Shanmugam on India decriminalising gay sex: Singapore society to decide which direction to take

SINGAPORE - Singapore society has to decide which direction it wants to go on the issue of Section 377A, the law which criminalises sex between men, said Minister for Law and Home Affairs K. Shanmugam.

Speaking to the media on Friday afternoon (Sept 7), Mr Shanmugam spoke on the ruling in India's Supreme Court on Thursday that decided that homosexuality was not a crime. It decriminalised Section 377 of the Indian Penal Code, which made consensual gay sex a crime.

When asked about the ruling, Mr Shanmugam 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However, he said a "growing minority" want to have it repealed.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.

He said the issue relates to social values and added: "Can you impose viewpoints on a majority when (the issue is) so closely related to social value systems?"

Mr Shanmugam said that in his personal point of view, care has to be taken against criminalising lifestyles and sexual attitudes, and treating people involved as criminals.

"(But) it would be wrong for me to impose my personal views on society or as a policymaker."

 
 
 
 

He added: "So really, I think society has got to decide which direction it wants to go. And the laws will have to keep pace with changes in society and how society sees these issues."

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

"I would encourage our gay community to bring a class action to challenge the constitutionality of Section 377A," Professor Koh wrote.

He made the comments in response to a Facebook post by Prof Simon Chesterman, dean of the Faculty of Law at the National University of Singapore. Prof Chesterman shared a New York Times story on the ruling, congratulating a former classmate and others on the change.

When a Facebook user reminded Prof Koh that previous legal challenges in 2014 on the constitutionality of the law failed, he replied: "Try again."

In 2014, the highest court in Singapore upheld Section 377A, rejecting arguments that the provision contravened the Constitution. Gay couple Gary Lim, 46, and Kenneth Chee, 38, as well as 51-year-old Tan Eng Hong, said that the provision was discriminatory and should be declared void by the court. 

Their argument was that Section 377A infringed their right to equal protection under the law, as guaranteed by Article 12 of the Constitution, and violated their right to life and liberty, as guaranteed by Article 9.

But the court held that Section 377A did not violate Article 9 as the phrase “life and liberty” referred only to the personal liberty of a person from unlawful incarceration and not to the right of privacy and personal autonomy.

As for Article 12, the court held that Section 377A passed a classification test used by the courts in determining whether a law complies with the constitutional right of equality.

The court also ruled that Section 377A fell outside the scope of Article 12, which forbids discrimination of citizens on grounds including religion, race and place of birth. The court observed that Article 12 did not contain the words “gender”, “sex” and “sexual orientation”, which related to Section 377A.