Section 377A: Court of Appeal said law on sex between men could be unconstitutional, says Shanmugam

Home Affairs and Law Minister K.Shanmugam (right) said the courts have exercised restraint in such political issues. ST PHOTO: JASON QUAH

SINGAPORE - The Court of Appeal had signalled that the law criminalising gay sex could be discriminatory and the courts may have to deal with the issue in future, said Home Affairs and Law Minister K.Shanmugam.

And it would be irresponsible for the Government to do nothing about the matter, he said in an interview on Monday on repealing Section 377A of the Penal Code.

In his National Day Rally, Prime Minister Lee Hsien Loong had cited the apex court's February judgment as an important factor in the Government's decision to act.

The court had ruled the law unenforceable in its entirety and contemplated that it could be unconstitutional. Mr Shanmugam, with Attorney-General Lucien Wong, advised the Government there was a significant risk of Section 377A being struck out in a future challenge.

He said: "Looking at the Court of Appeal's comments, and the state of the law as it is, we have to make a careful logical assessment."

"There was a significant risk that Section 377A might be ruled unconstitutional in a future case. And the legal risk is not only to Section 377A. After that, the definition of marriage itself can be challenged."

The three gay activists who filed the constitutional challenge had argued that the law is in breach of Article 9 of the Constitution which protects life and personal liberty, as well as Article 14 which protects freedom of speech and expression.

The Court of Appeal, led by Chief Justice Sundaresh Menon, dismissed them, noted the minister.

Yet, when it came to the argument on Article 12 which guarantees equal protection under the law, the court had ventured to consider various scenarios, he noted.

Even though it said it was not going to rule on the matter, it expressly said there were two ways Article 12 could be applied, and under one of them, Section 377A could be unconstitutional, he said.

"The Court added that they did not have to decide on the right test now. They left it to 'a suitable occasion in the future', which in my view means they can, and probably will, decide it in future," he added.

"Subsequently, in other cases, the Courts seem to have accepted the test which - if applied here - could mean Section 377A is likely to be held unconstitutional."

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Mr Shanmugam said the courts have exercised restraint in such political issues.

"If, however, Parliament doesn't deal with a law which is potentially unconstitutional, you may then leave the Courts with no choice. They have to interpret, and if a law is unconstitutional, they may well say so."

The Government decided to act as it was the right thing to do, he said. It would be politically expedient to have "just kept quiet, put on the helmet, go into the bunker, and pretend that nothing is happening, leave it to the courts".

"By taking these steps - and these are not vote-winning steps - it's going to make people unhappy when they believe that a different course of action is the right course of action," said the minister.

It would have been wrong to continue criminalising gay men for their sexuality, he added. "Nobody deserves to be stigmatised because of their sexual orientation. So repealing Section 377A, removing their pain, is the right thing to do."

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