that event and the other in support of his performance. Interestingly, both sides of the controversy purported to protect family values.
The petition opposing his performance:
Allowing Adam Lambert to perform as the star of Countdown 2016 shows disregard for the values of a majority of family-centric Singaporeans who have consistently resisted the promotion of western liberal ideas about family values and societal models. (emphasis added)
The petition supporting his performance:
The opposing petition are anti family and anti Singaporean values because their discrimination harms family members. We support real family values and real Singaporean values by being modern and inclusive. (emphasis added)
It is interesting to observe that while both sides claimed to promote “family values,” it may represent vastly different ideals.
Although competing views exist, this author views the communitarian approach to articulating and balancing competing considerations as preferable in the arena of public debate.
In this author’s view, although liberalism sets itself out as being “neutral,” letting people make their own choice, the action of being “neutral” is not actually value-neutral since the liberal values of freedom, choice, and fairness are themselves values too. In a public discussion, the liberal values of tolerance and choice should come to the forefront, just as transparently as any other value that society may value, e.g. sanctity of life and family values. How much weight society should place on the different values should be articulated. In this regard, it is the communitarian approach in the public arena that allows for the needful and welcome conversation which liberalism may try to circumvent.
Written in 2016 by Chua En Ning Janna
*The views and opinions expressed in this article do not constitute legal advice and solely belong to the author and do not reflect the opinions and beliefs of the NUS Criminal Justice Club or its affiliates.
- AP Simester, JR Spencer, GR Sullivan and GJ Virgo, Simester and Sullivan’s Criminal Law: Theory and Doctrine (Hart, 2010)
- Chua, Lynette J. Kher Shing, “Saying No: Sections 377 and 377A of the Penal Code.” Singapore Journal of Legal Studies  209–261.
- Diana Fletcher, “Euthanasia—Law At the Edge of Life.”  7 SingLRev 22-23.
- George, Robert P. (2000) “The Concept of Public Morality,” American Journal of Jurisprudence: Vol. 45: Iss. 1, Article 2. <http://scholarship.law.nd.edu/ajj/vol45/iss1/2>
- Hor, Michael. “TOC Feature: 377A – To Prevent What Harm? – The Online Citizen.” The Online Citizen. 10 Oct. 2007. Web. 06 Feb. 2016. <http://www.theonlinecitizen.com/2007/10/377a-to-prevent-what-harm/>.
- Lee, Yvonne C. L. “’Don’t Ever Take a Fence Down Until You Know the Reason it was put up’”—Singapore Communitarianism and the Case for Conserving 377A” Singapore Journal of Legal Studies  347-394
- Nicklinson v Ministry of Justice  EWCA Civ 961 <http://www.bailii.org/ew/cases/EWCA/Civ/2013/961.html>.
- Parliamentary Debates Singapore Official Report, vol 83, col 2242 (22 October 2007) (Prof. Thio Li-ann).
- Pilcher, Rachel. “Petition To Stop Adam Lambert Performing In Singapore Closes.” Petition To Stop Adam Lambert Performing In Singapore Closes. Yahoo!, 30 Nov. 2015. Web. 06 Feb. 2016. <https://sg.celebrity.yahoo.com/post/134263167419/petition-to-stop-adam-lambert-performing-in>.
- Sandel, M. J. (1984). Liberalism and its critics. New York: New York University Press.
- Toh, Puay Sun, and Yeo, Stanley. “Decriminalising Physician-Assisted Suicide in Singapore”. (2010) 22 Singapore Academy of Law Journal 379-412.
 Yvonne Lee p. 350
 Lynnette Chua p. 213 and Simester p. 638
 Yvonne Lee, using R.A. Duff’s Trials and Punishment as support
 The concept of moral ecology is mentioned in Yvonne Lee’s article at p.379 and elaborated by R.P. George. It was also used by Prof Thio Li-Ann in her speech.
 Toh, Puay Sun, and Yeo, Stanley. “Decriminalising Physician-Assisted Suicide in Singapore”. (2010) 22 Singapore Academy of Law Journal 379-412.
 Diana Fletcher, “Euthanasia—Law At the Edge of Life.”  7 SingLRev 22-23.
 Nicklinson v Ministry of Justice  EWCA Civ 961 at , emphasis added
Sandel, M. J. (1984). Liberalism and its critics. New York: New York University Press.