The right & responsible thing to do: K Shanmugam on repealing S377A

29/11/2022

It is the right thing to do, and society is now more ready for its repeal. And there is an overall legal risk that the Courts will strike it down; this will lead to wide-ranging consequences.

These are the Government’s two main reasons for repealing s377A.

“We should do so. There are no public order issues that are raised from such conduct. So it should not remain criminal,” said Minister for Law K Shanmugam in Parliament Monday (Nov 28) on this first point.

“If the Courts strike down s377A, it will be a binary process,” the Minister added.

“They cannot deal with all the legitimate concerns about the consequential effects of the Repeal, which have been talked about.”

“Gay people are not criminals”

Minister Shanmugam stated in his speech that gay people deserve dignity, respect and acceptance.

“Most gay people do not cause harm to others,” said the Minister.

“They just want to live peacefully and quietly, and be accepted as part of society. The same as any other Singaporean.”

“They are our family, our friends, our colleagues,” he added.

“To a gay person, even if s377A is not enforced, it is there. Memorialised in law, a sword hanging over his head. A daily reminder that every time he engages in private sexual activity behind closed doors, in the sanctity of his bedrooms, he is a criminal.”

The Minister also added that the Government’s engagement sessions show that most Singaporeans accept that sex between men should not be a crime.

“Even those who want to retain s377A do not want to see it actively enforced,” he pointed out.

The function of criminal law

Minister Shanmugam also noted that that societal and religious opposition to homosexuality exists.

“A survey of more than 22,000 people by the Public Religion Research Institute in March 2022 found that 48 per cent supported same-sex marriage and 50 per cent opposed it,” he said.

“Within the same religion, the same denomination, the same churches, within the denomination. And in wider society within some Western countries — even those who are often described as ‘liberal’ — the issues remain deeply divisive,” he added.

The Minister clarified that while homosexuality is considered a sin in some religions, indeed “some sins are crimes”.

“But not every sin is a crime.”

“Our position in Singapore for conduct to be a crime, there should generally be a public order or public interest issue,” he laid out.

“It is similar to the position set out by the Wolfenden Committee. The basic function of criminal law is to preserve public order and decency, to protect citizens from what is offensive and injurious, and to provide sufficient safeguards against exploitation and corruption of others.”

“In Singapore, like in many other places, it is generally not the function of Criminal Law to intervene in the private lives of citizens.”

The legal risk and a middle ground

At the same time, the Courts may strike down s377A in the future.

“If the Courts strike down s 377A, it will be a binary process,’ warned Minister Shanmugam.

Here, he pointed out that the 2022 Tan Seng Kee v AG case puts s377A at significant risk of being struck down in future judgements.

“There is no middle ground, no balancing of competing interests,” said Minister Shanmugam about Court judgements.

“The Courts cannot consider competing social norms and social consequences of their decisions. If they strike down s 377A, they will do so without being able to consider the consequential effects of that decision on the definition of marriage, for example.”

Doing what is good for Singaporeans

And that “a cascading effect” can start if the definition of marriage is changed through a Court challenge.

“It could impact questions relating to same-sex marriage, media content, housing policies and so on,” said the Minister.

For example, it could be asked why should we only give housing benefits to heterosexual married couples; it could be argued that this is unequal under Article 12 of the Constitution.

Or higher age ratings for media content showing same-sex family units could be argued to curtail freedom of expression under Article 9.  

“Such changes through the Courts are not in our interests,” said Minister Shanmugam.

“If we want to act in the best interests of Singapore, then we have to move on this, given the legal analysis.”

“We can look at the United States to see how Court decisions on such issues can seriously affect the fabric of society, divide the society, unleash partisan views on both sides of the divide.”

If we have that in Singapore, our societal fabric will fray, warned the Minister.

“Knowing all these risks, and refusing to take a position, or being clear in how we will deal with it is avoiding our responsibilities as MPs,” he concluded.

“It is easier, politically. But it is also worse for Singapore and Singaporeans.”

“Because we would be putting — taking this as a deliberate decision — political capital over doing what is good for Singaporeans.”