Section 377A of the Penal Code of Singapore (officially repealed on 27 December 2022)[2] was the main piece of legislation which criminalised sex between mutually consenting males who were not below the legal age of consent (16 years in Singapore), even when it was done in private. In lay terms, it was known as the "gross indecency" law. This was the phrase commonly used by the press when routinely reporting on criminal cases charged under the statute.
- Consensual sex between males where one party is underaged is charged under commercial sex with a minor below 18, sex with a minor below 16 or statutory rape.)
- Non-consensual sex between males is charged under "assault or use of criminal force to a person with intent to outrage modesty" (Section 354 of the Penal Code[3]). Male on male rape is charged under Section 375 (1A) of the Penal Code[4]. Sexual assault involving penetration (eg. performing oral sex on another non-consenting male) is charged under Section 376 of the Penal Code. Victims are not charged. (See main article: Rape of males in Singapore).
"Gross indecency" was usually taken to mean all forms of non-penetrative sex (eg. mutual masturbation) between two males regardless of age. This stood in contrast with the former Section 377, known as the "unnatural sex law", which included only penetrative sex (mainly oral and anal) between two persons of any gender, meaning it did not discriminate between heterosexual and homosexual sex.
The Penal Code (Chapter 224): Chapter XVI: Offences affecting the human body: Sexual offences: Section 377A (Outrages on decency)[5] stated:
"Any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to 2 years."
Prime Minister Lee Hsien Loong announced during his National Day Rally speech on 21 August 2022 that his government would repeal the statute.
Origin[edit | edit source]
To understand the background of Section 377A, the enactment of its mother statute, the original Section 377 which criminalised sex "against the order of nature" and was popularly known as the "unnatural sex" law, must first be explained. It banned penetrative sex (oral and anal) between two people regardless of gender if the act did not immediately lead to penile-vaginal intercourse which was considered the only form of "natural" sex as it had the potential for procreation.
The former Penal Code (Chapter 224): Chapter XVI: Offences affecting the human body: Sexual offence: Section 377 (repealed in 2007) stated:
"Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animals, shall be punished with imprisonment for life, or with imprisonment for a term which may extend to 10 years, and shall also be liable to fine.
Explanation. Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this Section."
Ecclesiastical roots in Britain under Henry VIII[edit | edit source]
An exhaustive analysis of the origin of British laws which sought to prohibit buggery and their evolution into Section 377 is found in a seminal academic paper by Prof. Douglas Sanders (see archive of the paper: 377 and the unnatural afterlife of British colonialism).
Prosecution by the Catholic Church[edit | edit source]
Prior to the enactment of the first civil anti-buggery law in Britain in 1533, the offences of buggery or sodomy had been dealt with by the Catholic Church. In the Church's early medieval years, these acts were given no particular penance. They were viewed like all the other sins[6]. Despite the extreme gravity with which the Church viewed "unnatural" vice, remarkably little conciliar legislation up to the 12th century was devoted to homosexuality. Considerably more was said about adultery, incest and concubinage. The penalty for sodomy, in pre-12th century and later legislation, was largely penitential and not judicial. One can only speculate whether this meant that the accused had to recite fifty Hail Marys upon conviction with sodomy rather than being imprisoned or physically castigated. In any case, it was extremely rare that men were brought up to the ecclesiastical courts for homosexual behavior alone. From 1470 to 1516, only 1 out of 21,000 church trials was for sodomy, and the accused was simply excommunicated when he failed to appear. In medieval Church law, individuals were more commonly charged for publicly standing up against the Church for its norms which looked down upon homosexuality. If they refused to back down from their "heresy", they were severely punished. The usual punishment for convicted heretics was death by burning at the stake.
The Buggery Act[edit | edit source]
The Buggery Act 1533, formally An Acte for the punysshement of the vice of Buggerie, was an Act of the Parliament of England piloted by Henry VIII's chief minister, Thomas Cromwell.
The Act prescribed death as the punishment for buggery with man or beast. Some have suggested that bestiality was specifically included because of the fear of hybrid births!
The phrasing used in the Buggery Act, which included the word "abominable" (taken from the Book of Leviticus in the Bible), in addition to "buggery" (which, by the 13th century, had become associated with sodomy and was later defined by the courts to include only anal penetration and bestiality) and "vice", confirms its religious character.
The Buggery Act 1533 stated:
"Forasmuch as there is not yet sufficient and condign punishment appointed and limited by the due course of the Laws of this Realm for the detestable and abominable Vice of Buggery committed with mankind of beast: It may therefore please the King's Highness with the assent of the Lords Spiritual and the Commons of this present parliament assembled, that it may be enacted by the authority of the same, that the same offence be from henceforth ajudged Felony and that such an order and form of process therein to be used against the offenders as in cases of felony at the Common law. And that the offenders being herof convict by verdict confession or outlawry shall suffer such pains of death and losses and penalties of their good chattels debts lands tenements and hereditaments as felons do according to the Common Laws of this Realme. And that no person offending in any such offence shall be admitted to his Clergy, And that Justices of the Peace shall have power and authority within the limits of their commissions and Jurisdictions to hear and determine the said offence, as they do in the cases of other felonies. This Act to endure till the last day of the next Parliament."
This meant that a convicted sodomite’s possessions could be confiscated by the government, rather than going to their next of kin, and that even priests and monks could be executed for the offence since it was a law enacted "without benefit of clergy". This was ironic, in view of the fact that priests and monks could not be executed even for murder. Henry VIII later used the law to exterminate monks and nuns (thanks to information his spies had gathered) and appropriate their monastery lands. The same tactics had been used 200 years before by Philip IV of France against the Knights Templar.
The Buggery Act was formulated in the context of Henry VIII's engineered break from papal authority to establish the Anglican church via the English Reformation. It bolstered Henry's position against the Catholic Church's courts. More practically, it aimed to justify the seizure of the Catholic monasteries and the confiscation of their other rich properties. The pretext was the alleged sexual immorality of those in the religious vocation. Without this anti-Catholic agenda, it seems unlikely that the Act would have been enacted. The use of the sodomy law, more than just going after people who engaged in homosexual intercourse, was thus also part of religious persecution.
In July 1540, contravention of the Act, along with treason, resulted in the first conviction. Walter Hungerford, 1st Baron Hungerford of Heytesbury, became the first person executed under the statute, although it was probably the treason that cost him his life. Being a nobleman, he was beheaded at Tower Hill, an elevated spot northwest of the Tower of London (commoners were hung at another public execution site, Tyburn). Ironically, Thomas Cromwell, the man who introduced the Buggery Act to parliament, was also beheaded there the very same day, on 28 July 1540, after he fell out of favour with Henry VIII. Nicholas Udall, a cleric, playwright and headmaster of Eton College, was the first to be charged for violation of the Act alone in 1541. In his case, the sentence was commuted to imprisonment and he was released in less than a year.
When the staunchly Catholic Mary I of England, Henry VIII's elder daughter, ascended the throne in 1553 and aggressively returned England to Catholicism, in spite of all the executions she ordered which earned her the nickname of Bloody Mary, she surprisingly struck down her father's sodomy law. Evidently, she did not do this because of prevailing Catholic policy during the time since other Catholic states still criminalised sodomy but she preferred such legal matters to be adjudicated in ecclesiastical courts. After Mary's death in 1558 during an influenza epidemic, her half-sister Queen Elizabeth I reinstated Henry VIII's Buggery Act in 1563.
Offences against the Person Act & Criminal Law (India) Act[edit | edit source]
The Buggery Act remained in force until its repeal in 1828. It was replaced by Section 15 of the Offences against the Person Act 1828, and Section 63 of the Criminal Law (India) Act 1828, which provided that buggery would continue to be a capital offence.
Buggery remained a capital offence in England and Wales until the enactment of the Offences against the Person Act 1861. The last execution for the crime took place in 1836.
Codification of law, particularly criminal law, became a major reform project in Britain in the 19th century, pushed by Jeremy Bentham and the utilitarians. Codes were well suited to British colonialism, providing a single, orderly written version of areas of law. This made them easy to enact in a colony.
Indian Penal Code[edit | edit source]
In the early years of British colonialism in the East, the British government enacted several Indian Charter Acts which gave the East India Company exclusive rights of trade and commerce in India and subsequently, also the right to rule its largest colony. Amongst these was the Charter Act of 1833 which introduced legislative centralisation in India and extended the tenure of the commercial grant of the company for another 20 years. The Charter Act of 1833 required the appointment of a Law Commission to consolidate, codify and improve the “splintered (legal) systems prevailing in the Indian Subcontinent”. Lord Thomas Macaulay was appointed president of that commission in 1835. He drafted the Indian Penal Code with the help of many experienced lawyers to replace Hindu criminal law. The latter was based on the Manusmriti, generally known in English as the Laws of Manu or "Dharmic discourse to Vedic rishis" on the "way of living" for various classes of society, and which had hitherto held sway in the greater part of India.
Macaulay’s first draft of the Penal Code contained a Clause 361, which prescribed a severe punishment for touching another with the purpose of satisfying unnatural lust. Macaulay abhorred the idea of any discussion or debate on this "heinous crime" and in the Introductory Report to the proposed draft Bill dated 1837 stated:
"Clause 361 and 362 relate to an odious class of offences respecting which it is desirable that as little as possible should be said...[we] are unwilling to insert, either in the text or in the notes, anything which could give rise to public discussion on this revolting subject; as we are decidedly of opinion that the injury which would be done to the morals of the community by such discussion would far more than compensate for any benefits which might be derived from legislative measures framed with the greatest precision."
The lack of any debate, suggesting the creation of this definition purely at the discretion of Macaulay, also explains the sheer vagueness and ineffectiveness of the language of the proposed anti-sodomy section. The concept of an "unnatural touch" was too woolly to be an efficacious penal statute, and the final version proved to be a substantial improvement on the initial draft. Macaulay's final copy included a Section 377, a statute based on English criminal law which sought to prohibit "buggery" or sodomy, largely taken to mean anal sex between men. The Indian Penal Code was finally incorporated by the British colonial administration in the late 1850s.
Under Hindu law, consensual sex between adult males was never an offence. The classic Indian text, Kama Sutra, dealt without ambiguity or hypocrisy with all aspects of sexual life including marriage, adultery, prostitution, group sex, sadomasochism, male and female homosexuality, and transvestism. In the new Indian Penal Code, however, Section 377 criminalised "carnal intercourse against the order of nature". The latter phrase was a new legal concoction, not previously found in British law. It was derived from words attributed to, amongst others, Thomas Aquinas and Sir William Blackstone. A fine and/or up to 10 years' imprisonment were specified for these activities. It is ironic that Lord Macaulay never lived to see his infamous unnatural sex law, which was to wreak so much misery on the lives of homosexual men throughout Britain's colonies for well over a century, come into force in India. Also, despite his apparent revulsion for homosexuality, Macaulay himself never married and his closest companion was his sister Hannah.[7] (For a detailed history of Macaulay's enactment of India's Section 377, see archive of the academic paper, "Section 377 and the dignity of Indian homosexuals" by Alok Gupta).
Colonial diffusion[edit | edit source]
Section 377 became effective as part of the British-imposed Indian Penal Code from 1 January 1862, and was adopted by the colonial masters, also as "Section 377" into the Straits Settlements Penal Code in 1871. The cloned and transplanted law came into operation in the Straits Settlements of Singapore, Penang and Malacca on 16 September 1872.
Similarly worded legislation, also under the same numbered section of each country's penal code, that is, "377", as if it were a trademark, was introduced by the British into their other Asian colonies such as India, Pakistan, Hong Kong, Malaya (now Malaysia), Brunei and Burma (now Myanmar) in the late 19th century.
Sri Lanka, the Seychelles and Papua New Guinea have the key wording from India's Section 377, but different article numbers. Parallel wording appears in the criminal laws of many former British colonies in Africa.[8]
Section 377A (Outrages on decency) was added to the sub-title "Unnatural offences" in the Straits Settlements Penal Code in 1938. Both Sections were absorbed unchanged into the Singapore Penal Code when the latter was passed by Singapore's Legislative Council on 28 January 1955.
Scope[edit | edit source]
The original Section 377 (repealed in October 2007)[edit | edit source]
Unnatural sex or sodomy was not defined in the Indian Penal Code drafted by the British. Legal records show that Indian legislators in the 19th and early 20th centuries interpreted "carnal intercourse against the order of nature" between individuals (of all sexes - the law being non-gender specific with its use of the word "whoever") to include anal sex, bestiality and, often after much courtroom deliberation, oral sex as well; namely, any form of sexual intercourse which did not have the potential for procreation.
Therefore, both heterosexual and homosexual oral and anal sex were criminal offences under the same law. In this respect, Section 377 did not discriminate against homosexuals. The latest eminent example of this was demonstrated on Tuesday, 27 August 2019 when an ex-primary school vice-principal was charged and found guilty under the former Section 377 because the offences were committed before the statute was repealed in 2007. The vice-principal had sexually groomed a student for years from when he was 14, eventually taking him into his own home, and performing occasional oral sex on him[9].
However, early cases tried under Section 377 in India mainly involved forced fellatio with unwilling male children, and one unusual case in 1934, Khandu vs. Emperor, of sexual intercourse with the nostril of a water buffalo (see Khandu vs Emperor, AIR, Lahore, 1934,[10],[11]).
Theoretically, even lesbian sex which involved penetration, eg. of a finger, tongue or sex toy into the vagina or anus, would be covered under the law, although there are no records of any judge in India or Britain's numerous other colonies interpreting the law to include sex between women.
In the Singaporean context, recent cases had established that heterosexual fellatio was exempted if indulged in as foreplay which eventually led to coitus. The Singaporean margin note of the original Section 377 further explained that mere penetration of the penis into the anus or mouth even without orgasm would constitute the offence. The law applied regardless of the act being consensual between both parties and done in private.
Owing to overwhelming public support after the 2003 Annis Abdullah case in which a policeman was convicted under Section 377 and sentenced to 2 years' jail for having consensual oral sex with a 16-year-old girl, and the realisation by the politico-legal system that the statute was no longer relevant to contemporary society, Section 377 was repealed in October 2007 during the extensive review of the Singapore Penal Code. A new Section 377, which criminalised sex with dead bodies ("Sexual penetration of a corpse")[12], was substituted in its place.
Enactment of Section 377A[edit | edit source]
In 1937, René Onraet, the then Inspector-General of the Straits Settlements Police Force, submitted his annual report to Singapore's colonial government on the state of crime on the island, noting that with regard to vice, "male prostitution" was widespread. Historical correspondence provides evidence that the document caused the government to institute "a policy…to stamp out this evil" and was a prelude to making such acts between men a criminal offence so that male prostitution could be policed[13],[14]. However, it must be stressed that "male prostitution" was not solely targeted but all forms of sex work and pimping which the authorities regarded as "social evils".
One year after Inspector-General Onraet's report, Section 377A was introduced without fanfare in June 1938 by the Legislative Council into the Straits Settlements Penal Code to criminalise all non-penetrative sexual acts between men, eg. mutual masturbation and frottage. Onraet's follow-up progress dossier entitled, "Annual report on the organisation and administration of the Straits Settlements police and on the state of crime for the year 1938" (page 414, paragraph 48), published in 1939, announced that "male prostitution and other forms of beastliness were stamped out as and when opportunity occurred." The news was also carried in a Straits Times article dated 21 July 1939, on page 14[15]. Examining historical correspondence of the colonial government, it is apparent that 377A was enacted to enable male prostitution to be surveilled and also perhaps to protect European expatriates and visitors from the vice. It was not meant to prosecute adult males who indulged in consensual sex in private. This inference is in line with the fact that one of the first reported offences under Section 377A involved a British captain, Douglas Marr, who was charged for but acquitted of illegal homosexual acts with a Singaporean Malay male youth, Sudin bin Daud, at the captain's home in 1941[16],[17],[18] (also see below).
Between 2014 and 2016, further relevant documents from the United Kingdom’s National Archives were declassified which provided additional evidence that Section 377A was meant to target commercial sex rather than to criminalise consensual gay sex between men. A 1940 report which was declassified in 2016 showed that the enactment of Section 377A was in response to an “outbreak” of male prostitution in Malaya at the beginning of 1938. The report was addressed to George Gater, who held the title of Permanent Under-Secretary of State for the Colonies and made it apparent that there was a relationship between the two events. The report detailed two cases in 1938, the year the law was enacted. The first, which took place three months before Section 377A came into effect, involved a colonial official named Reeves who was suspected of having relations with male prostitutes but was not charged initially as there was no proof. The second case involved another official, Rivaz, who was sacked as the charges, similar to those made against Reeves, were justified following the enactment of Section 377A.
