SINGAPORE - Law academics and senior members of the legal fraternity on Monday said repealing Section 377A of the Penal Code, which criminalises sex between men, is the right move. There was a real risk of the law being struck down by the courts in a future legal challenge, and doing away with it through the democratic process in Parliament would be less messy, they said.
Also, the sheer existence of the law, even if it is not used, will continue to cause societal rift between those who oppose the law and those who support it, they added.
They were at a discussion with Home Affairs and Law Minister K. Shanmugam on the implications of a February judgment by the Court of Appeal on the constitutionality of Section 377A. Prime Minister Lee Hsien Loong had cited the case when he announced in August that the Government would repeal the law.
He had said that following this judgment, Mr Shanmugam and Attorney-General Lucien Wong advised the Government there was a significant risk of the law being struck down in future on the grounds that it breaches Article 12 of the Constitution - the Equal Protection provision. He had also said repealing the law was the right step as attitudes have changed and many do not think sex between men in private should be a criminal offence.
On Monday, Mr Shanmugam said the apex court's decision in February in the case Tan Seng Kee v Attorney-General strongly suggested that Section 377A might be unconstitutional. In the decision, the court suggested that the law could violate Article 12 of the Constitution if a particular approach were taken to evaluate it, he added.
The court had also held that the three men who brought the case did not have the locus standi, or standing, to challenge the law, since there was no real risk of prosecution under Section 377A.
But Mr Shanmugam noted that the court in February had limited itself to considering the lack of standing with regard to prosecution and not investigations by the police. This means it was possible for the court to rule differently on the issue of standing in future, based on a different set of facts.
Agreeing with these points, Law Society president Adrian Tan and Singapore University of Social Sciences law school dean Leslie Chew said the judgment had made it quite obvious that there was a risk the law could be found unconstitutional in future.
National University of Singapore associate professor of law Jaclyn Neo said the Court of Appeal had significantly changed the test that it uses to assess whether differential treatment of certain groups would violate the right to equal protection under the Constitution.
This has put Section 377A on more shaky ground, she added.
University of Hong Kong professor of law Michael Hor said that although the court had declared that the law cannot be used, it was only "half dead" and there were still other "zombie bits" that were "not quite dead yet". For instance, there may be other secondary offences such as abetment that may be predicated on the intention to commit offences under Section 377A, and it is not clear if these are bound by the current legal position.
Prof Hor also said "the societal and psychological damage" caused by the sheer existence of the law cannot be ignored, and that it will continue to breed ill will against gay men and cause them to feel excluded and inferior.
Mr Tan said the broader question is how Singaporeans would prefer to effect change in society. When laws are changed through a litigious court process, it is messy and brutal with interconnected laws left hanging, but when they are changed through the democratic process in Parliament, related laws can be dealt with at the same time, he said.
Prof Chew said the court is also not the best forum to decide on the extra-legal issues thrown up by the constitutionality of Section 377A.
"In Singapore, we... have not politicised many of our issues, and we should not because it really, properly belongs to the people, rather than the court, where at the end of the day, it's adversarial," he added.
In his remarks, Mr Shanmugam said the Government had four options to deal with Section 377A: do nothing; amend the Constitution to prevent court challenges to Section 377A; leave Section 377A alone and amend the Constitution to prevent court challenges to the definition of marriage; or repeal Section 377A and amend the Constitution to prevent court challenges to definition of marriage.
He said the Government had chosen to repeal the law and protect the definition of marriage, as it was the principled and right thing to do. He added that if Section 377A is struck down, the definition of marriage would likely be challenged, and the Government had assessed that society was not ready for such a sea change overnight.
Prof Hor asked why Section 377A and the definition of marriage were being treated differently. "Section 377A might be struck down by the courts, so we repeal it first. Marriage definition might also be struck down by the courts, but we protect it... Why the different treatment?" he said.
Mr Shanmugam replied: "If Section 377A is a matter for Parliament, marriage is even more a matter for Parliament."
He added: "If anybody wants to change the definition of marriage, if that's what Singaporeans want, somebody has got to organise themselves, put it on your manifesto, go into the general elections arguing that this is what you stand for, win the elections, change the law. That is how a democracy ought to work."
At the end of the session, Singapore Management University professor of law Lee Pey Woan, who was the moderator, asked the audience of about 90 lawyers, law academics and students if anyone disagreed with the view that there was a real risk Section 377A could be struck down for being unconstitutional. No hand was raised.
