THE STATUS QUO ON 377A WORKS. WHY DISRUPT IT NOW?

On 3 March 2022, Minister Shanmugam announced the Government was reviewing and “considering the best way forward” on Section 377A of the Penal Code.

Subsequent comments followed on 30 July 2022. In response to media queries, Minister Shanmugam shared that the Government had undertaken discussions with selected groups.

“Many agree that men who have sex with each other should not be thrown into prison; gay sex should not be criminalized. At the same time, most do not want any decriminalization to cause other major changes. In particular, most people we’ve spoken with want the current position on marriage to be retained”, he said.

“The two questions we are dealing with are therefore: One, what is to be done with Section 377A. Two, at the same time, we are also considering how can we safeguard the current legal position on marriage from being challenged in the courts.”

A recent CNA article referenced the possibility of a repeal of 377A, coupled with an amendment to the Constitution on the current definition of marriage. Admittedly, it’s an interesting question – but it also puts the cart before the horse.

The first question that Singapore should be asking, is “why now”?

LEGAL URGENCY: REAL OR IMAGINARY?

Minister Shanmugam’s announcement on 3 March referenced the Court of Appeal decision on 377A made on 28 February 2022 (“Tan Seng Kee”).

We spoke to a number of legal experts to consider whether the decision in Tan Seng Kee provides a justification for disturbing the status quo on 377A. For example, did Tan Seng Kee materially increase the risk of 377A being struck down by the Courts?

Many took the view that it did not.

In Tan Seng Kee, the Court of Appeal effectively blocked off further legal challenges to 377A by ruling that it is now “unenforceable in its entirety” (Tan Seng Kee at [149]). In coming to its decision, the Court took an exceptional recourse to the doctrine of substantive legitimate expectations. It referred to the Attorney-General’s press release in 2018 that prosecution of private sexual conduct between two consenting adults would not be in the public interest, and how Parliament, the Government and the Attorney-General had taken congruent positions with regards to the general non-enforcement of 377A.

The Court stated that its ruling is to have the effect of:

• “providing homosexual men with the full measure of accommodation contemplated by the Government and expressed by the Prime Minister during the s 377A Debates”; and

• “preserving the legislative status quo on s 377A and reserving the matter of its retention or repeal for further consideration by the Government and Parliament at an appropriate time”

(Tan Seng Kee at [151]).

Given that 377A is unenforceable in its entirety, no one in Singapore can be said to face any real or credible threat of prosecution under 377A. The Court explained that this situation would only change unless and until the Attorney-General provides clear notice that he will no longer abide by the prosecutorial policy in the press release in 2018.

Therefore, insofar as no one within Singapore would be prosecuted under 377A, no one in Singapore can actually mount any fresh challenge in Court against the constitutionality of 377A. Without any legal challenge in Court, the risk of 377A being struck down by the Court would be zero.

With its decision in Tan Seng Kee to declare 377A as unenforceable in its entirety, the Court of Appeal thus took the active step in stemming any new legal challenges against the constitutionality of 377A. The Court of Appeal concluded that “377A has not been repealed, but neither can it be enforced” (Tan Seng Kee at [154]). It thus appears from the decision in Tan Seng Kee that the Court of Appeal is content to leave the issue of 377A to the democratic process for now. At the very least, there is no legal urgency to disrupt the status quo mere months after it was achieved. Arguably, one could say that the Court of Appeal not only kept the status quo but even entrenched it. The Court of Appeal’s decision also serves as a clear indication of its deference to the democratic process, suggesting that any further changes to 377A should come from Parliament rather than the courts. This stance aligns with the High Court ruling on 377A, which similarly emphasized the need for legislative reform rather than judicial intervention in sensitive social issues. Overall, the Court of Appeal’s decision in Tan Seng Kee demonstrates a cautious and conservative approach to addressing the constitutionality of 377A.