Another incident, described in a document dated 24 March 1938 which was declassified in 2014, was that in which a European warder of the Straits Settlements Prisons, Moses, resigned after being caught in January 1938 attempting to sodomise two male prostitutes. In a Japanese hotel along Prinsep Street, Moses was caught naked, sprawled in the middle of the bed with an Asian boy sitting on Moses’s stomach, his back towards Moses’s face. Another boy lay beside Moses, stroking his face. The police officers who caught Moses red-handed stood frozen at the door, mouths agape. After his arrest, Moses argued that no act of “carnal intercourse against the order of nature” (as stated in Section 377) had happened. They were just three men enjoying each other’s company, albeit sans clothing. Moses' defence was that his penis was not erect[dotcom/file/d/1QLqxvPSXQ08B5kwq0AU3VhTNdzkWxDti/view]. This document was a communication from Sir Thomas Shenton, governor and high commissioner of the Straits Settlements, to the Secretary of State for the Colonies[19].
The highest ranking colonial official to resign after the discovery of homosexual relations with locals in 1938 was H. Gerhold, the Assistant Commissioner of the Federated States Police Force. Not only did Gerhold make it a habit to seek the company of young Malays, including members of the force, he also admitted in a Statement of Fact addressed to the Governor of the Federated Malay States that he had “experimented” many times with several Asian men. Among them were a Javanese known as Jusari, and also Hassan a frequent visitor to his bungalow. Protesting his innocence, Gerhold, in a letter dated 6 March 1938 and addressed to the High Commissioner of the Federated Malay States, wrote that “in this country … this vice is peculiarly prevalent amongst both Europeans and Asiatics”. Moreover, “it is not regarded with the same disapproval accorded to it in western countries” because “the Asiatic... regards this vice as no less natural than womanizing and conveying no greater stigma”[dotcom/file/d/14VT5b2aVZXezcPgilTL0_d3Pl0kksDGz/view].
As members of the European community, both Gerhold and Moses were privileged recipients of the colonial government’s forbearance. Not only was Gerhold not fired from service, he was sent to Palestine to further his political career, “in spite of his lapses in Malaya”. Additionally, the colonial government was firmly instructed not to inform the Palestinian authorities about Gerhold’s Malayan “past”. Moses, on the other hand, opted for a quiet resignation, leaving Singapore for Brisbane on 18 March 1938. There was evidently a problem within the civil service of civil servants patronising male prostitutes.
These unsatisfactory scenarios made Shenton realise that new procedures had to be adopted when dealing with future cases of this nature. Mulling over the matter of Moses, Shenton had an epiphany - he could simply borrow the wording of the Labouchere Amendment (see below), a law criminalising homosexual activity, that was passed in England and Wales in 1885. Instead of stipulating “carnal intercourse”, the Labouchere Amendment outlawed “any act of gross indecency” between two male persons. The fact that Section 377A would be enacted a whole 53 years after the Amendment was of no concern to Shenton. Unlike the Labouchere Amendment which was indeed a barometer of public morality, Section 377A would be used more as a tool to rid the colonial government and society of European men who disgraced their own kind by consorting with native male prostitutes. Therefore, Shenton assured himself, the gap between the enactment of the Labouchere Amendment and Section 377A in the Straits Settlements would not invite any accusations of the colonial government having lax public moral standards.
Shenton was not a heartless man, however. Or, to be more accurate, he was not heartless towards the image of the British colonial service and the reputation of his race. Thoughtful as he was, Shenton first muzzled the media so that not one detail of the scandals leaked out to the public. Second, he decreed that any European found guilty under the new law, which in any case would not apply retroactively, would be given the option of resigning and leaving Malaya. Crucially, the option must be given before criminal proceedings are instituted, Shenton was careful to stress in a memo entitled “The Malayan ‘sexual pervasion’ cases” that he wrote after 377A was enacted. This was an important point. In some cases, prosecution may be undesirable and not in the public interest. One shuddered to think, for example, of the furor that would erupt in the colonies should the masses find out about the curious case of a bishop’s son, or of two missionaries.[dotcom/file/d/14VT5b2aVZXezcPgilTL0_d3Pl0kksDGz/view] Shenton proposed that he should have the power to order an enquiry under Colonial Regulations in lieu of prosecution. In other words, no white man should be prosecuted under Section 377A without his explicit consent. The respectability of the European race, and the legitimacy of its governance, were paramount. All other issues involved were simply collateral damage.
"Male prostitution" during that era more often referred to sex work by male-to-female cross-dressers or transvestites, a phenomenon which was rampant. Prostitution by non cross-dressing, outwardly male sex workers, known contemporarily as "rent boys" and, more recently, as "money boys" after the recent mainland Chinese influx, was much rarer.
One possible reason why the British sought to enact Section 377A, even though they already had and could use the non-gender specific Section 377 to charge transwoman prostitutes and their clients was that the police must have found it difficult to use Section 377 to prosecute cross-dressers, who were legally men, for having sex with their male clients if prima facie evidence of anal or oral sex could not be produced. In these cases, a new law such as Section 377A which was vague enough to convict any form of non-penetrative sexual activity between men, or a cross-dressing man and his outwardly male partner, could be used as a backup. The fact that two "men" were seen fondling each other or perhaps merely found naked together in a brothel room would be sufficient for a charge to be made against them. This was exactly how the Labouchere Amendment from which Section 377A is derived was used in the UK from the late 19th century onwards.
It is highly unlikely that in the 1930s, Section 377A was introduced to curb consensual sex in private between men who were both outwardly male in appearance as these activities had a much lower profile, were largely invisible to the public eye and were non-commercial in nature. However, in future decades, especially beginning in the latter half of the 1980s after the arrival of HIV/AIDS in Singapore, the existence of the law enabled the police to harass homosexuals who cruised in public places and to charge them if they had sex. The law has since been used mainly for this purpose, even though it was not the initial intention of the British colonial legislators.
Early prosecutions[edit | edit source]
Between 1938 and 1941, seven high-profile cases of prosecution under or related to Section 377A happened. Although four cases involved Europeans, only one was convicted.
In September 1938, Lim Eng Kooi and Lim Eng Kok became the first to receive punishment in the Straits Settlements. The two "well-known" Penang Chinese were sentenced to seven months imprisonment each under Section 377A[20].
In March 1941, a Tan Ah Yiow was sentenced to nine months imprisonment after he was found with a "European client" in a "low down quarter", where he was discovered by F. J. C. Wilson, head of the local Anti-Vice Branch, following a tip. Wilson added that in court that a "disgusting and revolting practice had been performed", with medical evidence forthcoming[21].
In April 1941, Lee Hock Chee was prosecuted under Section 377A after a lascar saw him molesting a sleeping Chinese boy at a five-foot passageway off Rochore Road[22].
In April 1941, Captain Douglas Marr, the Deputy Assistant Provost Marshal of the Singapore Fortress Command, was accused of having committed "an act of gross indecency" with a male Malay youth, Sudin bin Daud, who denied being a "catamite". Sudin claimed that on March 13 or 14, he was walking along Stamford Road, a supposed "area for male prostitutes", at night when a car driven by Marr stopped, picked him up and brought him to his boarding house in Tanglin Hill. The offence against Section 377A allegedly took place there, he claimed, whereupon Marr gave Sudin some money and let Sudin take a watch before Sudin left, leaving his shirt there. In his defence, Marr claimed that he had wanted to get "at the root of the homosexual type of vice and I thought, as it transpires very foolishly, that it would be a good idea to question a catamite and to try and find out to what extent soldiers in different regiments were involved". Marr did not deny picking up Sudin, who he claimed approached him, but maintained that he merely questioned him back home to no avail, as he had mistaken Sudin for an Indian and spoken to him in Hindustani. On 16 April and 29 July, after a withdrawn appeal by the prosecution, Marr was acquitted of the charge, despite the fact that Sudin's shirt was found in his room[23],[24],[25],[26],[27]. Sudin, who had pleaded guilty to the act of gross indecency and theft of the watch, was sentenced to eighteen months imprisonment on 27 March[28].
In May 1941, Gunner Ernest Allen of the Royal Artillery became the only European convicted under Section 377A after witness Chan Yau testified that in March, he and Allen had committed the alleged offense in an Anguilla Road house. Allen denied the allegations, claiming that he had hired Chan to get him a girl. Allen was sentenced to 15 months imprisonment[29],[30].
In July 1941, a case involving a British man, identified by the press only as "Mr. X", who admitted "he had been addicted to homosexual practices" and two Chinese locals, Tan Ah Lek and Lim John Chye, who extorted and attempted to extort money from him by threatening to expose him, went to court. The European, who "held a responsible position in a Singapore firm", first came into contact with Lim in January 1939, when Lim wrote a letter to him asking for $5 to keep silent. By 1940, "Mr. X" had paid him over $1,000, while the English-speaking Tan had extorted and tried to extort a total of thousands of dollars from Griffith-Jones from the end of 1938, even extracting monthly payments from him. On 30 July, he was sentenced to five years' imprisonment. The prosecutor in a number of the cases that arose out of the blackmail scandal was a Mr. Griffith-Jones. [31],[32],[33].
Labouchere Amendment[edit | edit source]
The term "gross indecency" used in Section 377A was based on the wording of the Labouchere Amendment, also known as Section 11 of the Criminal Law Amendment Act 1885 of the UK. It was not a euphemism for buggery or sodomy, which was already a crime but rather, any other sexual activity between men.
Wording[edit | edit source]
It was worded thus:
"Any male person who, in public or private, commits, or is a party to the commission of, or procures, or attempts to procure the commission by any male person of, any act of gross indecency shall be guilty of a misdemeanour, and being convicted shall be liable at the discretion of the Court to be imprisoned for any term not exceeding two years, with or without hard labour."
The almost identical phrasing between the Labouchere Amendment and Section 377A is the best evidence that the latter was derived from the former.
Reason for enactment[edit | edit source]
In the 1880s, Britain was in the grip of a moral panic about the extent of prostitution. At the time, it was legal to have sex with teenage girls as young as 13 years of age, while a thriving trade buying and selling girls for prostitution alarmed many middle-class citizens. The Criminal Law Amendment Bill was thus drafted in 1881 to combat this. However, it languished for four years until a new scandal in July 1885 - a newspaper undertaking investigative journalism managed to buy a girl - roused parliament into renewed action.
On 6 August 1885, a member of parliament, Henry Labouchère, proposed a last-minute amendment to the bill making “gross indecency” between males an offence. There was hardly any debate although one member of parliament, Charles Warton, questioned whether Labouchère's amendment had anything to do with the original intent of the bill, namely, the prohibition of sexual assault against young women, and prostitution. Speaker Arthur Peel responded that under procedural rules any amendment was permitted as long as Parliament permitted it.
Without a record of a debate, it is difficult to know what the UK Parliament’s intention was with respect to the “gross indecency” clause. But if one considers that the Amendment Bill as a whole was designed to address prostitution and human trafficking, and if one realises that not only was female prostitution rife, but so was male prostitution, one can more or less guess why. The main part of the Criminal Law Amendment Act was gender-specific about girls as victims. Without the Labouchere Amendment, it would not have addressed male prostitution at all.
Punishment[edit | edit source]
The former Attorney-General, Sir Henry James, while supporting the amendment, objected to the leniency of the sentence, and wanted to increase the penalty to two years' hard labour. Labouchère agreed, and the proposed amendment was tacked onto the full Criminal Law Amendment Bill. The latter was rushed through and passed as the Criminal Law Amendment Act in the early hours of 7 August 1885.
Vagueness[edit | edit source]
As a result of the vagueness of the term "gross indecency," this law allowed juries, judges and lawyers to prosecute virtually any male homosexual behaviour where actual sodomy could not be proven. The sentence was relatively light compared to sodomy, which remained a separate crime.
Prosecutions[edit | edit source]
Lawyers dubbed the Labouchere Amendment or Section 11 of the Criminal Law Amendment Act 1885, the "Blackmailer's Charter". It was ceremoniously invoked for the first time to convict the celebrated author Oscar Wilde ten years later, in 1895. Wilde was given the most severe sentence possible under the act, which the judge described as "totally inadequate for a case such as this."
The brilliant mathematician, logician and cryptanalyst Alan Turing was convicted under the same law in 1952. In September 2009, UK Prime Minister Gordon Brown issued a postmortem formal apology to Turing for his “appalling” and “utterly unfair” treatment just because of his homosexuality. Turing's work led to the breaking of World War II Germany’s Enigma codes as well as developing theories which would ultimately result in the development of the modern computer. Despite his genius and contributions, he was charged for a felony and lost his security clearance and his job. He was sentenced to chemical castration with female hormones in lieu of a prison sentence. Two years later, he committed suicide by poisoning himself with cyanide[34].
Repeal[edit | edit source]
The law was repealed in part by the Sexual Offences Act 1967 when homosexual acts were decriminalised in England and Wales, with remaining provisions being deleted later.
Singapore's Section 377A[edit | edit source]
Singapore's Section 377A was descended from the Labouchere Amendment[35]. There is no compelling evidence to support the legend that lesbians were not included in similar legislation all across the Commonwealth because Queen Victoria refused to believe that they were capable of such behaviour.
In the local context, "gross indecency" was a broad term which, from a review of past cases locally, had been applied to mutual masturbation, genital contact, or even lewd behaviour without direct physical contact. As with the former Section 377, performing such acts in private did not constitute a defence. There had never existed any law in Singapore equally specific to non-penetrative lesbian sex. Although Section 377A had been in the statute books since the 1930s and was retained even after the Penal Code review of October 2007, it was only sporadically enforced. At the conclusion of the debate on the Parliamentary petition to repeal Section 377A in 2007, Prime Minister Lee Hsien Loong promised that his government would not "proactively enforce" the statute.
However, its presence was used to justify much of the discrimination faced by gay men in Singapore. Some examples were the prohibition by the Ministries of Education and Defence of teachers and higher-ranking military personnel from coming out, and curtailment of employment opportunities and promotion in these sectors. It also influenced censorship guidelines by the Media Development Authority which prevents positive portrayals of LGBT people in films and the broadcast media and public advertisements targeting the LGBT community (see main article: Singapore gay censorship).
After the erstwhile Section 377 was replaced by the current law criminalising sex with corpses, it became a standing joke in the LGBT community that in the Penal Code, gay sex (377A) had become sandwiched between sex with dead bodies (the new Section 377) and sex with animals (Section 377B, "Sexual penetration with a living animal").[36]
Lee Kuan Yew's statement about not prosecuting consensual gay sex, 2000[edit | edit source]
On 24 October 2000, Senior Minister Lee Kuan Yew was interviewed by female news anchor Terry Gross of the US' National Public Radio:
Gross: ...I want to just get back to something we were talking about earlier, which is certain things that are illegal in Singapore. What are the laws against homosexuality in Singapore?
Lee: Well, we are with British 19th century's law on homosexuality which is on the statute book. But we have not prosecuted anybody for homosexuality for the last 40, 50 years. What is on the statute book, and if you molest somebody and try and make him a homosexual, particularly if he's a minor, then the law will be enforced. It's a question of judgement. Once we conclude that homosexuality is also a DNA problem, then you've got to approach the punishment in a different way. And if you have consenting adults, well, God bless both of them. But let's...
Gross: God bless both of them only if you find DNA evidence, or...
LKY: No, no. Only if they do not inveigle and draw in innocent, young boys who are not with that inclination.
Contradictory events on the ground[edit | edit source]
In refutation of Lee's pronouncements about not prosecuting consenting adults for homosexual sex, on 23 July 2001, two undercover policemen infiltrated gay sauna Club One-Seven and arrested two men for having consensual oral sex in a locked cubicle (see main article: Police raids at Club One-Seven). They were originally charged under Section 377A which carried a maximum punishment of 2 years in prison.
Only after their defence counsels fought against this, perhaps by pointing out Lee's statements, was the charge amended to one under Section 20 of the Miscellaneous Offences (Public Order and Nuisance) Act for which the maximum punishment was much less severe - a fine not exceeding $1,000 or a jail term not exceeding one month for an initial offence. The 2 men were eventually fined $600 each. This was probably a landmark ruling which set an important legal precedent.
This case eminently demonstrated that verbal assurances from the Government were no guarantee that the police and the courts would not continue to use Section 377A and that it was perfectly legal for them to do so since the law still remained on the statute books. It was only when the accused's lawyers reminded the judges of politicians' oral statements that the charge was amended to a lesser one. Should the defence lawyers themselves have been unaware that such a promise was made and if no publicity was given to the case, the defendants may very well have been charged under the archaic law.
Annis Abdullah case[edit | edit source]
- Main article: Annis Abdullah case
The movement to repeal Singapore's original Section 377 was galvanised by the Annis Abdullah case. In November 2003, police constable Annis Abdullah was found guilty of oral sex with a 16-year-old girl and sentenced to 2 years' jail. Although it was consensual, he was charged under the former Section 377[37]. Many letters were written to the press, shocked that in this day and age, consensual oral sex was still a criminal offence.
In response to the public outcry, the Ministry of Home Affairs said that they were reviewing this aspect of the law. In January 2004, the Minister of State for Home Affairs, Ho Peng Kee reiterated in Parliament that the decriminalisation of oral sex was under review, but only for heterosexuals.
