Govt to repeal Section 377A, protect definition of marriage from legal challenges

Singapore will repeal Section 377A of the Penal Code, Prime Minister Lee Hsien Loong said yesterday, confirming months of speculation that the Government might move on the law criminalising sex between men.

But to guard against this triggering a drastic shift in societal norms, the Constitution will also be amended to stave off future legal challenges on the definition of marriage, he added.

Explaining the rationale for repeal, he said there is a significant risk of the law being struck down by the courts in future legal challenges, and it would be unwise to ignore this and do nothing.

Societal attitudes towards gay people have also "shifted appreciably" and it is timely to consider again whether sex between men in private should be a criminal offence, he added.

"We need to find the right way to reconcile and accommodate both the traditional mores of our society, and the aspiration of gay Singaporeans to be respected and accepted," he said.

"I believe (repeal) is the right thing to do, and something that most Singaporeans will now accept. This will bring the law into line with current social mores and, I hope, provide some relief to gay Singaporeans."

His announcement at the National Day Rally came after the Court of Appeal ruled in February this year that Section 377A was unenforceable in its entirety.

Following the judgment, Cabinet ministers held extensive consultations with religious leaders, lesbian, gay, bisexual and transgender (LGBT) groups as well as regular Singaporeans on the best way to deal with the law.

The court, led by Chief Justice Sundaresh Menon, ruled that while Section 377A would remain on the books, it could not be used to criminalise gay sex - going further than the Government's earlier promises that the law would not be proactively enforced.

Yesterday, PM Lee said that following this judgment, Minister for Home Affairs and Law K. Shanmugam and Attorney-General Lucien Wong have advised the Government of a significant risk that in a future challenge, the law could be struck down on the grounds that it breaches Article 12 of the Constitution - the equal protection provision.

When the House debated amendments to the Penal Code in 2007, then-Nominated MP Siew Kum Hong had filed a citizen's petition to repeal Section 377A, sparking fierce debate on the topic.

PM Lee had argued then that it was better to accept the legal untidiness and ambiguity of keeping the law on the books, while not proactively enforcing it to "maintain a balance, to uphold a stable society with traditional heterosexual family values, but with space for homosexuals to live their lives and to contribute to the society".

It would have been too divisive to force the issue then, he said.

But over time, homosexuality has become better understood scientifically and medically, resulting in greater acceptance of gay people instead of them being shunned and stigmatised.

This has been so in Singapore and many other societies, he added.

Section 377A, introduced in the 1930s by the British colonial government and reflecting the moral attitudes and social norms of the time, has also since been repealed in many countries, including Asian countries, PM Lee added.

It is timely, therefore, to resolve the sensitive issue.

"Like every human society, we also have gay people in our midst. They are our fellow Singaporeans. They are our colleagues, our friends, our family members.

"They too want to live their own lives, participate in our community and contribute fully to Singapore," he added.

While Singaporeans still have differing views on whether homosexuality is right or wrong, most people accept that a person's sexual orientation and behaviour are a private matter and do not want gay men to be criminalised, he said.

Even among those who want to retain the law, most do not want to see it actively enforced, he added.

From the national point of view, private sexual behaviour between consenting adults also does not raise law-and-order issues, and there is no justification to prosecute people for it, he said.

The government review of the law had attracted pushback from religious groups and conservative Singaporeans worried that it could pave the way for LGBT activism on marriage equality.

Acknowledging these concerns, PM Lee said it had come through clearly over several months of engagement that while some feel strongly about keeping Section 377A itself, many of those who had reservations worry about what repeal could lead to.

They want to preserve the status quo on how marriage is defined, what children are taught in schools, what is shown on television and in cinemas, and even what is generally acceptable in public. The Government, too, does not want repeal to trigger wholesale changes in society, he said.

Therefore, it will also move to amend the Constitution in tandem to protect the definition of marriage from being challenged constitutionally in the courts, he added.

"This will help us to repeal Section 377A in a controlled and carefully considered way," he said.

"It will limit this change to what I believe most Singaporeans will accept, which is to decriminalise sexual relations between consenting men in private.

"But it will also keep what I believe most Singaporeans still want, and that is to retain the basic family structure of marriage between a man and a woman, within which we have and raise our children," he added to applause at ITE College Central.

Marriage as defined in the Interpretation Act and the Women's Charter is between a man and a woman, and many national policies rely upon this, including public housing, education, adoption rules, advertising standards and film classification, he said.

PM Lee said the Government has no intention of changing the definition or these policies.

However, as the law stands, marriage as it is defined can be challenged on constitutional grounds in the courts, just like Section 377A has been challenged, he added.

For same-sex marriages to be legalised this way would not be ideal, as Parliament may not be able to restore the status quo ante even if the majority of MPs opposed the changes, since changing the Constitution would require a two-thirds majority, he added.

Ultimately, judges are trained and appointed to interpret and apply the law, and have neither the expertise nor the mandate to rule on social norms and values, he said.

"These are fundamentally not legal problems, but political issues."

PM Lee said this has been wisely acknowledged by the courts when dealing with such cases.

If those seeking change try to force the pace through litigation, which is by nature adversarial, it would inflame tensions and polarise society, he added.

He urged restraint and called on all sides to avoid aggressive and divisive activism, warning that if one side pushes too hard, the other side will push back even harder.

In some Western societies, this has resulted in culture wars with society splitting into warring tribes, a direction that Singapore should not go down, he cautioned, adding that there are already some signs of such developments here.

Expressing hope that the new balance will enable Singapore to remain a tolerant and inclusive society for many years to come, he said: "What we seek is a political accommodation that balances different legitimate views and aspirations among Singaporeans.

"For some, this will be too modest a step. For others, it will be a step taken only with great reluctance, even regret. But in a society where diverse groups have strongly held opposing views, everyone has to accept that no group can have things all their way."