Singapore set to repeal homosexual law

Singapore (Picture: UN) 

By Ivan Lim
Former AJA President, Contributor to AsiaN

SINGAPORE: 

A contentious decades-old law that criminalises sex between men but not women will be axed as the Singapore authorities found it increasingly legally untenable in the face of  challenges to its constitutionality.

The repeal of Section 377A of the Penal Code will, however, be accompanied by an amendment to the Constitution to protect the tradition of marriage as a union of male and female.

The government is taking this extra step to prevent an embolden gay lobby from mounting legal challenges to the conventional institution of family.

The proposed changes were the highlights of Prime Minister Lee Hsien Loong’s National Day Rally speech on August 21.

“This will bring the law into line with current social mores, and I hope, provide some relief to gay Singaporeans, he said.

“But at the same time, most Singaporeans do not want the repeal to trigger a drastic shift in our societal norms across the board, including how we define marriage, what we teach children in schools, what’s shown on free-to-air television and in cinemas, or what is generally acceptable conduct in public.”

“As the law stands, this definition of marriage can be challenged on constitutional grounds in the courts, just like section 377A has been challenged. And this has indeed happened elsewhere.

“If one day such a challenge succeeds here, it could cause same-sex marriages to become recognised in Singapore.”

Mr Lee described in his speech the issue as a political problem – one involving liberal-conservative values dividing society that has to be resolve by the legislature instead of the judiciary.

The government’s new stance on Section 377A was prompted by what PM Lee said was the advice of the legal authorities of the risk that Section 377A could be ruled unconstitutional by the court for being incompatible with the provision on equality.

Observers noted the impact of an Indian Supreme Court’s unanimous decision in 2018 to strike down a similar Section 377 Act that outlawed “unnatural offences of carnal intercourse”. Chief Justice Dipak Misra said the outdated law was “irrational, indefensible and manifestly arbitrary.”

Acting on the landmark ruling, prominent Singaporeans came out to voice support for the gay cause. Professor Tommy Koh, long-standing Ambassador-at-Large, urged the gay community to file a class action to challenge the constitutionality of the law enacted by British Raj in 1938.

Going further, he urged the Court of Appeal to reverse its “wrong” verdict that Section 377A was not unconstitutional – ruling it offered equal protection to all, regardless of sexual orientation. Earlier, three civil suits filed by gays citing charter articles on equality, liberty, and freedom had been dismissed by judges who ruled that Section 377A served as a moral benchmark reflecting societal values and norms.

The well-respected diplomat pointed out that 124 out of the 196 United Nations member-states, including China, Japan, South Korea, Hongkong and Taiwan, do not criminalise sodomy.

Weighing in, the government’s chief of communications, Mr Janadas Devan, said in his personal capacity that 377A is a “bad law” and should go, “sooner rather than later”.

The chairman of Singapore Management University, Mr Ho Kwon Ping, said that under the notion of rule of law, it was untenable for the government to keep Section 377A and not enforce it.

Another factor in the policy reversal was largely the youth-driven shift of public opinion towards accepting the LGBT+ minorities. An Institute of Policy Studies survey in 2013 and 2018 showed that those who believed homosexuality is not wrong had risen from10.3 per cent to 21.6 per cent.

The younger generation is a voting bloc in Singapore for any party in elections.

The ambiguous policy towards homosexuals was set by founder-prime minister Lee Kuan Yew in early 2000s. He had subscribed to the scientific view that homosexuality is a genetic variation, and had articulated a “two don’ts” line:

One: Don’t change the law, it will upset the sense of propriety and right and wrong of the majority; and

Two: Don’t go around like the moral police —barging into peoples’ rooms.

Even so, Mr Lee, who died in 2015, had said that it was a matter of time before homosexuals are accepted here.

The task of effecting the historic change has fallen on the shoulders of the younger Lee, who has sought to strike a new social balance on the homosexual issue.

He said: “(We are) limiting change to decriminalising sex relations between consenting men in private and retain basic family structure of a marriage between a man and a woman.”

The government is seen as acting to pre-empt the activist LGBT+ lobby from pushing for same-sex marriages or alternative forms of family. A case in point is the recent Indian Supreme Court ruling that family benefits under the law must be extended to blended families, same sex couples.3/…

Not surprisingly, both sides of the gay divide have joined in renewed debate on the outcomes from    the proposed changes on the controversial Section 377 A of the Penal Code.

There was a collective sense of relief among gays that, at long last, their ordeal of discrimination at workplaces or possible harassment would be over soon. Oogachaga, a non-profit professional counselling and educational body for the lesbians, gays, bisexual, transgenders and queers (LGBTQ) community, described the proposed repeal as “a powerful statement that state-sanctioned discrimination has no place in Singapore”.

But it decried any government plan to introduce further legislation or constitutional amendments that could “signal LGBTQ+ people as unequal citizens.”

In contrast, religious organisations have called for the safeguard on marriage to come before repeal of Section 377A.

“Otherwise, we will be taking a slippery road of no return,” said the Roman Catholic Archdiocese of Singapore in a statement.

The National Council of Churches of Singapore expressed fears that the repeal would lead to “advocacy for civil unions to be galvanised”.

The Islamic Religious Council of Singapore said: ”Any form of LGBTQ+ advocacy should respect the values that the Muslim community holds dear in practicing its faith. If our religious values and beliefs are challenged openly and aggressively, this will inevitably transform the public space into one that is confrontational and divisive.”

The city-state’s long-awaited repeal of Section 377A may be seen as a concession to the gay community but not at the expense of the conservative core and religious tradition. A pragmatic way of healing a societal divide that is uniquely Singaporean.