Penal Code review[edit | edit source]
In 2006, the Ministry of Home Affairs announced that it would be carrying out an extensive review of the entire Singapore Penal Code, the first in 22 years. The exercise took over a year and gathered extensive feedback from the public via the press, the Internet and live forums.
Repeal or retain Section 377A?[edit | edit source]
The most heated debate concerning the major review of the Singapore Penal Code was not over which laws were to be repealed or amended, but over the statute which would be retained, i.e., Section 377A, the anti-gay law.
185 convictions under 377A from 1997 to 2006[edit | edit source]
In May 2007, Nominated MP Siew Kum Hong queried the Minister for Home Affairs in Parliament about the number of men prosecuted and convicted under Section 377A over the past decade:
Siew Kum Hong: To ask the Deputy Prime Minister and Minister for Home Affairs, in each of the last ten years, (a) how many prosecutions and convictions have there been under section 377A of the Penal Code; (b) how many of these prosecutions were police prosecutions; and (c) how many of these police prosecutions were the result of proactive police enforcement.
Wong Kan Seng: The statistics on the number of persons convicted under section 377A (Outrages on decency) of the Penal Code, between 1997 and 2006 is shown below. Prosecution statistics are not available. Police does not proactively enforce the provision.
| 1997 | 1998 | 1999 | 2000 | 2001 | 2002 | 2003 | 2004 | 2005 | 2006 |
|---|---|---|---|---|---|---|---|---|---|
| 25 | 16 | 31 | 30 | 23 | 25 | 11 | 13 | 4 | 7 |
Arguments raised[edit | edit source]
Advocates of the repeal often cited reasons of civil liberty, human rights, and increasing scientific evidence that homosexuality was inborn[38] and found in nature[39].
Britain, the former British colony of Hong Kong, and Australia have since repealed laws prohibiting sex between men in 1967, 1991 and 1997 (in the state of Tasmania, the last Australian state to do so) respectively. India effectively repealed her Section 377, by having it "read down" initially in 2009 (see video) and finally in 2018. Fiji was the first Pacific island nation to repeal her version of Section 377 in 2010[40],[41]. Elsewhere in East and Southeast Asia, apart from Singapore, only Myanmar, Malaysia and Brunei, all former British colonies, and recently Indonesia's Aceh province (applicable only to Muslims), continue to criminalise sex between men.[42]
Opponents of the repeal based their arguments on the conviction that to decriminalise homosexuality would result in a breakdown of the family unit, compromise Singapore's position on procreation, and lead to future undesirable scenarios such as the approval of bestiality and paedophilia.
They also emphasised the wishes of the putative conservative majority to retain 377A. This was despite there being no formal survey or census done specifically on the topic. In various Singaporean online forums, such as Reach, and the AsiaOne Forum, strong opinions such as homosexuality being a genetic disease, the existence of a militant gay agenda originating from the West, homosexuality being a product of Western decadence incompatible with Singapore, were repeatedly posted. Conversion treatments, such as those by NARTH, were also recommended.
Forums organised[edit | edit source]
In the lead-up to the overhaul of the Penal Code, forums were organised to discuss the issue of homosexuality in Singapore and the repeal of Section 377A.
A seminar entitled, "Christian Perspectives on Homosexuality and Pastoral Care" was organised by Safehaven, a ministry of the Free Community Church. It was held at the Amara Hotel on 10 May 2007.
During the dialogue, Dr Tan Kim Huat, who was the Chen Su Lan Professor of New Testament and Dean of Studies at Trinity Theological College said, "Singapore is a pluralistic society...There must be spaces for it", referring to homosexuals in society. This was the reason he gave for supporting the repeal of Section 377A (see video:[43];[44]).
Another forum to discuss the repeal of Section 377A was organised on Sunday, 15 Jul 07 by theatre company W!ld Rice in conjunction with Happy Endings: Asian Boys Vol 3, a gay play that was then being staged. The forum, held at the National Library, attracted some 250 people.
For the first time in the history of forums on gay issues in Singapore, a member of parliament from the ruling People's Action Party, Baey Yam Keng, and a Nominated Member of Parliament, Siew Kum Hong, were part of the 5-member panel convened to debate the issue.
Baey publicly voiced his support for the law to be repealed, saying, "Personally, I think that the whip should be lifted for a very open debate and open expression of opinion by the MPs. And if that is so, I would vote for a repeal of the act."[45]
The Ministry of Home Affairs (MHA) was quoted in The Straits Times of 18 September 2007 saying that public feedback on the issue had been "emotional, divided and strongly expressed", with a majority of people calling for Section 377A to be retained.[46] The MHA also said that it recognised that "we are generally a conservative society and that we should let the situation evolve".
Video appeals and online campaigns[edit | edit source]
The prospect for the repeal of both Sections 377 and 377A in Singapore captured the attention of gay activists worldwide. In August 2007, on a visit to Singapore, award-winning movie star and thespian Sir Ian McKellen made an appeal to the authorities to get rid of this remnant of British colonial law, just as his country of origin had done (see videos:[47],[dotbe/9VE6ENgkR7M],[dotbe/9VE6ENgkR7M])
On 3 October 2007, another online appeal was launched via the website Repeal377A.com to gather signatories for an open letter to the Prime Minister calling for the repeal of Section 377A. In response, a counter-petition on the website Keep377A.com was set up by entrepreneur Martin Tan to give citizens a channel to voice support for the Government's retention of the law. By 1:30 p.m. on 20 October, Keep377A had overtaken Repeal377A by 7,068 to 7,058 signatories in just two days of its launch.[48] (The content of the Keep377A.com website was removed in 2009, although its web address remains. This may be evidence that the resolve of the Keep377A camp was weaker than that of the proponents of repeal, despite claims of the former to have garnered more support in the form of signatures.)
On 12 October 2007, in an initiative headed by impresario Alan Seah, leading members of Singapore's arts fraternity, both gay and straight, took part on a promotional rap video titled Repeal 377A Singapore!. It was produced and directed by Edgar Tang and theatre celebrity Pam Oei[49]:
Concerned with what was perceived as the video's narrow presentation of issues, a "Families Petition"[50] was launched by an independent focus group FamilyOverFreedom to run until 9 August 2015 as an awareness campaign aimed at educating the middle ground of undecided voters on the potential long-term impact of a repeal on the institution of the family.
Open letter to the Prime Minister[edit | edit source]
- Main article: Open Letter to the Prime Minister to repeal Section 377A
On Friday, 5 October 2007, an Open Letter urging the abolition of Section 377A was organised online [51].
The 400-page letter which was supported by 8120 signatories was hand-delivered to the Prime Minister's Office at The Istana on Monday, 8 October 2007 at 2:30pm by co-organiser Alan Seah, theatre director and actor Ivan Heng and actress Pam Oei.
Credibility of Keep377A.com and Repeal377A.com[edit | edit source]
As online petitions, both websites suffered the same doubts regarding the credibility of the numbers of their signatories. There was no mention of whether technical measures were taken to ensure that multiple-voting by the same person was prevented.
In addition, the opening page of Keep377A.com was amended to include the following conclusion:
"Take time to hear from friends who are gay so that we too can understand their point of views personally. In our democracy, we can learn to agree to disagree, peacefully and respectfully."
The statement was incongruous with forum postings in other parts of the site which repeatedly used derogatory terms and called for Section 377A to be actively enforced.
Research cited by Keep377A.com[edit | edit source]
One of the references cited within Keep377A.com was a 2005 research article titled "Singaporeans’ Attitudes toward Lesbians and Gay Men and their Tolerance of Media Portrayals of Homosexuality",[52] written by Benjamin H. Detenber and Mark Cenite of the Wee Kim Wee School of Communication and Information, Nanyang Technological University. The article reported findings on the attitudes of Singaporeans towards homosexuals, with an emphasis on the comfort of viewing homosexual acts in the mass media. The conclusion highlighted a significant level of negativity. It was not, however, mentioned in the article whether this negativity translated into a specific desire to criminalise homosexual acts. The objectives of the research also did not involve gauging attitudes relating to legislation. A follow-up study by Detenber in 2010 revealed a softening of attitudes towards homosexuality:[53].
Copycat sites[edit | edit source]
Towards the end of October 2007, at least one copycat site emerged - Support377A.com. Created in virtually the same format as its predecessors, it nevertheless only featured letters to forums against the repeal, and supposed church sermons given on the subject by the Cornerstone Community Church and the Church Of Our Saviour.
Parliamentary petition to repeal Section 377A[edit | edit source]
- Main article: Parliamentary petition to repeal Section 377A
In the second weekend of October 2007, a parliamentary petition to repeal Section 377A was organised by human rights lawyer George Hwang, CEO of LGBT web portal Fridae.com Dr Stuart Koe and housewife Tan Joo Hymn [54]. It was revealed during a press conference that it had garnered 2,519 signatures from Singaporeans and Singapore residents (see video:[55]).
The parliamentary petition was a democratic instrument that had lain dormant until resurrected by its organisers. The last time such a petition was presented to Parliament was over 20 years ago. The current one was endorsed by the Clerk of Parliament and scheduled to be presented by NMP Siew Kum Hong on Monday, 22 Oct 07.
Parliamentary debate[edit | edit source]
- Main article: Parliamentary petition to repeal Section 377A
On Monday, 22 October 2007, Nominated Member of Parliament Siew Kum Hong tabled a petition to the Parliament of the Republic of Singapore in support of the repeal of Section 377A (see videos:[56],[57],[58],[59],[60]). A petition is required to pass through the scrutiny of the Public Petitions Committee in order for the issue to be fully debated in Parliament. The debate which ensued regarding the petition was the most heated in recent Parliamentary history.
The most impassioned opposition to the petition was provided by fellow NMP Thio Li-ann, imploring the government to retain Section 377A (see videos:[61],[62],[63],[64]).
There were Members of Parliament, however, who spoke up in support of repealing Section 377A or to highlight its legal and moral inconsistencies. They were PAP MPs Charles Chong (see video:[65],[66]), Baey Yam Keng (see videos:[67],[68],[69] ) and Hri Kumar Nair (see videos:[70], [71],transcript of speech). (For a complete list of MPs who spoke regarding Section 377A, see: [72])
The most important statements were made by Hri Kumar Nair who pointed out that the retention of a law that was not proactively enforced would undermine the integrity of the Penal Code:
"Sir, first, it is unclear what the current legal position is. In a statement on 7th of November 2006, the Ministry of Home Affairs said that, with respect to section 377A, it will not be proactive in enforcing the section against adult males engaging in consensual sex with each other in private. But what does that mean? Does it mean that the Police will not act on complaints or that suspects may be investigated but ultimately not arrested or prosecuted? Or is it the case that the Attorney-General, who has prosecutorial discretion, may prosecute some but not all offenders? That puts the Attorney-General in a difficult position because selective prosecution will give rise to more issues.
But if the intention is not to do anything at all, then what is the purpose of having the law? Does it not hurt our credibility that we have laws that are toothless? The Penal Code is an important piece of legislation and, in the long run, making some conduct criminal under our Penal Code whilst stating that the law will not be enforced, simply invites attacks on the integrity of the Code."
Other PAP backbenchers (Christopher de Souza, Zaqy Mohamad, Indranee Rajah, Alvin Yeo, Ho Geok Choo, Ong Kian Min, Cynthia Phua, Muhammad Faishal Ibrahim, Lim Biow Chuan and Seah Kian Peng), while endorsing the retention of Section 377A, did offer words of support for the gay community (see video).
Ms. Indranee Rajah, a PAP Member of Parliament and former chairperson of the Government Parliamentary Committee for Law and Home Affairs, reiterated the Ministry of Home Affairs' "assurance" that it would not actively prosecute people under that Section. "But in recognition of the fact that there is still quite a strong majority uncomfortable with homosexuality, the Section must stay," she said. However, she suggested that Singaporean society could evolve to accept homosexuality in the future (see video:[73]).
Disappointingly, opposition MP and Workers' Party chairperson Sylvia Lim did not take a stand regarding the repeal of Section 377A (see video:[74]). She proposed the setting up of a Select Committee to scrutinise the wording and execution of the Penal Code and to comprehensively archive and make publicly available feedback from all civic groups.
In his concluding speech, Prime Minister Lee Hsien Loong highlighted the point that Singapore was "basically a conservative society" with many being "uncomfortable with homosexuals, more so with public display of homosexual behaviour" (see videos:[75],[76],[77],[78],[79] and transcript of speech). However, as recognition that homosexuals “are often responsible, invaluable, and highly respected contributing members of society”, the government would not "proactively enforce Section 377A on them."
Other important statements which the Prime Minister made, revealing Singapore's concept of human rights, were that his government did not "consider homosexuals a minority, in the sense that we consider, say, Malays and Indians as minorities, with minority rights protected under the law" and that it would not "allow or encourage activists to champion gay rights as they do in the West."
He said, "The decision on whether or not to decriminalise gay sex is a very divisive one and until there is a broader consensus on the matter, Singapore will stick to the status quo."
The eventual decision by Parliament was to retain Section 377A. (See archives of all parliamentary speeches made with regard to the Penal Code review on Monday, 22 Oct 07 and Tuesday, 23 Oct 07).
The incongruity of decriminalising oral and anal sex for heterosexuals but not for male homosexuals was highlighted in the international media[80]. It could also be argued that with the repeal of Section 377, penetrative sex between gay men was henceforth legal while non-penetrative sex remained illegal!
Repealing the non-gender specific Section 377 while retaining Section 377A, which criminalises sex specifically between men, effectively served to enshrine discrimination against MSM (men who have sex with men) in Singapore's legal system. Whether this was constitutional or not was thrashed out in the courts several years later.
Reaction of the public[edit | edit source]
While conservative Singaporeans who had agitated for the retention of Section 377A were pleased, the LGBT community and more progressive factions were enraged.
Subhas Anandan, president of the Association of Criminal Lawyers in Singapore, questioned the rationale for not repealing Section 377A in a Channel NewsAsia interview:
"If you are a homosexual or a lesbian, I think you can get into trouble. We are talking about an inclusive society and being more broad-minded. Why do we want to keep these people away, out of the circle? I think we should be more broad-minded, more sympathetic and allow these people to be included in our society."[81]
Consequences of retention[edit | edit source]
The debate over whether or not to repeal Singapore's anti-gay law attracted the attention of the international media (see video), as it was perceived to be a bellwether of Singapore's human rights record.
In view of the lack of precedent of there being a law in the Penal Code retained only for symbolic reasons, not to be enforced, plus the ambiguity over what constituted "gross indecency", and the repeal of the original Section 377 criminalising carnal intercourse against the order of nature, some academic lawyers have argued that ironically, homosexual anal sex in Singapore was no longer illegal even though the apparently less abhorrent gay oral sex still was [82].
In January 2008, subsidiary legislation was implemented to amend the schedules of various criminal statutes so as to bring them in line with the recent Penal Code reforms which took effect on 1 February 2008. One of the changes was that after the latter date, all persons convicted under Section 377A would no longer need to be registered, i.e. they would not have any criminal record for this offence [83]. At the time of writing, the legal and social implications of this were still unclear.
Controversy over scope of Section 377A before and after repeal of former Section 377[edit | edit source]
Before the repeal of the former Section 377 which criminalised penetrative sex between two individuals of any gender, it was clear to the courts that Section 377A would be used only to prosecute cases of non-penetrative sex between men. However, after the repeal of the erstwhile Section 377 in 2007, it became far from obvious if the ambit of Section 377A also included penetrative sex between men. This was a point brought up in the series of challenges to the constitutionality of Section 377A initiated by human rights lawyer M Ravi on behalf of his client Tan Eng Hong in 2010 (see below).
K Shanmugam: S'pore "not ready" to repeal 377A[edit | edit source]
On Thursday, 2 July 2009, a New Delhi high court issued a landmark ruling which overturned Section 377 of the Indian Penal Code, a 150-year-old British colonial law criminalising penetrative homosexual sex (see video:[84]). 3 days later, on Sunday, 5 July 2009, Law Minister K Shanmugam was asked by female grassroots leader Khartini Abdul Khalid during a dialogue session at Punggol Central Division whether it was time for Singapore, whose laws were "copied" from India by the British, to repeal Section 377A. Shanmugam replied "no" because Singapore society was "not ready" for it[85].
Singapore's human rights report card[edit | edit source]
- Main article: Universal Periodic Review: Singapore LGBT issues
On 31 October 2010, at least 8 civil society groups, including the LGBT one, People Like Us (PLU), submitted their views on Singapore's human rights track record to the United Nations ahead of the 1 November 2010 deadline. The move was part of the Universal Periodic Review of all UN member states and was the first time that Singapore's human rights record came under scrutiny by the UN. The discrimination against homosexuals under Section 377A was one of the issues highlighted (see video).
