Why repealing Section 377A now shouldn’t be seen as a lose-lose for all

25/08/2022

Prime Minister Lee Hsien Loong’s announcement that Singapore will be repealing Section 377A of the Penal Code was met with a mixed bag of emotions. 

LGBT groups hailed the move as a “significant milestone” even though the corresponding decision to grant Parliament the power to define marriage to be between a man and a woman was seen as “disappointing”. 

On the other end of the spectrum, different religious groups have welcomed the government’s assurance that marriage will still be kept between a man and a woman, even as the move to decriminalise sex between men was viewed with apprehension. 

It seems that this tug-of-war has reached an uneasy stalemate; a slight pull in either direction threatens to rend apart our fragile social fabric. It’s unsurprising, given how polarising this issue is, but a closer reading will reveal that it’s in fact not a lose-lose situation for all parties.

Why repeal now and what will happen if we don’t repeal?

We touched on this topic in this explainer.

But here’s a TL;DR: Because If Section 377A is not repealed now, someone may successfully wins a court challenge against Section 377A in the near future. It will be ruled by the Courts as unconstitutional, forcing Parliament to amend the Constitution whether or not society is ready for it. But it’s the MPs’ jobs to decide on whether pieces of legislation are aligned with social mores. Plus, when 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) – even when society is not ready for it.

Is not / must not become a matter of which side wins

So, looking at it from where we are, the Government’s decision to repeal Section 377A through Parliament now instead of leaving it to the Supreme Court is a shrewd one. 

It allows the government – our elected representatives in this democracy – to move on its own terms (in a “controlled and carefully considered way” said PM Lee), aligned to the social mores of the day. 

Granting Parliament the prerogative to define marriage is also the right move because it is the responsibility of parliamentarians – representatives of the people – and not the judiciary, to serve as a barometer of societal attitudes to different issues. 

It is the responsibility of parliamentarians, not the judiciary, to move on social issues like Section 377A. Image credit: Parliament of Singapore. 

Yes, repealing Section 377A but keeping marriage exclusive to heterosexual Singaporeans is a “modest” step for some – even PM Lee acknowledged this in his speech.

However, the real benefit of repealing Section 377A is far more intangible. 

Deputy Prime Minister Lawrence Wong said in a recent Bloomberg interview that this piece of legislation serves as a marker for  “society, societal values, family, and marriage”. 

Repealing it is an indicator that society is far more accepting of LGBT folks today. The repeal bears heavy significance beyond mere decriminalisation; its positive effects will cascade far downstream. 

As PM Lee said in his speech, this is a political accommodation. This is not a matter about which side is winning. Because ultimately, when we, a diverse society, are able to move forward without causing deep rifts between us, everybody wins. 

Cover photo credit: PM Lee Facebook