When Should the Government Move on 377A?

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How did we get to this point?

On 28 February 2022, Singapore’s apex court – the Court of Appeal – dismissed the latest round of legal challenges against Section 377A of the Penal Code, the law which criminalises acts of “gross indecency” between males. 

In its judgment, the court sought to uphold the “uniquely Singaporean resolution” and “political compromise” struck by the Singapore Government, where the law would be retained because of its “important symbolic weight” for the conservative mainstream, but it would not be “proactively enforced” so as to “accommodate our homosexual kith and kin”. The court emphasised that Parliament was the proper forum for the resolution of issues regarding Section 377A.

However, beyond a mere political promise validated, the court also ruled that Section 377A was “unenforceable in its entirety”, until and unless the Attorney-General clarifies his position on the enforcement of Section S377A. 

Various religious groups – Protestant, Catholic, Muslim and Sikh, affirmed the Government’s approach in managing these issues, committing to work with it. Pink Dot criticised the court’s judgment as a “devastating blow” to Singapore’s LGBTQ+ community, though it welcomed the Minister’s acknowledgement of “the rejection and hurt faced by the LGBTQ+ community”.

Speaking in Parliament three days after the decision, Law and Home Affairs Minister K. Shanmugam reiterated the Government’s policy on the law. Recognising the different views on the matter, he added that the Government is considering “the best way forward” on Section S377A.

Four months later at a press doorstop, the minister revealed that the government is dealing with two questions. First, what is to be done with Section S377A and second, how can it safeguard the current legal position on marriage from being challenged in the courts just like how Section S377A was.

Finally, on Tuesday, DPM Lawrence Wong, when pressed by Bloomberg’s Editor-in-Chief John Micklethwait, said that the issue around 377A “pertains to our social values and norms” and that “working out some common understanding… some way of having mutual accommodation and compromise without causing deep polarisaiton and divisions” was the government’s priority.

Given that the review process has begun in earnest, one would be immediately concerned with the big questions – why, when and how will this happen? What’s at stake should S377A be repealed, and what will come after?

When Should the Government Move on S377A?

In light of the government’s statements over the years and in light of the recent judgment from the Court of Appeal, it appears there are two main factors that would lead the government to move and take steps towards the repeal of Section S377A. 

Views of the Majority 

The first factor is when there is no longer a clear majority of Singaporeans who support Section 377A. 

When explaining the reason for retaining Section S377A in the Penal Code in 2007, the government said that Singapore is a largely conservative society, where “[the] majority find homosexual behaviour offensive and unacceptable.” Prime Minister Lee Hsien Loong added that “the vast majority of Singaporeans” wanted to keep “a heterosexual stable family” as the social norm.

Conversely, at the same sitting in 2007, Parliament also repealed the former Section 377 – which criminalised “carnal intercourse against the order of nature” – on the basis that “Singaporeans by and large do not find oral and anal sex between a consenting male and female in private offensive or unacceptable”.

These statements imply that the government is likely to follow the views of the majority of Singaporeans when deciding whether to keep or repeal Section S377A.

The IPSOS survey in 2018 on Same-Sex Relationships indicated that a majority 55% of Singaporeans supported the retention of S377A. In 2022, that support, according to IPSOS dipped to 44%. We critiqued the survey here. This, Minister Shanmugam described as “a little bit of an outlier in the context of other surveys, internal and public.” and that despite shifting attitudes, he was “not quite sure they are shifting as much as what Ipsos has said.”

However, even if we were to go with IPSOS’ “outlier” data of 44% in favour of 377A, 20% opposed to it and inferring a 36% middle ground position, that would still mean that those in favour of S377A more than double those opposed to it, and that retaining 377A still remains the plurality position in the country. What this implies, is that should the government move to repeal S377A now, it would be acting contrary to the will of the people.

Regardless, the writing is on the wall. Singapore’s youth are increasingly leaning liberal and though there are no official statistics out yet, it is likely that over the course of time, the retain position will lose its majority status and become relegated to a plurality position – that is, it will be the most favoured option between repeal, retain and unsure, though not necessarily capturing a simple majority.

The government may move on the law sooner than later, riding on the fact that S377A may soon no longer be a majority position.

Social Harmony

The second factor is when the Government is assured that the repeal of Section 377A will not negatively affect social harmony.

It is well-known that the Singapore Government has typically placed a strong emphasis on the importance of social cohesion. In his 2007 speech justifying the status quo on Section S377A, Prime Minister Lee called upon Singaporeans to “live and let live” rather than try to “force the issue”, as this may end up dividing and polarising society due to the strongly held and opposing views on the issue. Instead, the Prime Minister preferred “to let the situation evolve gradually.”

In recent years, the Government’s concern about “culture wars” caused by issues relating to sexual orientation or gender identity has only intensified. For example, in early 2021, then-Education Minister Lawrence Wong warned, “We should not import these culture wars into Singapore, or allow issues of gender identity to divide our society.”

The Government has cautioned against “tribalism” and stressed the importance of mutual dialogue. “All must feel that they are part of the Singapore conversation; all must feel they are part of the Singapore family; all must feel there is hope for the future,” said Mr Wong in another speech in late 2021

Bearing these concerns in mind, it is clear that if and when the Government moves, it will do so –to quote Mr Shanmugam – “in a way that continues to balance between these different viewpoints, and avoids causing a sudden, destabilising change in social norms and public expectations.” Well, it will try at least.

If the turnout and public resonance with the messages put forth in the Protect Singapore Townhall are anything to go by, it is clear that there is a significant silent majority that is deeply uncomfortable with LGBTQ+ ideology.

It is apparent that the government will have its work cut out for itself should the government decide to move on S377A, because there would be significant pushback-something that PM Lee forewarned of back in 2007.

“I should therefore say that as a matter of reality, that the more gay activists push this agenda, the stronger will be the push-back from conservative forces in our society, as we are beginning to see already in this debate and over the last few weeks and months.

And the result will be counter-productive because it’s going to lead to less space for the gay community in Singapore.”

Lee Hsien Loong, 2007 Parliamentary Speech on 377A

And rightly so, especially if any move on the law diminishes S377A’s protective utility over Singapore’s social norms surrounding marriage, family, and even heterosexuality itself. It remains every citizen’s privilege and duty to articulate their views on how society should be ordered to their MPs, government ministers, and at the polls.

Perhaps social peace will be elusive in a situation where both entrenched camps are diametrically opposed to one another. What then will happen? Is the government likely to withhold a move till peace can be secured? Unlikely.

Majority consensus being lost and the elusiveness of peace aside, we think there are several reasons why the government may choose to move on S377A sooner than later.

And we do mean… sooner.

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