Section 377A actively enforced again[edit | edit source]
In an apparent reneging of Prime Minister Lee Hsien Loong's word and the government's promise never to apply Section 377A again, the police employed a decoy to entrap an ethnic Indian Malaysian man allegedly cruising for gay sex around the disused cemetary at Jalan Kubor in 2010. This episode of the police entrapment of gay men occurred after almost a decade of cessation of the operations.
Section 377A was again used to charge two men having for having oral sex in a toilet cubicle at Mustafa Centre. The gay community was indignant because the non-gay discriminatory Section 294(a), which criminalises "any obscene act in any public place" irrespective of gender (see below) could have easily been used instead.
Constitutional challenge[edit | edit source]
- Main article: Section 377A constitutional challenge
On Friday, 24 September 2010, well known criminal and human rights lawyer M Ravi filed an application in the High Court to challenge the constitutionality of Section 377A on behalf of his client Tan Eng Hong, who was charged for allegedly having oral sex with another consenting adult male, Chin, in a locked cubicle of a public toilet[86],[87]. Ravi's main argument was that Section 377A was fundamentally a provision of the law that fell into the category of laws that expressed human prejudices. A considerable amount of background research regarding the case was done by then NUS law undergraduate Indulekshmi Rajeswari.
Tan was originally charged under Section 377A but to avoid the inconvenience of a constitutional challenge which would set a precedent and open the floodgates to other constitutional challenges, the Attorney-General’s Chambers (AGC) withdrew the 377A charges in mid-October 2010 and substituted charges under Section 294(a) instead.
Section 294(a) of the Penal Code[88] states:
"Whoever, to the annoyance of others does any obscene act in any public place...shall be punished with imprisonment for a term which may extend to 3 months, or with fine, or with both"
Section 294(a), in contradistinction to Section 377A, does not discriminate against gay men as it applies to anyone who has sex in a public place, regardless of gender. Section 294(a) also carries a lighter penalty of a maximum of 3 months' imprisonment as compared to Section 377A's maximum of 2 years in jail, even for sex in a private environment.
On 10 November 2010, Chin pleaded guilty to the substituted charge of Section 294(a) and was fined S$3,000. In mid-December 2010, Tan also pleaded guilty under Section 294(a) and was likewise fined S$3,000.
A public forum entitled, "377A – Where did it come from and where should it go" was held from 3pm to 6pm on Saturday, 27 November 2010 at The Public House, 42 Circular Road, Boat Quay. It was organised by Singapore Democratic Party politician Vincent Wijeysingha and moderated by Mathia Lee. M Ravi and Wijeysingha both spoke regarding the forthcoming constitutional challenge[89]. Ravi gave a humorous, light-hearted speech to put the audience at ease while rallying support for his client Tan Eng Hong's case because the LGBT community had generally been dismissive of it due to its cottaging background[90]. The head of Singapore's foremost LGBT advocacy group at the time wrote on the Singapore Gay News List: "...using a public sex case to challenge 377A is self-defeating." Despite the lack of support from the LGBT community, human rights activists and the general public, Ravi pushed on with the case.
At the hearing of the constitutional challenge on Tuesday, 7 December 10, the Assistant Registrar agreed with the Attorney-General’s application to strike out the case on the grounds that the plaintiff did not have standing ("locus standi" in legal terminology) since he was no longer being charged under Section 377A but under Section 294(a) instead, and therefore the proceedings were frivolous, vexatious and an abuse of process. Tan then appealed to the High Court to reverse the Assistant Registrar’s striking-out decision.
In a judgment dated 15 March 2011, High Court judge Lai Siu Chiu dismissed the first appeal relating to the constitutional challenge against Section 377A filed by Tan Eng Hong[91]. However, she ruled that “a citizen should not have to wait until he is prosecuted before he may assert his constitutional rights” and Tan therefore did undoubtedly have "locus standi"[92], that is, he was sufficiently affected by this law to have a legitimate interest in the issue. Nevertheless, she stated that there was no "real controversy" which required the court’s attention ("real controversy" being legalese meaning that it was not a matter of importance to be decided by a court), thus reaffirming the Assistant Registrar's striking-out decision (see full text of judgment[93],[94]). Many observers regarded Justice Lai's judgment as incongruous, as how could the issue be of no "real controversy" when the law affected the lives of thousands of gay men in Singapore?
M Ravi's appeal against Justice Lai's "no real controversy" ruling took place on Tuesday, 27 September 2011[95],[96],[97],[98]. Owing to widespread publicity by Roy Tan in the LGBT community[99],[100], the court's gallery, for the first time in this particular case, was packed with interested observers. Writer Ng Yi-Sheng, who was there to watch the proceedings, reported on the unfolding drama and later interviewed Ravi and Tan Eng Hong[101],[102]:
"At 10 am today, he (Ravi) faced down the Attorney-General's Chambers (AGC) in the Court of Appeal before Justices VK Rajah, Andrew Phang and Judith Prakash. Before a packed gallery of his supporters, he made a compelling, substantiated argument against the constitutionality of s377A, assisted by his researcher Indulekshmi Rajeswari. Ravi's eloquence was entirely expected, but what happened next was astonishing. Aedit bin Abdullah took the floor. As a crack lawyer from the AGC and former district judge, he should have been formidable. Yet his counter-arguments were weak, plagued by fallacies and circular logic. The judges didn't let this slide, either. We in the gallery were transfixed as each we watched the proceedings, each of the three judges taking turns to interrupt the counter-argument to point out the flaws and lapses in reasoning. At several points , the entire room began laughing at the absurdity of the replies, as when Abdullah resorted to mixed metaphors, protesting that the abuse of s377A was “just a spectre that is not real.” At noon, the judges adjourned the court, declaring that they would reserve judgment. Their verdict should be released three to four weeks from now. This means it's far too early to celebrate. Still, this reporter is optimistic. Everything I've observed points towards a ruling in our favour – one of several victories we'll need in the long journey towards gay equality in the eyes of the law."
These were the arguments M Ravi used to bolster his case:[103],[104].
Landmark ruling[edit | edit source]
On Tuesday, 21 August 2012, after nearly a year of deliberation, Singapore’s Court of Appeal, in a 106-page judgment, overturned High Court judge Lai Siu Chiu’s decision on 15 March 2011 when she ruled that there was no "real controversy" which required the court’s attention [105],[106],[107],[108],[109].
The 3 presiding Judges of Appeal, Justices VK Rajah, Andrew Phang and Judith Prakash, found an arguable case on the constitutionality of Section 377A that ought to be heard in the High Court. They explained that Tan was at the outset arrested, investigated, detained and charged exclusively under Section 377A. This, they said, squarely raised the issue as to whether Tan's initial detention and prosecution were in accordance with the law. Secondly, there was a real and credible threat of prosecution under Section 377A.
They said Tan would be allowed to vindicate his rights before the courts based on a finding that there was an arguable violation of his constitutional rights. The judges also wanted to acknowledge that Section 377A in its current form extended to private consensual sexual conduct between adult males, adding that "this provision affects the lives of a not insignificant portion of our community in a very real and intimate way. The constitutionality or otherwise of Section 377A is thus of real public interest. We also note that Section 377A has other effects beyond criminal sanctions." (See full text of judgment in main article: Archive of Court of Appeal judgment in Tan Eng Hong v AG, 21 August 2012). This landmark case and ruling were highlighted in the academic book "Constitutional and Administrative Law in Singapore: Cases, Materials and Commentary" by Kevin Y L Tan and Thio Li-Ann, published by SAL Academy Publishing in 2021[110].
Another seminal point in the ruling was that the appeal judges were "unable to agree with the AG that violations of constitutional rights only occur when a person is prosecuted under an allegedly unconstitutional law." This corollary of this was that any Singapore citizen had the standing to challenge the constitutionality of a law as long as he felt that his constitutional rights were being violated by the impugned law, even though he had not been charged under it. This groundbreaking implication was first realised and articulated by Roy Tan on the Singapore gay news list (SiGNeL)[111].
Gay couple files similar Constitutional challenge[edit | edit source]
As soon as other stakeholders like Fridae founder, Stuart Koe, realised this, a gay couple in a 15-year relationship, Gary Lim and Kenneth Chee, were encouraged to be the new face of the Constitutional challenge, both to elicit widespread support from the LGBT community and to present a favourable image of the gay community to the general public[112]. Their lawyers were well known human rights campaigner, Choo Zheng Xi, founder of The Online Citizen, Choo's boss, seasoned lawyer, Peter Low, both of Peter Low LLC, and Indulekshmi Rajeswari, who as a law student, had helped M Ravi with the research on the challenge and who after graduation, worked for the law company Myintsoe & Selvaraj. Their case was scheduled to be heard in the High Court on 14 February 2013[113].
M Ravi, on behalf of his client, Tan Eng Hong, filed a separate challenge to the constitutionality of Section 377A. Tan's case was initially slated for slightly earlier, on 25 January 2013[114] but was later postponed to 6 March 2013, later than the gay couple's challenge[115].
Religious and political opposition[edit | edit source]
On 13 January 2013, Faith Community Baptist Church founding pastor Lawrence Khong told his congregation with Emeritus Senior Minister Goh Chok Tong in the audience that his church members were committed to “build strong families in Singapore” and by their definition the family unit “comprises a man as Father, a woman as Mother, and Children.”
Khong warned that they "see a looming threat to this basic building block by homosexual activists seeking to repeal Section 377A of the Penal Code."[116]
A statement later released by the church stated, “Reverend Khong used the opportunity to highlight to Mr. Goh that homosexual activists have been increasingly stepping up to challenge this framework, especially in their efforts to repeal Section 377A of the Penal Code – a move detrimental to family and family ties.”[117],[118]
Khong's actions were probably made in response to an earlier meeting in November 2012 by representatives from queer womens' group Sayoni with Minister of Law and Foreign Affairs, K Shanmugam, in which they discussed the multifarious, cascading effects of laws and censorship in Singapore[119],[120],[121],[122],[123]. The minister replied that the "majority’s social acceptance" was needed before there could be any changes in laws and policies[124]. A raging online debate ensued in the mainstream media.
A second pastor, Yang Tuck Yoong of Cornerstone Community Church, later posted a message on his website urging Christians to be “battle-ready” for “not just for this battle, but for the many battles ahead of us” against the “LGBT bloc”. However, he subsequently removed more than 100 words from his original statement after numerous complaints, both from the LGBT community and its mainstream supporters[125]. Researcher Scott Teng, aged 29, subsequently lodged a police report against Yang, saying it was "an incitement of violence"[126].
After a speech at the Singapore Perspectives conference organised by the Institute of Policy Studies on Monday, 28 January 2013, Prime Minister Lee Hsien Loong was asked by a participant, civil society activist Braema Mathi, how the fact that the republic was a secular country reconciled with “an old and archaic law that nearly discriminates against a whole (group) of people”. Lee replied, “Why is that law on the books? Because it’s always been there and I think we just leave it.”[127],[128] The LGBT community expressed their extreme disappointment with his comments.
High Court hearing[edit | edit source]
Gay couple's challenge[edit | edit source]
On Thursday, 14 February 2013, the High Court today held the first full hearing of the constitutional challenge filed by gay couple Gary Lim and Kenneth Chee. The case was heard by Justice Quentin Loh and was conducted in chambers, meaning that only the parties who were directly involved in the matter could attend. Chee or Lim were not present for the hearing that lasted three and a half hours. Their lawyers filed a 123-page submission[129].
Arguing that section 377A was constitutional, the Attorney-General said that the law applied to all men, not just self-identified gay men, who have sex with other men; the law “reflects public morality” and "because there is a scientifically-established difference between the public health risks associated with sex between men and sex between women."
Supporting affidavits by Prof Roy Chan, founder and president of Action for AIDS, and Bryan Choong, centre manager and counsellor of Oogachaga, a gay and lesbian affirmative counseling agency in Singapore, to explain the negative effect of Section 377A on homosexual men were not allowed by the judge[130].
Tan Eng Hong's challenge[edit | edit source]
On Wednesday, 6 March 2013, Justice Quentin Loh heard lawyer M Ravi's arguments on behalf of his client Tan Eng Hong, opposed by Aedit Abdullah from the Attorney-General’s Chambers (AGC)[131].
Ravi’s case for the repeal rested on 2 articles of Singapore’s Constitution. First, Article 9(1) stated that "No person shall be deprived of his life or personal liberty save in accordance with law. “Law” here had been conclusively agreed to mean “natural justice”, not just what was in the statute books. Ravi argued that Section 377A did not meet the requirements of natural justice, since it was “inherently absurd, arbitrary [and] vague”. It was absurd and arbitrary because it persecuted people born with an immutable sexual orientation, and vague because its interpretation rested on the extremely subjective concept of “gross indecency”.
Second, Article 12(1) stated "All persons are equal before the law and entitled to the equal protection of the law." Section 377A discriminated based on sexual orientation, which had been recognised as contravening legal principles of equality in Hong Kong, India, Nepal, Fiji, the US, Portugal, Chile and Peru. The law was also discriminatory within the homosexual community because there was no convincing reason why gay male sex was criminalised while lesbian sex was legally sanctioned.
The AGC’s case, on the other hand, fundamentally rested on the principle of “public morality”, a concept explicitly referred to in the Constitution. Aedit claimed that the Singaporean public still clearly viewed gay sex as immoral, quoting Singapore’s Nanyang Technological University’s study that found that by 2010, 64.5% of Singaporeans still held negative attitudes towards homosexuals, with 25.3% expressing positive attitudes and 10.2% neutral. He further countered that comparisons of Singapore to Hong Kong, the US and India were invalid, given that their legal systems formally recognised a right to individual privacy, whereas Singapore’s did not.
Justice Loh, who did not appear to be swayed by either side, reserved judgment on the case[132].
Judgment on gay couple's challenge[edit | edit source]
On Wednesday, 10 April 2013, the High Court released Justice Quentin Loh's 92-page judgment[133].
In it, Loh said that “s 377A essentially addresses a social and public morality concern which our Legislature identified in 1938 and subsequently affirmed in 2007.” Addressing the frequently asked question which was also raised by the plaintiffs, i.e., why retain Section 377A if no one was to be prosecuted under it, Loh stated, “If there’s no prosecution of s 377A offences, that is no ground to say that s 377A is unconstitutional.”
He added, “(D)uring the October 2007 Parliamentary Debates, Parliament considered s 377 and s 377A carefully, and after debating the matter fully, endorsed the repeal of s 377 but chose to retain s 377 A. I can see no basis in this case to interfere given my reasons set out above. It is clear that Parliament saw a reasonable differentia upon which to distinguish between two classes: anal and oral sex in private between a consenting man and a consenting woman (both aged 16 and above) was acceptable, but the same conduct was repugnant and offensive when carried out between two men even if both men were consenting parties. There is therefore no reason to strike down the basis of the classification prescribed by s 377A – viz, male homosexuality – as arbitrary or discriminatory, or on the ground that it does not bear any rational relation to the purpose of the provision.”
He concluded that, “In my judgment, the object of s 377A is clear. It criminalises male homosexual conduct that is not acceptable in our society. Its retention was endorsed by Parliament in 2007… I also find that the purpose of s 377A is not a purpose which is so patently wrong as to render it an illegitimate purpose upon which to base a classification prescribed by the law."
Members of the LGBT community expressed their outrage at the ruling[134].
On 18 April 2013, the gay couple announced that they would file an appeal against the ruling. Stakeholders launched a fundraising campaign on the popular crowdfunding website, Indiegogo[135], to raise S$50,000 to help meet court costs[136]. The campaign video[137] was produced by film directors Boo Junfeng and Loo Zihan. The fundraiser proved to be the most successful in Singapore's history with the amount requested exceeded in a matter of weeks and the final figure totalling over S$100,000. This was testimony to the amount of support that the LGBT community bestowed on the couple, in contrast to the almost non-existent support offered to Tan Eng Hong.
During Pink Dot 2013, Gary Lim and Kenneth Chee were invited to be the flag bearers on the podium but no invitation was extended, nor gratitude expressed to or even mere mention made of the initiators of the constitutional challenge - Tan Eng Hong and M Ravi who clinched the successful court rulings which enabled the challenge to come thus far. This led astute observers like Lisa Li[138],[139], Nicholas Leow[140],[141] and others to comment that the LGBT community indulged in discrimination against its own members - those who were not in relationships and who did not possess the poster-friendly image that the gay couple projected[142],[143]. The discrepancy was redressed to some extent when M Ravi was invited to give a speech the following year at Pink Dot 2014 (see video:[144]).
Change in gay couple's legal team[edit | edit source]
On Tuesday, 9 July 2013, Lim and Chee issued a media statement that they had appointed Senior Counsel, Deborah Barker, who was a partner and head of Litigation & Dispute Resolution at KhattarWong LLP, one of Singapore’s leading law firms, to represent them at the Court of Appeal[145].
