Section 377A: Unlike courts, Parliament considers public views

Shanmugam says depending on the legislation, public opinion is often relevant during policymaking


Whether Section 377A will be repealed or amended will be a matter for Parliament to decide, said Law and Home Affairs Minister K. Shanmugam yesterday.

He added that depending on the legislation, public opinion is "often relevant" during policymaking in Parliament. Section 377A is the law that criminalises consensual sex between adult men.

India's Supreme Court had on Thursday ruled that homosexuality was not a crime, in a decision that decriminalised Section 377 of the Indian Penal Code.

The minister was speaking to the media yesterday about the Indian Supreme Court statement that the constitutionality of the law does not depend on public opinion, on the sidelines of a Ministry of Home Affairs event.

Mr Shanmugam said "that is the jurisprudential approach that many courts around the world, including Singapore, take". "What the public thinks, whether it's a majority view or minority view, these are usually not considerations. You look at the law and you compare it against the Constitution," he added.

However, when it comes to whether a piece of legislation should be amended or repealed, that would be a matter for the Executive and the Parliament, he added.

In Singapore, the Executive comprises the Cabinet.

"The Executive proposes and Parliament decides and usually, depending on the legislation, public opinion can be relevant," he said.

When asked whether Section 377A can be challenged again in Singapore courts, Mr Shanmugam said: "Technically, it is possible for people to bring a challenge and there are rules, jurisprudence on how such challenges will be dealt with by the courts."

A legal challenge to strike down Section 377A failed in 2014, when the highest court in Singapore rejected arguments that the provision contravened the Constitution.


Gay couple Gary Lim, 46, and Kenneth Chee, 38, as well as Mr Tan Eng Hong, 51, had said the provision was discriminatory and should be declared void by the court.

On Thursday, former ambassador Tommy Koh had called for Singapore's gay community to challenge Section 377A, following India's scrapping of the same British colonial-era legislation.

Professor Koh had made the comment in a Facebook post by Professor Simon Chesterman, dean of the Faculty of Law at the National University of Singapore, about the ruling.

Mr Shanmugam had said on Friday that Singapore society has to decide which direction it wants to go on the issue of Section 377A.

He said: "(In Singapore) if you look at this issue, it is a deeply split society. The majority are opposed to any change to Section 377A, they are opposed to removing it."

However, he said a "growing minority" want to have it repealed.

"The Government is in the middle," he added.

Yesterday, Mr Janadas Devan, chief of government communications at the Ministry of Communications and Information, reiterated Mr Shanmugam's comments in a Facebook post.

He added that the "uneasy compromise" on Section 377A - a term used by Prime Minister Lee Hsien Loong during a BBC interview last year - "remains the only viable position" for Singapore at the moment.

"Given the majority view, the law remains on the books. But the Government does not and will not enforce 377A," said Mr Devan, adding that this was the view held by all three prime ministers, including the late Mr Lee Kuan Yew.

He noted that the founding prime minister had said homosexuality should not be criminalised because he believed it was genetically determined.

However, in his Facebook post, Mr Devan also highlighted that the late Mr Lee had said the law should not be changed in such a way that it upsets the "sense of propriety and right and wrong" of the majority. Also, people should not "go around like this moral police - barging into people's rooms".

Meanwhile, an online petition by a netizen to keep Section 377A in Singapore has garnered more than 34,000 names inabout 10 hours, after it was started at 2pm yesterday.

A version of this article appeared in the print edition of The Sunday Times on September 09, 2018, with the headline 'Section 377A: Unlike courts, Parliament considers public views'. Subscribe