IS THERE A CONSENSUS AMONGST SINGAPOREANS FOR THE REPEAL OF 377A? – NOPE

The Minister’s comment that “many agree that men who have sex with each other should not be thrown into prison; gay sex should not be criminalized” was curious.

Given that it is now legally unenforceable in its entirety, 377A does not raise the issue of whether gay men will be thrown into prison. Why then should it be offered as a preambulatory reason when it is entirely irrelevant to this discussion?

Instead, as with the uniqueness of Singapore as a nation, 377A represents a uniquely Singaporean compromise.

The non-enforcement of 377A allows LGBT-identifying citizens to live freely in Singapore, without harassment or interference, in peace. At the same time, 377A protects public morality; and the presence but non-enforcement of 377A in the Penal Code symbolises that homosexuality is to be tolerated but not normalised.

Some argue that the political compromise is “legally untidy”. That may be true by standards of legal parsimony. Yet the law exists to serve the interests of society, and the current equilibrium should be protected because it works. It would be misplaced to prioritise the value of legal tidiness over the real day-to-day lives of Singaporeans.

If traditional family values remain the priority, why change the status quo when it precisely serves that interest?

Further, to the extent that the Minister was suggesting (through the phrase “gay sex should not be criminalized”) that there is a consensus for the repeal of 377A, this appears to contradict the 2022 IPSOS survey, where only 20% of respondents opposed 377A (cf. 45% of respondents who supported 377A, and 36% who were either neutral or preferred not to share their views).

The Protect Singapore Townhall held on 23 July 2022, with approximately 1,200 people in attendance, also called for the retention of 377A, at least until and unless there were adequate safeguards, such as the inclusion of marriage as between a man and a woman in the Constitution.

These indicate that there is no consensus for 377A to be repealed; and that, in fact, there are more Singaporeans in support of retaining 377A than those in support of repeal.

Unfortunately, the nature of closed-door discussions held by the Government means that there is no publicly available information to verify (or disprove) the media statements by the Government regarding the tone of these discussions.

To date, the Government has announced no plans to undertake a public consultation on the issue, or its intentions on any new political package.

DOES EVIDENCE SINCE 2007 SUPPORT REPEAL AS GOOD FOR SINGAPORE?

In 2007, Prime Minister Lee Hsien Loong said, “If we abolish [377A], we may be sending the wrong signal that our [conservative] stance has changed and the rules have shifted… I think the gay activists will push for more… [and] instead of forging a consensus, we will divide and polarise our society.” He concluded by urging Singapore to “stay one step behind the frontline of change [and] watch how things work out elsewhere before we make any irrevocable moves.”

15 years later, LGBT activists in Singapore have acknowledged that repealing 377A is only the first step. In 2018, Pink Dot announced a list of 10 demands, including thinly veiled aims for the normalisation of LGBT sexuality in schools and the media. On 4 July 2022, IndigNation started preparing for a new conference titled “Beyond Repeal [of 377A]”, to discuss the next steps beyond 377A.

In other countries where LGBT ideology has taken precedence, this has led to a slippery slope of ever-advancing pro-LGBT laws that also narrows the rights of free speech and conscience for others.

In the United Kingdom, for example, the decriminalisation of homosexual acts under the Sexual Offences Act has led to ‘anti-discrimination’ laws used to silence dissent in 2007 (under the Equality Act (Sexual Orientation) Regulations), same-sex adoption (under the Adoption and Children Act) from 2002, and same-sex marriage (under the Marriage (Same Sex Couples) Act).

The results of social experimentation with a liberal sexual ethos are clear. If the results of LGBT ideology have led countries down the slippery slope, and into fractured societies, why should Singapore embark on this course of action?

So why now?

The fact is that given equilibrium has now been attained, we can’t find a compelling legal reason in the light of the latest court decision, to disrupt it, and to move on 377A.

There are, however, many reasons why we ought not to disrupt the status quo.