They had also filed for the admission of Queen's Counsel, Lord Peter Goldsmith, to argue their appeal as co-counsel with Barker. Lord Goldsmith Q.C. was Chair of Asia and European Litigation at Debevoise and Plimpton LLP, and was Attorney-General for England, Wales and Northern Ireland from 2001 to 2007 under Prime Minister Tony Blair[146],[147].
Intervention by Tan Eng Hong[edit | edit source]
On Tuesday, 13 August 2013, lawyer M Ravi, on behalf of his client Tan Eng Hong, made an application to the High Court to be recognised as an interested party and to intervene in Gary Lim and Kenneth Chee's upcoming Court of Appeal hearing as the outcome of the gay couple's appeal could affect Tan's case in which judgment was still pending [148],[149],[150],[151],[152]. This was despite the fact that it had been 2 years and 11 months since Tan's matter came before the Court.
Gay couple's Queen's Counsel application rejected[edit | edit source]
On Thursday, 19 September 2013, Court of Appeal Justice VK Rajah dismissed the gay couple's application for Queen's Counsel, Lord Peter Goldsmith, to represent them. He ruled that the application did not meet the requirement for admitting foreign senior counsel on an ad hoc basis under the Legal Profession Act, where there must be a “special reason” to do so[153],[154],[155],[156].
Judgment on Tan Eng Hong's challenge[edit | edit source]
On Wednesday, 2 October 2013, High Court Justice Quentin Loh released a 54-page judgment which stated that he "found that the statute has not infringed the rights of the plaintiff, Tan Eng Hong, and is not inconsistent with Articles 9 and 12 of the Constitution of Singapore, which ensures that one will not be deprived of his life or personal liberty save in accordance with law and that all persons are equal before the law and entitled to the equal protection of the law, respectively."[157]
While Justice Loh responded to wide-ranging arguments from decisions made by foreign courts to decriminalise male to male sex to criminalising a "natural and immutable attribute" made by M Ravi, he also said of Section 377A, "The purpose and object of Section 377A when its very first predecessor was enacted in 1938 was to respond to a prevalence of grossly indecent acts between males – whether in public or in private – which the Legislature deemed a regrettable state of affairs that was not desirable... The purpose and object of Section 377A remains the same today."
Tan Eng Hong successfully applies to consolidate both challenges[edit | edit source]
On Thursday, 10 October 2013, Judges of Appeal Andrew Phang, VK Rajah and Woo Bih Li convened on an urgent basis and ruled that the issues in both cases were essentially the same and should be heard together[158],[159],[160],[161]. M Ravi explained that his client's application to have the 2 cases consolidated was "essentially for the beneficial effect of preventing a multiplicity of actions and preventing the same questions of law and constitutional issues from being tried on separate occasions with potentially different results." He added that should judgment be issued in the gay couple's case before Tan's appeal was heard, his client "may be deprived of or have abbreviated his opportunity to vindicate his rights through access to the entire appellate process."
Court of Appeal hears 377A Constitutional challenge by Tan Eng Hong & gay couple[edit | edit source]
On 14 and 15 July 2014, Court of Appeal Justices Andrew Phang, Belinda Ang and Woo Bih Li heard the challenges to the constitutionality of Section 377A from both parties - Tan Eng Hong, and the gay couple, Lim Meng Suang and Kenneth Chee.
The couple's lawyer, Deborah Barker, said her clients, who had been in a romantic and sexual relationship for the past 16 years, were not seeking to change the Constitution, but only to enforce it. They were not asking for social change or the affirmation that male homosexual conduct was acceptable in Singapore. Rather, they were seeking a ruling that the majority could not impose its views, disguised as public morality, to target an unpopular minority group by restricting their intimate conduct in private which was legal for everyone else[162],[163],[164].
M Ravi, acting for Tan Eng Hong, argued that he was not asking the court to decide on questions of social policy but to deal with the issue of whether Section 377A unlawfully discriminated against a segment of society[165]. He said, “To characterise the potential violation of a fundamental right against a not insignificant segment of society as a matter of social policy that is up to the legislature is to completely disregard the function of this court. This case is squarely a matter of constitutional law. The legal issue the court is constitutionally mandated to determine is whether 377A unlawfully discriminates against a segment of our society.”
Ravi said Section 377A infringed on the right to equality under Article 12 and violated the rights of gay people to life and personal liberty under Article 9 of the Constitution. He argued that gay males and lesbians were treated differently under the law – Section 377A only criminalises sex between males, but not between females.
Presiding judge Andrew Phang said that the Court of Appeal should not, without a legal basis, “step into the shoes of parliament” which decided in 2007 not to repeal Section 377A and that a decision would be delivered in due course[166].
Court of Appeal rules 377A constitutional[edit | edit source]
In a 100-page judgment released by the Court of Appeal on 28 October 2014, Justices Andrew Phang, Belinda Ang and Woo Bih Li ruled that Section 377A was constitutional[167],[168],[169],[170],[171],[172]. The decision covered both contesting cases by gay couple Gary Lim and Kenneth Chee, as well as Tan Eng Hong (see Archive of Court of Appeal judgment in Lim Meng Suang & Tan Eng Hong v AG, 28 October 2014).
The court rejected Tan's lawyer, M Ravi's argument that Section 377A was absurd because it criminalised a minority based on a core aspect of their identity which was unchangeable[173]. It noted that there were still conflicting scientific views on whether sexual orientation was unchangeable so it was premature to express any conclusive views on it. In any case, the supposed unchangeability of sexual orientation was an "extra-legal" issue that was outside the remit of the court.
While Article 12 of the Constitution guaranteed equal protection, Singapore's legislature was allowed to pass laws that treated people differently if they were based on a "reasonable classification". The court used the "reasonable classification test" to determine whether a statute that differentiated was consistent with Article 12. Under this test, a statute that differentiated was constitutional if the classification was based on an "intelligible differentia", meaning a distinguishing feature that was discernible, and if the differentia bore a rational relation to the objective of the law. It maintained that the classification prescribed by Section 377A, i.e., men who performed acts of "gross indecency" with other men, was based on an intelligible differentia. After analysing historical documents on the enactment of Section 377A, the court ruled that there was a "complete coincidence" in the relation between that differentia and the purpose and objective of Section 377A - to enforce societal morality. As such, Section 377A passed legal muster under this test. The court went on to note that Article 12 did not address the issues involved in Section 377A. While the provision specifically prohibited discrimination based on religion, race, descent or place of birth, the words "gender", "sex" and "sexual orientation" were noticeably absent.
In conclusion, the judges noted the "vexing difficulty" in dealing with the emotional extra-legal considerations surrounding the topic, and emphasised that they could only consider the legal arguments. They stated, "While we understand the deeply-held personal feelings of the appellants, there is nothing that this court can do to assist them. Their remedy lies, if at all, in the legislative sphere."
In response, lawyer M Ravi commented, "Today’s decision has legitimised discrimination against gay men and approved the criminalisation of the conduct of their private lives by statute."[174],[175] He called the ruling a "huge step backwards for human rights in Singapore".
On their Indiegogo campaign page, the gay couple announced, "We are deeply disappointed with the judgment of the Court and though it has ruled that it is beyond its judiciary function to help the LGBT community, we are thankful that the justices have taken the time to consider this appeal in detail. We hope that parliament will be able to do so as well."[176]
Local LGBT groups[177],[178],[179],[180],[181],[182],[183] and international human rights organisations[184] also expressed their dismay at the ruling.
MARUAH's forum on 377A constitutionality judgment[edit | edit source]
On 1 February 2015, MARUAH organised a forum entitled, "Section 377A: What Does It Really Constitute?"[185]. It was held from 2:30pm to 5:30pm at #02-08, Heritage Place, 21 Tan Quee Lan Street, Singapore 188108. Advertisement: "The Court of Appeal has ruled that Section 377A is constitutional. What does this mean for the state of our civil liberties? Can we retain 377A, along with principles of equality and justice? Should gender and sexual orientation be included in our right to protection against discrimination? Come hear lawyers and academics speak on this matter."
The panel of speakers comprised M Ravi, Peter Low, Jack Tsen-Ta Lee and Alex Au. The moderator was Braema Mathi.
Ivan Tan comes out[edit | edit source]
In December 2014, Ivan Tan gave an exclusive interview published in Vol. 4 (2014) of Queer Asian Spirit E-Zine in which he revealed that he was the "Tan Eng Hong" that had started the 377A Constitutional challenge with human rights lawyer M Ravi in 2010[186] (original content taken offline but see Archive of Queer Asian Spirit article, "The Accidental Activist: Ivan Tan takes on Singapore’s Anti-Gay Law", by Lee Anthony Shaw, QAS E-Zine, Vol. 4 (2014): Queer Diversity). Tan consented for the first time to having his photograph, which appeared at the bottom of the article, published in connection with the case. He had hitherto chosen to remain faceless to the public in the ongoing saga and had preferred to use his less well known Chinese name instead of the name by which most people knew him.
In the article, Tan talked about his spirituality which gave him to courage to launch the Constitutional challenge at great cost to his personal and professional life and to his family.
Ang Yong Guan moots referendum on Section 377A[edit | edit source]
On Sunday, 7 September 2015, during the hustings for the 2015 General Elections, SingFirst (Singaporeans First) candidate, psychologist Ang Yong Guan, announced:
"We will push for referendum on these issues. Another example is Section 377A. We respect the diverse views on these issues. These are moralistic issues. Issues where people hold strong views. And the only way to sort it out is to have a referendum. We need to have open debate to discuss these issues. And we need to embrace diversity. We can no longer make assumptions for people. Referendum is the way forward!" (see video:[187]).
Singapore's second Universal Periodic Review in 2016[edit | edit source]
- Main article: Universal Periodic Review: Singapore LGBT issues
During the second Universal Periodic Review (UPR) of Singapore's human rights record which took place at the United Nations, Geneva on Wednesday, 27 January 2016, delegations from Austria, Brasil, Canada, the Czech Republic, Finland, France, Greece, Norway, Spain, Sweden, the United Kingdom and the United States of America recommended that the republic decriminalise consensual sex between men and eliminate discrimination against LGBT people.
However, Singapore's representative, Ambassador-At-Large, Chan Heng Chee basically repeated what her predecessor said during the first UPR cycle in 2011 - that the island nation had a conservative population and that Section 377A, which criminalises male gay sex, would remain but not be enforced, showing that no progress whatsoever had been made in protecting the rights of LGBT Singaporeans over the span of four-and-a-half years.
Penal Code Review Committee will not consider repeal of 377A[edit | edit source]
In 2016, a Penal Code Review Committee was set up to conduct a wide-ranging review of the Penal Code. It called for marital immunity for rape to be removed and also for attempted suicide to be decriminalised. It also proposed further protection for minors from sexual predators, as well as enhanced punishment for crimes committed against children, domestic maids and adults with mental or physical disabilities who could not fend for themselves. The 169 recommendations included updating the 150-year-old Penal Code with new laws to tackle emerging crime trends, such as voyeurism and the spreading of nude or explicit images. However, the glaring omission was that the committee decided that the repeal of Section 377A would not even be considered.
On 5 September 2018, Law Minister K Shanmugam even called a meeting to brief Christian leaders about the upcoming Penal Code Review where he assured them that Section 377A would be untouched[188]. The meeting was attended by National Council of Churches (NCCS) President, Bishop Terry Kee. Shanmugam also held a special briefing with pastors and church leaders and to receive feedback from the churches on Tuesday, 18 September from 11:30am to 12:30pm at St Andrew’s Cathedral Prayer Halls A-B.
Indian's decriminalisation of gay sex and effect on Singapore[edit | edit source]
On Thursday, 6 September 2018, India's Supreme Court unanimously ruled to decriminalise consensual gay sex, with Chief Justice Dipak Misra calling Section 377 of the Indian Penal Code "irrational, indefensible and manifestly arbitrary". The historic ruling's reverberations extended to Singapore.
Tommy Koh encourages another 377A constitutional challenge[edit | edit source]
On the very same day that the Indian judgment was announced, Simon Chesterman, dean of the National University of Singapore's Faculty of Law, shared a New York Times story on the landmark event on his Facebook, congratulating a former classmate from India and others on the victory. In the comments section below Chesterman's post, veteran diplomat Prof Tommy Koh who was Ambassador-at-Large at the Ministry of Foreign Affairs wrote[189],[190],[191],[192]:
"I would encourage our gay community to bring a class action to challenge the constitutionality of Section 377A".
Koh also liked a Facebook post on Friday, 7 September 2018 by Janadas Devan, the chief of Singapore government communications, which opined: "Speaking personally, I support Tommy's position. 377A is a bad law; it is bad law. Sooner or later, it will go. Pray sooner rather than later."
K Shanmugam: Singaporean society to decide on gay sex laws[edit | edit source]
- See also: K Shanmugam's views on homosexuality
On 7 September 2018, Law and Home Affairs Minister K Shanmugam, responding to the momentous development in India, commented that laws would have to keep pace with changes in societal views and it was up to society to decide which direction it wanted to take when it came to legislation on gay sex[193],[194].
He said: “Singapore...on this issue, it is a deeply split society. The majority oppose to any change to section 377A - they are opposed to removing it. A minority - I have to say, a growing minority - want it to be repealed. The Government is in the middle. This issue relates to social mores, values - so can you impose viewpoints on a majority when it so closely relates to a social value system?”
"The law is there but generally there have been no prosecutions for private conduct. People openly express themselves as gay, you got the gay parade. Police even approved a licensing for it, no-one gets prosecuted for declaring themselves as gay," he noted. “So really when was the last time someone was prosecuted?”
“Speaking for myself, if you ask me, in a personal capacity, personal view - people's lifestyles, sexual attitudes, (we) really should be careful about treating them as criminals or criminalising that." "But again it will be wrong for me to impose my personal views on society or as a policymaker,” he qualified. “We live our lives, live and let live. If one side pushes, you will expect a substantial push back.”
The following day, on Saturday, 8 September 2018, Shanmugam said that whether Section 377A was repealed or amended would be a matter for Parliament to decide[195],[196]. He added that depending on the legislation, public opinion was "often relevant" during public policymaking in Parliament and "that is the jurisprudential approach that many Courts around the world, including Singapore, take. What the public thinks, whether it's a majority view or minority view, these are usually not considerations. You look at the law and you compare it against the Constitution," he added. However, when it came to whether a piece of legislation should be amended or repealed, that would be a matter for the Executive, which comprised the Cabinet, and Parliament. "The Executive proposes and Parliament decides, and usually, depending on the legislation, public opinion can be relevant," he explained. When asked whether Section 377A could be challenged again in Singapore courts, Shanmugam replied: "Technically, it is possible for people to bring a challenge and there are rules, jurisprudence on how such challenges will be dealt with by the Courts."
Tommy Koh's comments reignite debate on 377A[edit | edit source]
Members of the LGBT community cheered the note of support from Koh[197],[198],[199],[200]. The organisers of Pink Dot quoted him on their Facebook page, with the hashtag #tryagain and added: "Time to get rid of the archaic law left behind by the British!" Leow Yangfa, the executive director of Oogachaga, told The Straits Times: "We would like to thank Prof Tommy Koh for the very generous word of encouragement for us to persevere in our efforts to seek equality and justice for everyone, regardless of our sexual orientation and/or gender identity."
However, on the other camp, conservative leaders fretted not just about the implications of India's historic move but also about Koh's Facebook comment. Pastor Lawrence Khong, chairman of LoveSingapore, a network of more than 100 churches in Singapore, quipped: "I'm somewhat concerned, perhaps even disappointed, that a public and some would consider a government figure is making a statement like that. It does not come across as being helpful to building cohesion in society. In considering this issue, we must consider how people feel about it not only as an issue of personal right, not only as an issue of discrimination, but also, what are the ramifications and social cost for society?" He urged the Government to take a cautious approach on the issue. The Singapore Islamic Scholars and Religious Teachers Association (Pergas) had previously asked Muslims not to attend any event that "supports transgression" of Islamic teaching on the family, including events in support of the LGBT community.
Lawyer Lim Biow Chuan, who was Deputy Speaker of Parliament, said the Government had been taking a cautious stance on the issue for many years. It had stated for the record that it would "accommodate the sensitivities of different communities so that there is room for all to exist harmoniously together". 377A was not proactively enforced, and all citizens, regardless of their sexual orientation, were free to lead their lives and pursue their activities in their private space without fear or violence or personal insecurity. Lim said: "It's still a very divisive issue in Singapore. If you look at our society today, we can't raise the topic without everyone getting riled up. I'm not convinced that (reviewing 377A) would be the right move at this point in time - it would just divide society. But maybe in the future, as people's values develop and change, we may find a better time to do so."
