Attorney-General (AG) Lucien Wong has responded to recent comments by two of his predecessors on section 377A, saying that they may give the “inaccurate impression” the public prosecutor’s (PP) discretion in relation to the law has been “removed or restricted”.
Walter Woon and V K Rajah, both former AGs, have pointed out that 377A, which criminalises sex between men, poses a constitutional problem given the government’s position on the law. The government has stated that the authorities will not proactively enforce 377A.
Woon has said that 377A sets a “dangerous precedent” whereby the political authorities are informing the PP – who is supposed to be independent – not to enforce some laws. Rajah echoed the view, saying that selective enforcement undermines the rule of law.
But AG Wong has rebutted his predecessors’ views, citing Article 35(8) of the Constitution. In a statement issued by the Attorney-General’s Chambers on Tuesday, Wong said the Article states “the discretion to institute, conduct or discontinue any proceedings for any offence is vested in the Attorney-General as the PP”.
“In exercising this discretion, the PP 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.”
AG Wong pointed out if there are reports lodged relating to offences under 377A, for example, where minors are exploited and abused, the police will investigate.
For investigations into an offence under the section, the police will decide whether or not there is sufficient basis to refer the case to the PP, he added.
“It will then be for the PP to determine whether to prosecute. In doing so, the PP 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,” said AG Wong.
While the PP is entitled to consider public policies in exercising his discretion, the exercise of the discretion remains unfettered, he added.
“In the case of section 377A, where the conduct in question was between two consenting adults in a private place, the PP had, absent other factors, taken the position that prosecution would not be in the public interest. This remains the position today.”
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