NDR 2022: Govt will repeal Section 377A, but also amend Constitution to protect marriage from legal challenges

The announcement comes months after the Court of Appeal ruled that Section 377A was unenforceable in its entirety. PHOTO: ST FILE

SINGAPORE - Singapore will repeal Section 377A of the Penal Code, Prime Minister Lee Hsien Loong said on Sunday (Aug 21), confirming months of speculation that the Government might move on the law criminalising sex between men.

But to guard against the move triggering a drastic shift in societal norms, the Government will also amend the Constitution to protect the definition of marriage as one between a man and a woman to stave off future legal challenges, he added.

Explaining the rationale for repeal, he noted that there is a significant risk of the law being struck down by judges 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 comes months after the Court of Appeal ruled in February this year that Section 377A of the Penal Code 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 Section 377A would remain on the books, but cannot be used to criminalise gay sex - going further than the Government's earlier promises that the law would not be proactively enforced on consensual sex between men.

On Sunday, PM Lee said that following this judgment, Minister for Home Affairs and Law K. Shanmugam and Attorney-General Lucien Wong have advised the Government that in a future court challenge, there is a significant risk of the law being 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 a passionate debate on the topic with fierce arguments from both sides.

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 on Sunday.

PM Lee noted that Section 377A was originally introduced in the 1930s by the British colonial government, and reflects moral attitudes and social norms that prevailed back then.

He said that over time, homosexuality has become better understood scientifically and medically, resulting in greater acceptance of gay people for who they are instead of being shunned and stigmatised. This has been so in Singapore and many other societies, he added.

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Many countries with similar laws have since repealed them, including several Asian countries, PM Lee added.

"It is timely to ask ourselves again the fundamental question: Should sex between men in private be a criminal offence?" he said, adding that it is a sensitive issue that needs to be resolved.

"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.

PM Lee acknowledged that Singaporeans still have differing views on whether homosexuality is right or wrong, but said most people accept that a person's sexual orientation and behaviour is a private and personal matter, and that sex between men should not be a criminal offence.

Even among those who want to retain Section 377A, most do not want to see it being actively enforced, he said. From the national point of view, private sexual behaviour between consenting adults also does not raise any law-and-order issue, he added.

"There is no justification to prosecute people for it, nor to make it a crime."

The months-long government review on what to do with the law had attracted pushback from religious groups and conservative Singaporeans, who have raised concerns that it could pave the way for LGBT activists to push for marriage equality.

Acknowledging these concerns, PM Lee said it had come through clearly over several months of engagement on the issue that while some feel strongly about keeping Section 377A itself, many of those who had reservations about the law being abolished 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, said PM Lee, adding that the Government, too, does not want the repeal to trigger wholesale changes in society.

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 said.

"This will help us to repeal S377A in a controlled and carefully considered way. It will limit this change to what I believe most Singaporeans will accept, which is to decriminalise sexual relations between consenting men in private," he said.

"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 from the audience at the Institute of Technical Education headquarters in Ang Mo Kio.

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

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

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

For same-sex marriages to become recognised here like that 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 in their judgments dealing with such cases.

SPH Brightcove Video
Constitutional law expert, Mr Eugene Tan, and Associate Professor of Law at the Singapore Management University, explains how marriage may be constitutionally protected.

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

He called on all sides to avoid aggressive and divisive activism, noting 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, contempt for opposing views, cancel culture and bitter feuds splitting society into warring tribes, and Singapore should not go in this direction, he cautioned, adding that there are already some signs of such developments here.

He urged all groups to exercise restraint and work hard to keep society harmonious so Singapore can move forward together.

"What we seek is a political accommodation that balances different legitimate views and aspirations among Singaporeans," he added.

"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."

He said: "I hope the new balance will enable Singapore to remain a tolerant and inclusive society for many years to come."

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