At a book launch on Friday evening, 7 September 2018, Ho Kwon Ping, chairman of Singapore Management University, responding to a question from an audience of more than 100 tertiary students, said that he backed Prof Koh’s stance, adding that it was “fundamentally untenable” for the Government to keep 377A without enforcing it. He questioned what it was doing to the notion of the rule of law. “Either you have 377A and you justify to people, which (will cause) a furore, or you repeal. You cannot have your cake and eat it too, and say you want to please everybody, it’s on the statutes, it is illegal in Singapore, but you are not prosecuting.” His personal views were that to be anti-LGBT was to be “on the wrong side of history”, as the issue had long evolved from being one framed around one’s morality or sexual orientation to one of fundamental human rights. Ho, who was also executive chairman of Banyan Tree Holdings, advised that it would be good for Singapore to show that “we are on the right side of history, rather than to be the last country in Asia to repeal such a law. We are certainly not going to be the first country — we are not leading it — but it would be a bit embarrassing to be the last man standing.”
Opinion pieces on the issue were also published by Bertha Henson[201], Lianhe Zaobao[202],[203], SG Magazine[204],[205], The Independent SG[206],[207], Dear Straight People[208],[209] and Salt & Light[210],[211]. The Online Citizen raised the sensitive question of whether the PAP government was trading gay rights for Christian support[212],[213].
On 13 September 2018, the National Council of Churches of Singapore (NCCS) released a statement saying that it did not support the repeal of Section 377A, adding that it believed "the homosexual lifestyle is not only harmful for individuals, but also for families and society as a whole"[214],[215],[216],[217]. The statement went on to say that the Bible "clearly and categorically prohibits homosexual behaviour because it is a perversion of the way in which God has ordered human sexual relationships. The repeal of Section 377A would result in the normalisation and promotion of this lifestyle, which in turn would lead to undesirable moral and social consequences, a slippery slope as seen in some countries taking this step."
The NCCS' stance was rebutted in an article by pro-LGBT Christian Asher Mak who wrote that Christians saw LGBT rights as an issue to tackle but did not hear the stories of hurt and rejection experienced by the community[218]. Leslie Lee wrote to the Ministry of Home Affairs to raise the possibility that the statement issued by the NCCS contravened the Maintenance of Religious Harmony Act. He encouraged others who believed that Singapore should remain secular to write in too[219],[220]. Rio Hoe call into question the importance of "traditional family values"[221],[222].
Ipsos survey[edit | edit source]
On 10 September 2018, The Straits Times published the results of an online survey by Ipsos Public Affairs, an independent market research company, conducted over a period of four days from end-July to early August 2018 to understand the current social attitudes towards same-sex relationships[223],[224]. It showed that slightly more than half (55%) of the people in Singapore still supported Section 377A while 12% said they opposed it. 33% of the residents here were more accepting of same-sex relationships than he or she was five years before, while 35% were not.
A total of 750 Singaporean citizens and permanent residents aged 15 to 65 took part in the study. Sentiment varied according to gender, with males more likely to strongly support the law than females. Singapore residents aged 15 to 24 were more likely to oppose the law, while residents aged 55 to 65 were more likely to support it. People here were also asked the extent to which they agreed or disagreed with the statement "I believe that Singaporeans should be able to participate in same-sex relationships". 28% agreed with the statement, while 38% did not.
Ipsos said the findings indicated that attitudes towards the issue of same-sex relationships had changed and were likely to continue to change, albeit at a slow pace. This change was attributed to perceptions of shifts in Singapore's social norms with respect to same-sex relationships, increased conversations on social media and more direct exposure to same-sex relationships. Ipsos associate research director Robert McPhedran said: "This research indicates that the normative values of Singaporeans with respect to LGBTQ issues are gradually shifting. As has occurred in other countries globally, increased dialogue regarding same-sex relationships has contributed to higher acceptance among Singaporeans. This is particularly the case for the younger generation. Nonetheless, as PM Lee has previously noted, a social consensus remains far from being reached."
An online poll conducted by Yahoo! News on the same day showed that roughly half supported repealing Section 377A while the other half were in favour of keeping it[225],[226].
A 2014 survey of more than 4,000 Singapore residents conducted by the Institute of Policy Studies similarly found that people here were largely conservative. In the study, 78.2% of respondents said that same-sex relationships were wrong, while 72.9% were not in favour of gay marriage.
Blackbox Research survey[edit | edit source]
Market research consultancy Blackbox Research conducted a poll commissioned by Yahoo! News Singapore from 12 to 19 October 2018 on attitudes towards anti-gay laws using a sample size of 1000 Singaporeans and permanent residents[227].
One of the questions posed in the survey was: “Repealing Section 377A would lead to the breakdown of the family unit in Singapore. Do you agree?” 36% strongly agreed or agreed with the statement while some 28% strongly disagreed or disagreed with it[228]. The remaining 36% of respondents were neutral on the issue. By age group, fewer respondents aged 15-24 years old agreed with the statement, compared with those from the older age groups. Only 25% from the age group strongly agreed or agreed with the statement, followed by 35% who were neutral and 40% who strongly disagreed or disagreed with it. Among those aged 50 years and above, 41% agreed that the removal of the law would be detrimental to the Singapore family unit. About 33% of the respondents in the age group were neutral on the statement and 26% strongly disagreed or disagreed with it.
Over three in 10 Singapore residents agreed that the absence of a law criminalising sex between women was harmful to society[229]. Of the other respondents, about 26% strongly disagreed or disagreed with the statement, while 41% were neutral. Among the respondents by gender, more males strongly agreed or agreed with the statement at 35%, compared with 32% of females. The proportions of males and females who were neutral on the statement were 40 and 41%, respectively. The proportions of males and females who strong disagreed or disagreed with the statement were 25 and 27%, respectively. The proportions of respondents who strongly agreed or agreed with the statement were somewhat consistent across all age groups: 31% (15-24 years old), 35% (25-34 years old), 31% (35-49 years old) and 35% (50 years old and above). Among those who strongly disagreed or disagreed with the statement, the proportions were 34% (15-24 years old), 27% (25-34 years old), 24% (35-49 years old) and 25% (50 years old and above). The proportions who were neutral were 34% (15-24 years old), 38% (25-34 years old), 45% (35-49 years old) and 41% (50 years old and above).
More than half of Singapore residents strongly agreed or agreed that religious views and opinions should not influence Singapore’s laws[230]. Of the other respondents, about 20% strongly disagreed or disagreed with the statement, while 29% were neutral. By age group, the biggest proportion of respondents who strongly agreed or agreed with the statement was 54% among those who were 50 years old and above, followed by 52% (15-24 years old), 49% (25-34 years old) and 47% (35-49 years old). Among those who strongly disagreed or disagreed with the statement, the proportions were 25% (15-24 years old), 20% (25-34 years old), 17% (35-49 years old) and 21% (50 years old and above). The proportions who were neutral were 23% (15-24 years old), 31% (25-34 years old), 36% (35-49 years old) and 25% (50 years old and above). By gender, more males strongly agreed or agreed with the statement at 52%, compared with 49% of females. The proportions of males and females who were neutral on the statement were 28 and 31%, respectively. The proportions of males and females who strong disagreed or disagreed with the statement were the same at 20%.
Another question posed was: “Singapore should keep Section 377A even if it is not enforced. Do you agree?” Of the 1,000 respondents, 42% strongly agreed or agreed with the statement, with 19% strongly disagreeing or disagreeing[231]. The remaining 40% expressed a neutral stance on the issue. The results were largely consistent across male and female respondents. The proportions of male and female respondents who strongly agreed or agreed with the statement were 41% and 42%, respectively. The proportions of males and females who strongly disagreed or disagreed with the statement were 21 and 17%, respectively, while the remaining 38% of males and 41% of females were neutral on the issue. By age group, fewer respondents aged 15-24 years old strongly agreed or agreed with the statement, compared with those from the older age groups. Only 28% from the age group strongly agreed or agreed with the statement, compared with 41% (25-34 years old), 38% (35-49 years old) and 48% (50 years old and above). Among those who strongly disagreed or disagreed with the statement, the proportions were 27% (15-24 years old), 22% (25-34 years old), 19% (35-49 years old) and 15% (50 years old and above). The proportions who were neutral were 45% (15-24 years old), 38% (25-34 years old), 43% (35-49 years old) and 37% (50 years old and above).
Johnson Ong files fresh constitutional challenge[edit | edit source]
On Monday, 10 September 2018, barely 4 days after the historic striking down of Section 377 of the Indian Penal Code, then 43-year old internationally renowned disc jockey, producer and owner of a digital marketing agency Johnson Ong Ming, who went by the stage name of DJ Big Kid, filed a challenge with the High Court against Section 377A, arguing that the law was unconstitutional[232],[233]. Ong was represented by lawyers Eugene Thuraisingam and Suang Wijaya who acted pro bono. The Attorney-General was listed as the defendant and a pre-trial conference was fixed for 25 September 2018.
In his filing, Ong, who was in a relationship with a male partner for more than a year, said he was aware of the ruling in October 2014 that rejected the constitutional challenge filed by Tan Eng Hong and gay couple Gary Lim and Kenneth Chee but argued the court should depart from that precedent given international judicial developments since then, including the recent Indian Supreme Court judgment. He was also relying on a 2015 report by the United States Substance Abuse and Mental Health Services Administration (SAMHSA)which argued that "sexual orientation is unchangeable or suppressible at unacceptable personal cost". Ong also pointed out that Section 377A targeted only gay men and not gay women, and therefore contravened the right to equality enshrined in Article 12 of the Constitution.
On Wednesday, 12 September 2018, Ong responded to queries from TODAY newspaper via email, saying that he believed repealing the section would put an end to the "online assaults, vitriol and abuse" against the LGBTQ community[234],[235]. He felt “energised” by the news of India’s ruling and decided to “take up” Prof Koh’s challenge. Ong's lawyers intended to adduce expert evidence which included proof that same-gender sexual orientation (including identity, behaviour, and attraction) and variations in gender identity and gender expression were “a part of the normal spectrum of human diversity and do not constitute a mental disorder”. If established that sexual orientation was unchangeable or not suppressible, they would argue that the criminalisation of consensual sex was a violation of human dignity and breached Article 9(1) of the Constitution, which stated: “No one shall be deprived of life and personal liberty save in accordance with law”. However, the court previously held that Section 377A did not contradict Article 9 as the phrase “life and liberty” was only to be used in reference to the protection of the personal liberty of a person from unlawful incarceration, and not to the right of privacy and autonomy in personal relationships. The lawyers additionally planned to argue that there had been many changes and legal developments around the world since the previous challenge was struck out, citing cases in the United States, Belize, Taiwan, Hong Kong and India[236],[237].
Ong, who was a Pink Dot 2010 ambassador[238],[239], also chose to mount the court challenge as LGBTQ groups were "not allowed to organise" and "don't see ourselves represented positively on mainstream media, if at all[240],[241]. "Without access to help and resources, navigating through life is a lonely and often stressful process for every LGBT Singaporean," he said. "Most importantly, I am not a criminal and I do not want to go through life being branded as one by my own country. It takes a psychological toll on you going through life thinking you are less than everyone else."[242]
Ong added: “I feel the current sentiment is that we have for decades silently suffered through enough discrimination at our workplaces, in our communities and within our own families, and not so recently, by conservatives, and religious organisations.” While he expected a “public backlash even to my own personal detriment” following his move, he reiterated that he was unperturbed and “ready for it”. He was “hopeful” and felt that he stood a good chance this time round. He explained that a successful court challenge would be "a monumental moment for not just the LGBTQ community but for all Singaporeans because gay rights, like women’s rights, like any subjugated minority rights, are human rights"[243],[244].
Another round of keep/repeal 377A petitions[edit | edit source]
Please Keep Penal Code 377A in Singapore[edit | edit source]
On 10 September 2018, an individual who published his name as Paul P. organised a petition to the Government on Change.org entitled, "Please Keep Penal Code 377A in Singapore"[245]. It was aimed at Singaporeans, who, like himself, believed that "the vocal minority" should not "impose their values and practices on the silent majority who are still largely conservative," and that marriage should only still be "an acceptable norm between a man and a woman". By the time of the petition's closure on 24 September 2018, it had garnered 108,917 signatures. Critics of the petition noted that most of the signatories supported keeping Section 377A on religious grounds, citing holy books and sacred texts on why they did not want LGBTQ lifestyles to be accepted. While well within their right to express their beliefs, a glimpse through all the submitted comments prompted the casual reader to seriously question their line of thought[246]. The online platform also allowed anyone to sign as many times as they wanted, was easy for bots to infiltrate/populate, did not collect relevant data, and did not distinguish foreigners from Singaporeans/PRs[247].[248]. Members from the anti-gay camp also individually wrote letters to Law Minister K Shanmugam and MPs in their constituency[249]. In late September 2019, a document was circulated online arguing for the retention of Section 377A[dotcom/document/d/1-1GlL_srJsdaxlQaboPYc0f-9YwNVoH348D-SLfNchs/mobilebasic],[250].
Ready4Repeal[edit | edit source]
- Main article: Ready4Repeal
Ready4Repeal is an online movement and petition for the repeal of Section 377A of the Singapore Penal Code. It was started in early September 2018 by Glen Goei and Johannes Hadi because Section 377A was being excluded yet again from the Penal Code Review to be held in 2019, and the founders of the movement did not want the LGBTQ+ community to be left behind. To date, it has garnered 50,495 signatures. The lead signatories are Professor Tommy Koh, Professor Kishore Mahbubani, Professor Walter Woon, Ho Kwon Ping, Claire Chiang, Hsieh Fu Hua, Theresa Foo & Harold Foo, Professor Tan Tai Yong and others.
Another petition by Gabriel Tang-Rafferty addressed to the Government chalked up 17,610 signatures out of the targeted 25,000 as of 12 September 2018.
Walter Woon in favour of repealing 377A because of "constitutional problem"[edit | edit source]
During the 12th NUS Tembusu Forum entitled "Are Human Rights Truly Universal?", which lasted two hours and was attended by about 250 students, held on the night of Tuesday, 18 September 2018, National University of Singapore (NUS) law professor Walter Woon, a former Attorney-General, said he was in favour of repealing Section 377A because of what he saw as a "constitutional problem"[251],[252]. The Government had said that the law would not be proactively enforced but Woon cited Section 35(8) of the Constitution to make the point that the powers to prosecute lay with the Attorney-General. Section 35(8) states[253]:
"The Attorney‑General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for any offence."
He said: "So we have a very dangerous precedent here where the political authorities are saying to the Public Prosecutor, who is supposed to be independent, there are some laws that you don't enforce. I find that very uncomfortable." He added that that homosexual sex was "absolutely impossible to prove" as a practical matter. "As a matter of principle, if these are consenting adults, why should it carry a jail term?" While considered a sin by certain religions, it could be accorded similar treatment to adultery and fornication, which are not crimes under the law, he elaborated, saying: "If it is a sin, it is between you and God."
NUS Centre for International Law chairman Prof Tommy Koh agreed that the provision should in principle be done without, but said abolishing it was "not so simple" given a potential political pushback. A majority of Singaporeans were against a repeal going by opinion polls, he pointed out. "The compromise is a law in the book, but Singapore will not enforce that law," he explained, adding that the Government's difficulty in balancing opposing opinions "should not be underestimated".
V.K. Rajah: "Section 377A: An impotent anachronism"[edit | edit source]
- Main article: Archive of The Straits Times article, "Section 377A: An impotent anachronism", 30 September 2018
On 30 September 2018, V.K. Rajah, who was Attorney-General from 2014 to 2017, who had been a judge on the Supreme Court and Court of Appeal, and who was one of the three judges who delivered the landmark ruling on Tan Eng Hong's constitutional challenge in 2012 (see above), penned an op-ed article for The Sunday Times entitled, "Section 377A: An impotent anachronism"[254]. In it, he argued for the decriminalisation of private sexual acts between males.
AG Lucien Wong: Government has not removed prosecutorial discretion for 377A[edit | edit source]
- See also: Prosecutorial discretion in Singapore
On Tuesday, 2 October 2018, Attorney-General Lucien Wong said that the Government had not removed or restricted prosecutorial discretion for Section 377A, noting that former AGs, Professor Walter Woon and V. K. Rajah, "have recently suggested that it is not desirable for the Government and Parliament to direct the public prosecutor (PP) not to prosecute offences under Section 377A of the Penal Code, or to create the perception that they are doing so[255]. Such comments may give rise to the inaccurate impression that the exercise of the PP's discretion has been removed or restricted in respect of Section 377A. Where the Police conducts investigations into an offence under Section 377A, the Police will decide whether or not there is sufficient basis to refer the case to the PP. It will then be for the PP to determine whether to prosecute. In doing so, the PP exercises his independent discretion on whether to charge the offender, solely on the basis of his assessment of the facts, the law, and the public interest. While the PP is entitled to consider public policies in exercising his discretion, these do not fetter the exercise of prosecutorial discretion.
