Petir explains: Why repeal Section 377A now?

24/08/2022

In case you missed it, Prime Minister Lee Hsien Loong said during his National Day Rally speech that Singapore will repeal Section 377A of the Penal Code and also amend Constitution to protect marriage from legal challenges.

Here, Petir.sg explains the history behind Section 377A and the reason for repealing it now.

Why do we have Section 377A? 

Section 377A is a remnant from Singapore’s past under British colonial rule. Introduced to Singapore’s Penal Code in 1938, it criminalises “any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person”. 

Lots of legal jargon here, but in essence, any man who has sex with another man, even in private, commits a crime. The punishment? Up to two years of jail time. 

When the British left Singapore, they left this piece of legislation behind which remained until now. Over the years, various folks who saw Section 377A as discriminatory and unconstitutional mounted legal challenges against Section 377A, with the aim of striking it down.

Singapore inherited Section 377A from our colonial times. Image credit: The British Library.

Those challenges failed. Time and time again, the judiciary ruled that even though Section 377A was not actively enforced, it sent a moral signal by reflecting societal mores — hence, it was not redundant. Even as late as March 2020, the High Court ruled that Section 377A was not unconstitutional because it did not violate any articles in Singapore’s Constitution. 

However, in the most recent judgement in February 2022, the Court of Appeal chose to reserve judgement on one aspect of the challenge – whether or not Section 377A is in breach of Article 12 – or the Equal Protection provision – of Singapore’s Constitution. Article 12 guarantees that all persons in Singapore will have equality before the law and equal protection of the law.

According to Minister for Law K Shanmugam, the Court of Appeal said that Section 377A could be in breach of Article 12 and hence could be interpreted as unconstitutional:

“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.”

Here lies the “significant risk” that PM Lee spoke of in his speech, in the event that the government does not repeal Section 377A now.

What could happen if the government does not repeal Section 377A now?

Imagine if Section 377A is not repealed now. Some time in the near future, someone successfully wins a court challenge against Section 377A. The judiciary will rule that it is unconstitutional, forcing Parliament to amend the Constitution whether or not society is ready for it. 

Here, we must remember that the judiciary’s job is to interpret laws, not decide on whether certain pieces of legislation are aligned with social mores. That is the job of our elected representatives in government. 

Once Section 377A is struck down on the basis that it breaches the Equal Protection provision, the same constitutional challenge can quickly be made against other things – things like marriage (that is defined as a union between one man and one woman).

And that is where the slippery slope becomes an overhanging cliff.

Many of Singapore’s policies are shaped around this current definition of marriage, an indicator of Singapore’s belief that the family unit is the basic building block of society. 

Think about it: Married couples get to buy BTOs, and receive generous housing grants and tax incentives. New parents get substantial Baby Bonuses to kickstart their family life. Married couples get the exclusive right to adopt. 

If marriage between one man and one woman only becomes defined as unconstitutional, many of Singapore’s policies, like those relating to housing, education, and media, will have to be re-jigged overnight.

But more than that, forcing a constitutional challenge to the definition of marriage when society is not ready for it can have devastating consequences – just look at what is happening in the U.S. after its Supreme Court overturned abortion laws. 

Cover photo credit: Mark C on Unsplash