He also noted that "the Government's position on Section 377A is that the Police will not proactively enforce this provision, for instance by conducting enforcement raids. However, if there are reports lodged by persons of offences under Section 377A, for example, where minors are exploited and abused, the Police will investigate." To illustrate this point, Wong cited an example of when, in 2008, then Deputy Prime Minister and Minister for Home Affairs Wong Kan Seng "explained that in the case of an offender who had been charged under Section 377A of the Penal Code, a police report was lodged by a 16-year-old male who had oral sex with the suspect". The police referred the case to the PP after completing investigations, and the PP "decided to charge the accused under Section 377A after taking into account all the facts and circumstances of the case, including the complainant's age and the fact that the offence had taken place in a public toilet".
V. K. Rajah's reply[edit | edit source]
On Friday, 5 October 2018, in response to AG Lucien Wong's statements, former AG V. K. Rajah penned the following opinion piece in The Straits Times[256]:
"Opinion piece reiterates prosecutorial discretion
I refer to the Straits Times report, "Government has not curbed public prosecutor's discretion for Section 377A: A-G Lucien Wong" (Oct 2).
Far from suggesting that the public prosecutor (PP) does not retain the sole discretion to prosecute, my Insight piece in The Sunday Times affirms and reiterates such prosecutorial discretion. And that is precisely why the present situation is so unsatisfactory.
Each new PP could very well take a different and subjective view of what circumstances merit prosecution.
In this connection, the following observations made by a current deputy attorney-general, Mr Hri Kumar Nair, on Oct 22, 2007 (in Parliament, while he was an MP), are both prescient and pertinent:
"...it is unclear what the current legal position is.
"...Does it mean that the police will not act on complaints or that suspects may be investigated but ultimately not arrested or prosecuted? Or is it the case that the Attorney-General (A-G), who has prosecutorial discretion, may prosecute some but not all offenders?
"That puts the A-G in a difficult position because selective prosecution will give rise to more issues. But if the intention is not to do anything at all, then what is the purpose of having the law? Does it not hurt our credibility that we have laws that are toothless?
"...in the long run, making some conduct criminal under our Penal Code whilst stating that the law will not be enforced, simply invites attacks on the integrity of the code."
As for the 2008 case referred to in the Attorney-General's Chambers statement, it is important to point out that the offending conduct in question occurred in September 2007, before parliamentary debates started. Further, the charge was not pursued although taken into consideration.
Reference might usefully be made to the 2010 case against Mr Tan Eng Hong. Mr Tan and his co-offender were initially charged under Section 377A, but the charges were withdrawn and substituted with different offences shortly after Mr Tan filed a challenge against the constitutionality of 377A.
As far as I am aware, these are the only instances when Section 377A was invoked after the 2007 parliamentary debates.
On Sept 8 this year, chief of government communications Janadas Devan made the following statement in his Facebook page: "But the Government does not and will not enforce 377A." This illustrates how ambiguous the present enforcement situation is."
AG Lucien Wong's reply[edit | edit source]
The following day, on 6 October 2018, AG Lucien Wong penned the following opinion piece in The Straits Times[257]:
"Public prosecutor's stand on Section 377A consistent
Mr V. K. Rajah's letter states that: "Far from suggesting that the public prosecutor (PP) does not retain the sole discretion to prosecute, my Insight piece in The Sunday Times affirms and reiterates such prosecutorial discretion." (Opinion piece reiterates prosecutorial discretion; Oct 5).
In his Insight piece, Mr Rajah had said that: "Selective enforcement of laws undermines the rule of law, creating perceptions that prosecutions can be directed by the Government or pursued on non-legal grounds."
The purpose of my statement on Tuesday was to dispel any such perception by making it clear that where the police refer cases under Section 377A of the Penal Code to the PP, the PP exercises his discretion on whether to charge the offender and for what offence, based on his assessment of the facts, the law and the public interest.
In his letter, Mr Rajah himself affirms and reiterates this.
Mr Rajah will also agree that the PP is able to exercise such discretion without any interference.
I had also highlighted a 2008 case which illustrates the Government's and the prosecution's respective longstanding approaches to Section 377A cases.
Mr Rajah suggests that this case may not be relevant as the offending conduct occurred in September 2007, before the parliamentary debate on Section 377A.
However, the Government's position that the police will not proactively enforce Section 377A with respect to private acts had been made public since at least 2006.
When the Ministry of Home Affairs launched the public consultation on proposed amendments to the Penal Code, The Straits Times reported that: "While it is still technically illegal for men to have sex with other men, the ministry reiterated that it will not be proactive in enforcing this law against consensual acts that take place in private." (Law on 'unnatural' sex acts to be repealed; Nov 9, 2006).
The PP has consistently taken the position that, absent other factors, prosecution under Section 377A would not be in the public interest where the conduct was between two consenting adults in a private place.
This was the case when Mr Rajah was the PP and remains so today.
Bryan Choong files constitutional challenge[edit | edit source]
In November 2018, LGBT rights advocate Choong Chee Hong, better known as Bryan Choong, filed a case in the Supreme Court against the Attorney-General, stating that Section 377A was "inconsistent" with portions of the Constitution, and "is therefore void"[258].
Choong, then 41 years of age, was the former executive director of Oogachaga, a non-profit organisation working with the LGBT community. According to court documents, Choong stated that Section 377A was inconsistent with Article 9 of the Constitution, which states: "No person shall be deprived of his life or personal liberty save in accordance with law." The two other portions deemed "inconsistent" were: Article 12, which states that all persons are equal before the law and entitled to its equal protection; and Article 14, which states that every citizen of Singapore has the right to freedom of speech and expression. Article 14 also states that all citizens of Singapore "have the right to assemble peaceably and without arms" and have the "right to form associations".
Choong, who declined to be interviewed by the media, was represented by Senior Counsel Harpreet Singh Nehal from Cavenagh Law, as well as a team from Peter Low and Choo law firm comprising lawyers Remy Choo Zheng Xi, Priscilla Chia Wen Qi and Wong Thai Yong. Responding to queries from The Straits Times, the
Attorney-General’s Chambers (AGC) said it had received the papers and was studying them. The AGC spokesman added: "We are unable to comment further as the matter is now before the courts."
Chan Sek Keong analyses rulings on constitutionality of 377A[edit | edit source]
On Wednesday, 20 February 2019, the NUS Faculty of Law's Centre for Asian Legal Studies organised a seminar entitled, "The Criminal Law on Morality and Constitutional Equality: The Road Not Taken". It lasted from 3:00pm to 4:00pm and was held at the Moot Court at NUS' Bukit Timah Campus. The speaker was Distinguished Fellow Chan Sek Keong, former Chief Justice of the Supreme Court of Singapore and the chairperson was Adjunct Professor Kevin Tan of the NUS' Law Faculty. In 2015, the Court of Appeal dismissed the appeals of Tan Eng Hong and Lim Meng Suang and upheld the constitutionality of Section 377A. The Court of Appeal applied the reasonable classification test and held that by inserting this then-new provision into the Penal Code, the Straits Settlements Legislative Council had intentionally targeted male homosexuals, and that so long as all male homosexuals were treated alike, there was no discrimination within the meaning of Article 12(1) of the Constitution. In the talk, Chan analysed both decisions of the High Court and of the Court of Appeal and proposed an alternative but legally and constitutionally coherent reading of the law. Many in the audience, which comprised mainly NUS law undergraduates although there were also academic and practising lawyers present, made detailed notes of Chan's lecture. These notes would later be shared with other human rights lawyers who felt that Chan's expert legal opinion and arguments could be used in a new challenge against the constitutionality of Section 377A.
Paper published[edit | edit source]
8 months later, on Monday, 14 October 2019, Chan published an official 72-page academic paper based on his talk on e-First, the online prior-to-print publishing module of the Singapore Academy of Law Journal. It was entitled, “Equal justice under the constitution and Section 377A of the Penal Code - The Roads Not Taken”[259], [260],[261].
The following were the paper's conclusions:
- Section 377A was not intended to cover penetrative sex, that is, anal or oral sex, when it was enacted in 1938 as the same offences had already been covered by Section 377 since 1872. Section 377A covers only non-penetrative sex, such as masturbation and other kinds of sexual touching and “lewd” acts.
- In so far as the Courts have decided that Section 377A does not violate the fundamental rights of equality before the law and equal protection of the law on the basis that Section 377A covers penetrative sex, the decisions are not binding on lower courts as being given per incuriam.
- If so, it is open to an applicant or defendant in a new action or prosecution to contend that Section 377A violates Article 12(1) of the Constitution on the ground that it unreasonably or arbitrarily discriminates against male homosexuals in respect of acts of gross indecency of a non-penetrative nature.
- If Section 377A had been enacted to criminalise penetrative sex covered under Section 377, it would have the effect of impliedly repealing the same offences in Section 377. If Section 377A had impliedly repealed those offences in Section 377 in 1938, those offences criminalised by Section 377A would have been impliedly repealed by Section 376(1)(a) in 2007 to the extent of their inconsistency, that is, with respect to consensual penetrative sex between males.
- Under Section 376(1)(a), consensual penetrative sex between males in private is no longer criminalised as an unnatural offence (because Section 377 has been repealed) but is punishable under Section 20 of the Minor Offences Act or Section 294(a) of the Penal Code, if performed in public.
- The legislative purpose or object of Section 377A determined at the time of its enactment in 1938 will always remain the same thereafter. Accordingly, the retention of Section 377A by Parliament in 2007 does not affirm or reaffirm its 1938 purpose.
- Section 377A was enacted for the purpose of dealing with the mischief of male prostitution and its associate activities (which involved male homosexual conduct) which were rife in 1938, and not because male homosexual conduct was not acceptable in Singapore society in 1938.
- The purpose of Section 377A as described above ceased to exist or was no longer valid in 2007 or 2013, or there was no evidence that similar conditions existed in 2007 or 2013. Accordingly, the legislative classification (or differentia) would no longer be reasonable and would not have rational relation to the purpose of Section 377A (having ceased to exist). Section 377A therefore cannot satisfy the requirements of the reasonable classification test and therefore violates Article 12(1).
- Section 377A, being a pre-constitution law, cannot be declared void for unconstitutionality because Article 162 requires any existing law to be construed to conform to the Constitution. Accordingly, the court has to interpret Section 377A by reading it to have a meaning that does not violate the Constitution. How Section 377A should be construed (or read) to conform to the Constitution depends on the nature of its inconsistency with Article 12(1).
- If the purpose of Section 377A has ceased to exist in 2007 or 2013, Section 377A may be construed to conform to the Constitution by reading it as a gender-neutral provision that criminalises non-penetrative sex of gross indecency committed in public.
PM Lee Hsien Loong: 377A will be around "for some time"[edit | edit source]
On Wednesday, 26 June 2019, Prime Minister Lee Hsien Loong took questions from the audience after his speech at the Smart Nation Summit held at the Marina Bay Sands. When asked by an unidentified member of the audience how Singapore's regulations could be made more diverse to attract tech talent, including those with other sexual orientations, Lee replied that Section 377A "will be around for some time" but it would not hinder the country's efforts to attract tech talent[262],[263].
On the issue of inclusiveness, Lee said that Singapore had been open to the LGBT community. “You know our rules in Singapore. Whatever your sexual orientation, you are welcome to come and work in Singapore,” he said. “But this has not inhibited people from living, and has not stopped Pink Dot from having a gathering every year. It is the way this society is: We are not like San Francisco, neither are we like some countries in the Middle East. (We are) something in between, it is the way the society is.” Such a “framework” would not hinder the technology scene here, added Lee. The Pink Dot event was set to take place that very weekend, on Saturday, 29 June 2019.
Pink Dot 2019 changes light-up message from "TOGETHER" to "REPEAL 377A"[edit | edit source]
Upset that PM Lee Hsien Loong had used Pink Dot as a showcase of how his government was accepting of the LGBT community while at the same time still refusing to repeal Section 377A, the organisers of Pink Dot 2019, who had made discrimination against LGBT people in Singapore their theme for the year, made a last-minute change of their climactic light-up message from "TOGETHER" to "REPEAL 377A". The tone of the event was also dramatically changed for the very first time in the group's 11-year history from one of docility to one of protest.
Roy Tan files constitutional challenge[edit | edit source]
On Friday, 20 September 2019, then 61-year old retired GP and long-time LGBT activist Roy Tan filed a new constitutional challenge in the High Court. He was represented by lawyer M Ravi who had joined Carson Law Chambers. The Attorney-General (AG) was listed as the defendant.
According to Tan, his challenge was based on "novel arguments". For example, the Public Prosecutor had discretion on whether or not to prosecute an accused person under Section 377A and the Government had said that the law would not be enforced against acts done in private. This was incongruous with Section 14 of the Criminal Procedure Code, which requires the police to unconditionally investigate all complaints of suspected arrestable offences. "This subjects gay men to the potential distress of an investigation into private conduct where they have a legitimate expectation that the state will decline to prosecute. It represents not only a contradiction between the Public Prosecutor's prosecutorial discretion and the non-discretionary carriage of criminal justice on the ground but is also a restriction on their personal liberty, which is not consistent with Article 9(1) of the Constitution."
The case also sought to challenge the Court of Appeal's previous ruling in 2014 that Section 377A was constitutional. The 3-judge Court of Appeal had then rejected two separate challenges by Tan Eng Hong, who was also represented then by M Ravi, and a gay couple, Gary Lim and Kenneth Chee. The highest court in Singapore upheld Section 377A, rejecting arguments that the provision contravened the Constitution. The court held that Section 377A did not violate Article 9 as the phrase "life and liberty" referred only to the personal liberty of a person from unlawful incarceration and not to the right of privacy and personal autonomy.
As for Article 12, the court held that Section 377A passed a test used by the courts in determining whether a law complied with the constitutional right of equality. In Singapore, the courts had used the "reasonable classification test" to determine whether a statute that differentiated was consistent with Article 12. Under this test, a statute that differentiated was constitutional if the classification was based on an "intelligible differentia" – a discernible distinguishing feature shared by those who were treated differently – and if the differentia bore a rational relation to the objective of the law. The court held in 2014 that the classification prescribed by Section 377A - men who performed acts of gross indecency with other men - was based on an intelligible differentia.
The court also ruled that Section 377A fell outside the scope of Article 12, which forbids discrimination of citizens on grounds including religion, race and place of birth. The court observed that Article 12 did not contain the words "gender", "sex" and "sexual orientation", which related to Section 377A. Tan felt that the court had erred in ruling that Section 377A passed the test and disputed that the law was based on an intelligible differentia. He said acts of "gross indecency" may take place between men only, women only and a mix of men and women, but "such acts cannot be meaningfully distinguished across the three classes". "However, Section 377A only proscribes acts between males. There is therefore no intelligible differentia as Section 377A was intended to proscribe acts of gross indecency,” he added.
Tan's application was widely reported in the local[264],[265],[266],[267],[268] as well as international media[269],[270],[271],[272],[273],[274],[275].
During the pre-trial conference held on 8 October 2019, the court informed M Ravi that Tan's case, as well as the other two challenges filed in 2018 by Johnson Ong Ming and Bryan Choong were scheduled to be heard in chambers on 13, 15, 18, 20, 21 and 22 November 2019[276],[277],[278]. All three cases would be heard in the presence of all the lawyers arguing for their respective plaintiffs on each of the dates. Tan said: "The court may ask questions directed at the lawyers of the other cases while they are all in the courtroom at the same time."
Yale-NUS talk on striking down of India's Section 377[edit | edit source]
On 11 November 2019, Yale-NUS organised a talk by Indian lawyer Menaka Guruswamy entitled, "Litigating freedom: the battle to overturn India's Penal Code 377". An anti-LGBT petition addressed to the Government was rustled up by someone with the name of Esther Lee on CitizenGo. It carried the heading, "Say NO to YALE-NUS Event Titled "LITIGATING FREEDOM...” Using Foreigners To Influence Our Nation’s Court Of Law!" and garnered over 10,000 signatures[279],[280].
Commenting on Facebook the same day that the talk was held, Law Minister K Shanmugam wrote:
"Several people have written to me, objecting to a talk to be given by Dr Menaka Guruswamy, today. The talk is organized by Yale-NUS College. She is slated to speak on what happened in the Indian courts, on s377. There is also a Petition asking the Government to stop her talk.
The main objection appears to be that legal challenges to s377A are about to be heard in Court, and this talk could be sub judice.
I don’t see a significant risk of sub judice. Dr Guruswamy is a Senior Advocate of the Supreme Court of India. One may agree or disagree with her views, but I am sure she knows about rules relating to sub judice; and I don’t see an objection to her speaking about the law, and what happened in the Indian Supreme Court, where their s377 was successfully challenged."
Bryan Choong's challenge[edit | edit source]
At 2:30pm on Wednesday, 13 November 2019, in a High Court hearing held in chambers, Justice See Kee Oon presided over the constitutional challenge of Choong Chee Hong, better known as Bryan Choong. Choong's court submissions adduced fresh evidence using documents from the United Kingdom’s National Archives that were only recently declassified between 2014 and 2016[281],[282]. The newly surfaced historical files were argued as being vital in proving that Section 377A was meant to target commercial sex rather than to criminalise all consensual gay sex between men.
In their court filing, Choong’s lawyers - Senior Counsel Harpreet Nehal Singh of Audent Chambers, Remy Choo Zheng Xi, Priscilla Chia and Wong Thai Yong of Peter Low & Choo, and Jordan Tan of Cavenagh Law - argued that a 1940 report which was declassified in 2016 showed that the enactment of Section 377A by the British colonial legislature was in response to an “outbreak” of male prostitution in Malaya at the beginning of 1938. The report was addressed to George Gater, who held the title of Permanent Under-Secretary of State for the Colonies and made it “crystal clear” that there was a relationship between the two phenomena. The report detailed two cases in 1938, the year the law was enacted. The first, which took place three months before Section 377A came into effect, involved a colonial official named Reeves who was suspected of having relations with male prostitutes but was not charged initially as there was no proof. The second event involved another official, Rivaz, who was sacked as the charges, similar to those made against Reeves, were justified following the enactment of Section 377A. Choong’s lawyers also cited another case referencing a document dated 24 March 1938, which was declassified in 2014, in which a European warder of the Straits Settlements Prisons, Moses, resigned after being caught in January 1938 attempting to sodomise two male prostitutes. This document was a communication from Sir Thomas Shenton, governor and high commissioner of the Straits Settlements, to the secretary of state for the colonies. The lawyers argued that there was a “problem within the civil service of civil servants patronising male prostitutes” and that this gave rise to the law.
The legal team was building on arguments by gay couple Lim Meng Suang and Kenneth Chee whose challenge was rejected by the Court of Appeal in 2014. The lawyers considered a 1937 annual crime report, also used by the couple, that noted a discovery of a “widespread existence of male prostitution” in the British colony during the 1930s. The Court of Appeal in its 2014 ruling considered the possibility that Section 377A could have been enacted with the specific purpose of criminalising male prostitution, but ruled otherwise due to a lack of evidence. The court stated instead that the law was for “general application”. In their submissions, the lawyers said if the court held that the effect of Section 377A was not limited to commercial sex between men, the law would then be inconsistent with Article 12(1) of the Singapore Constitution, which states that all persons are equal before the law. They argued that the purpose of Section 377A, which was to criminalise male prostitution, did not match its current effects, and criminalises gay acts more generally. This way, the effect of Section 377A would be deemed “overly broad” and therefore, unconstitutional. The lawyers said: “It would be extraordinary to conclude in the face of the above evidence, in conjunction with the fresh documents, that the legislative purpose of 377A was anything other than (for the purposes of combatting male prostitution).” The legal significance of this conclusion, they said, is that if the purpose of Section 377A was to criminalise male prostitution only, then applying it to criminalise all homosexuals had gone overboard. “Should the analysis be any different just because the rights of a minority of the population (gay and bisexual men) are being trampled upon to further a narrow legislative purpose, which is to target male prostitution?” the lawyers asked.
The lawyers also floated a second argument that the colonial era rule was inconsistent with Article 14 of the Singapore Constitution, which protects the rights of all adults to freedom of expression through private consensual acts of sexual intimacy. They argued that Section 377A prohibited the right of “one class of adult citizens” – homosexual men – from expressing consensual acts of sexual intimacy. Describing the reach of the law as “absolute and categorical”, they said it had extended into the “privacy of one’s home and even long term, committed relationships”. Yet another part of their submissions argued that Section 377A was inconsistent with Article 12 of the Singapore Constitution, which states that all persons are equal before the law and are entitled to the equal protection of the law, and therefore unconstitutional. The lawyers questioned: “What would be the purpose of Article 12 if it only protected discrimination against the majority and not discrimination against the minority?”
Choong’s affidavit stated that the legal application was made because he believed that the right to equal protection under the Constitution could not just protect the personal intimacies and choices of some Singaporeans but not those of others. “What is at stake here goes to the very right of individuals like me, to define our humanity and to live this one life we each have in a way that is authentic and true to who we are,” he said. “Just as heterosexual couples have an interest in consensual intimacy, so, too, do adult gay couples.” Asserting that the original legislative purpose of Section 377A is “obscure and extremely cryptic”, he said: “The only ex post facto justification of Section 377A appears to be to send a message through the criminal law that the private intimate conduct of people like me is frowned upon by certain segments of our citizens. “There appears to be no other reason behind Section 377A.” He added: “Section 377A sends the message that gay men like me and many others are second-class citizens and lawbreakers, and this in turn adds to discrimination and misunderstanding throughout our society.” He also said that to say that there is nothing to fear because Section 377A will not be actively enforced is “not only inaccurate (gay men risk investigation), it adds insult to injury”. “It reinforces the fact that Section 377A serves no purpose but to discriminate against gay men,” he said.
Johnson Ong's challenge[edit | edit source]
The second case, that of disc jockey Johnson Ong, was heard at 10am on Monday, 18 November 2019 in the High Court and also presided over by Justice See Kee Oon. Ong's legal team, consisting of Eugene Thuraisingam, Suang Wijaya and Johannes Hadi of the Eugene Thuraisingam law firm, argued that Section 377A violated Article 9 of the Constitution guaranteeing the right to life and personal liberty, and Article 14 guaranteeing freedom of expression[283].
The lawyers presented expert evidence from six medical professionals to back up their claims, including three called by Ong and three called by the AGC. Those called by Ong were British psychiatrist Dinesh Bhugra, a professor of mental health and diversity at the Institute of Psychiatry at King's College London; Dr Jacob Rajesh, a senior consultant psychiatrist at the Promises Clinic in Novena Medical Centre; and American public health and epidemiology professor Chris Beyrer of the Johns Hopkins Bloomberg School of Public Health. Those called by the AGC were Dr Cai Yiming, an emeritus consultant in the Department of Developmental Psychiatry at the Institute of Mental Health; retired geneticist John Tay Sin Hock, who was the former Head of Division of Human Genetics at the National University of Singapore; and Dr Derrick Heng Mok Kwee, group director of the Public Health Group in the Ministry of Health.
The experts on both sides largely agreed that sexual orientation could not be wilfully changed and that biological factors such as one's genes and non-social environmental factors such as exposure to different levels of hormones in the womb were contributors to one's sexual orientation. There was also no credible scientific evidence that "therapy" aimed at changing sexual orientation, such as reparative or conversion therapy, was safe or effective, they added.
But the experts differed on whether choice and social environmental factors like culture played a role in determining sexual orientation. Dr Cai said there is "very little we can scientifically conclude about whether there is choice in sexual orientation". Dr Tay said that genetics may play some part in determining sexual orientation but are not the sole cause of it, suggesting that culture plays a role as well. Ong's lawyers contended that the scientific literature cited by Dr Cai contradicted his conclusion. They also argued that Dr Tay did not cite any evidence to support his conclusion that cultural factors play such a role.
"It is absurd, irrational and discriminatory to criminalise a person on the basis of his natural, unchangeable identity and for non-harmful private acts," the team said in a statement to the media summarising their arguments. The lawyers noted that their case differed from a previous case brought against Section 377A in 2010 by Tan Eng Hong, whose lawyer had argued that there was overwhelming evidence that a person's sexual orientation was biologically determined. Tan had provided the court with statements from medical and scientific bodies which were not formally entered as evidence, they said. "For the first time, there is expert evidence before the courts on the nature of sexual orientation. In the previous cases, the court was only asked to take judicial notice of scientific facts which required a different legal test," the lawyers said in their statement.
Roy Tan's challenge[edit | edit source]
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The third case, brought by LGBT activist and retired general practitioner Tan Seng Kee, better known as Roy Tan, was also heard on Monday, 18 November 2019 in the High Court[284]. Representing Dr Tan was human rights lawyer M Ravi who addressed the court on their arguments which centred on the incongruence between Parliament's decision not to proactively enforce Section 377A on the one hand, and important sections of the Criminal Procedure Code and the Penal Code on the other, and how this contravened Article 9(1) of the Constitution which states “No person shall be deprived of his life or personal liberty save in accordance with law”[285],[286].
Section 424 of the Criminal Procedure Code[edit | edit source]
One of Ravi's arguments was that the policy of non-proactive enforcement of Section 377A rendered the statute arbitrary in a way that it no longer constituted "law" within the meaning of Article 9(1), thereby making it unconstitutional. Ravi highlighted Section 424 of the Criminal Procedure Code (Duty to give information of certain matters) which states that the commission of such acts as mentioned under Section 377A, the intention to commit, or the knowledge of commission of such acts by others must be reported to the police. Failure to do so was punishable by up to 6 months' imprisonment or a fine of up to $3,000 as specified under Section 176 of the Penal Code (Omission to give notice or information to a public servant by a person legally bound to give such notice or information). Ravi argued that retaining Section 377A therefore doubly criminalised gay and bisexual men - on the first level, for committing acts prohibited under Section 377A and on the second level, for not reporting those acts to the authorities. As such, Section 377A, when read with Section 424 of the CPC and Section 176 of the Penal Code, infringed on the right of these men to life and liberty afforded to them under Article 9(1) of the Constitution. The lawyer also argued that Section 424 of the Criminal Procedure Code was another uncertain and inconsistent aspect of the enforcement of Section 377A since people might not be aware whether a failure to report such acts, given the Attorney-General’s non-prosecution policy, constituted a reasonable excuse not to do so. Furthermore, Ravi argued that Section 424 obliged gay and bisexual men to report their sexual activities or intentions to the police while also imposing an obligation on their friends, families, and even neighbours to do the same. He said: “This leads to an absurd and arbitrary application of Section 424 on openly gay and bisexual men as it may subject them to surveillance by their acquaintances as well as to the humiliating and degrading acts of enforcement mandated by the law.”
On the matter of obligating health professionals to report patients who violate Section 377A as well, Ravi argued that while an affidavit filed by Dr Derrick Heng on behalf of the AG asserted that the Ministry of Health “will not require its healthcare professionals to report patients to the police if they are aware that the patient has male sex partners, or even if the patient is HIV-positive,” this was also contrary to Section 424[287]. The latter rendered criminal the omission of healthcare professionals in the civil service to report their patients to the police if they were aware of the sexual acts of their gay or bisexual patients. In this regard, contrary to the AGC’s assertion, the healthcare professionals were faced with the spectre of prosecution.
In terms of the enforcement of Section 377A, Ravi said: “The discretion vested in the Attorney-General towards the non-prosecution of sexual conduct between consenting male adults in private needs to be considered against this statutory obligation imposed on the police to investigate complaints.” He added that the circumstances in which the private sexual conduct between two consenting men would be investigated or prosecuted were unpredictable and vague.
Section 119 of the Penal Code[edit | edit source]
The third prong of this argument was that Section 119 of the Penal Code (A public servant concealing a design to commit an offence which it is his duty to prevent) also made it an offence for public servants not to take action against those who might commit offences, including those outlined under Section 377A. In fact, it was the duty of a civil servant to prevent the commission of offences or risk being caught by Section 119. To illustrate this, the lawyer gave an example of a domestic worker reporting to the police that her male employer was having sex with a consenting adult male. In such a case, the police are mandated by law to prevent the offence from taking place. Failing to do so would result in a criminal penalty as outlined in Section 119 - "imprisonment for a term which may extend to one-half of the longest term provided for that offence, or with such fine as is provided for that offence, or with both". Ravi argued that based on the evidence that the police will never, in practice, investigate allegations of private consensual sexual activities between men, it followed that Section 377A was arbitrary since it had no practical effect on law enforcement or alleged aims behind the legislation. “Instead it only serves to identify gay and bisexual men as potential criminals and gives rise to fear that they may, one day, be prosecuted,” he said.
In his conclusion, Ravi said “A measure will not qualify as “law” where it is so absurd or arbitrary a nature that it could not have been contemplated by the framers of our constitution as being “law” when they crafted the constitutional provisions protecting fundamental liberties. By extension, a provision which occasions an approach to enforcement which is absurd or arbitrary may also infringe Article 9(1).”.
AGC's response[edit | edit source]
In presenting its arguments to Justice See Kee Oon on Wednesday, 20 November 2019 in response to the three challenges before the High Court, the Attorney-General’s Chambers said that the question of whether or not to repeal Section 377A was a deeply divisive socio-political issue that should be decided by Parliament, not the judiciary, noting that this was the same position adopted by the Court of Appeal in 2014[288],[289],[290]. In a 124-page written submission, the AGC noted that in 2014, the Court of Appeal had dismissed a similar challenge. It ruled then that the law, which criminalised acts of "gross indecency" between men, was consistent with the Constitution of Singapore. The AGC said in its submission that the High Court was bound to follow the decisions of the Court of Appeal, which was the highest court in Singapore, and should therefore dismiss the three recent cases. This was a key point presented by the AGC's lawyers, Deputy Chief Counsel Hui Choon Kuen, Deputy Senior State Counsels Denise Wong and Jeremy Yeo, and State Counsel Jamie Pang.
The AGC asserted that the role of the courts was to apply the law, not to determine social policy. It also noted that in other major jurisdictions such as Britain and Hong Kong where laws similar to Section 377A had been abolished, this was done by the legislature. A repeal of Section 377A would involve complex social and political considerations. These included religious sensitivities, conservative views on family and non-religious or non-traditional views that needed to be finely balanced. Parliament, which dealt with complex socio-political matters, was better placed to handle such issues compared to the judiciary, which was constrained by more restrictive procedures, the AGC said. It noted that the courts could only receive information that satisfied the rules of admission of evidence, but Parliament could consider information that did not, such as public sentiment. Parliament would also be able to implement "change management" if it decided to repeal the law, such as engaging relevant communities and their leaders to explain the rationale for the change and assuage any unfounded concerns.
Indian Supreme Court's decision irrelevant to Singapore[edit | edit source]
They argued that an Indian court’s decision to lift a ban on consensual gay sex in September 2018 was irrelevant to Singapore as the two countries took vastly different approaches to constitutional interpretation and review. Unlike the Indian courts, which recognised concepts such as “transformative constitutionalism”, the “progressive realisation of rights”, and the “doctrine of non-regression”, the Singapore courts did not view themselves as a driver of social change or transformation. And as the Singapore Constitution currently stood, there was no “free-standing” right to sexual freedom or privacy, so it could not be said that it was absurd and arbitrary to deprive homosexuals of their chosen form of sexual conduct. Also, concepts like privacy, human dignity and sexual identity could not be conferred the status of constitutional rights as they remained formless in Singapore versus “concrete rights” such as religion, free speech and freedom of movement, which were upheld with qualifications, within the context of larger interests such as public order and security.
“Unqualified rights inherently contradict a key tenet of our Constitution, which is that the interest of the larger community is placed over the interest of the individual,” they added. The Constitution also called it a violation only when laws discriminated against a citizen on grounds of religion, race, descent, or place of birth, they pointed out. The words “gender”, “sex” and “sexual orientation” were absent in this part of the Constitution, whereas the Indian Constitution expressly prohibited discrimination against any citizen on the grounds of sex. Renegotiating these areas was, anyway, out of the court’s reach, the state counsels stressed, as Parliament had the final say on the ambit of public order and morality. “It is Parliament, and not the courts, that should decide the deeply divisive socio-political issue of whether Singapore should continue to criminalise male homosexual sex acts,” they argued.
Against ex-Chief Justice's comments[edit | edit source]
The submissions also addressed the widely-discussed arguments of former Chief Justice Chan Sek Keong, although he was not an applicant. The state lawyers submitted that Chan's argument, that the original purpose of Section 377A was "impliedly repealed" when Section 377 was repealed in 2007, did not hold water. Section 377 covered penetrative sex acts "against the order of nature". In that same Bill that Parliament passed in 2007, Section 376 was added to criminalise non-consensual penetrative sex with a sub-section dealing with male-on-male acts of this type. “With all due respect, his argument is unconvincing,” the state counsels wrote. “It does not logically follow that just because a provision making non-consensual penetrative sex illegal is enacted, an earlier provision covering consensual penetrative sex is impliedly repealed.” They went on to note that Parliament proceeded on the basis that Section 377A covered penetrative sex acts and, after a debate, decided to retain it as a reflection of social morality concerning male homosexual sex acts. “How can we find that Parliament implied a result completely opposite to the result that Parliament expressly came to?” they said.
Disagreement on 377A's narrow purpose to fight male prostitution[edit | edit source]
Chan had also argued that the original purpose of Section 377A, when it was enacted in 1938, was meant to deal with a rising trend of male prostitution. This was a point advanced by Bryan Choong’s lawyers as well, who backed their argument with newly declassified documents from the United Kingdom’s National Archives. But the state counsels said Section 377A was listed under the heading “Unnatural Offences”, which suggested that its purpose was linked to the inherent quality of the acts it prohibited. Therefore, Section 377A should be seen to be for “general application”, and not that it was to serve a narrow purpose of combating male prostitution, they said. Making mention of Chan’s argument that Section 377A served no legitimate purpose since the prevailing policy was to not proactively enforce it, they added: “Section 377A is fully able to serve its purpose, which is to send a certain moral signal, by its mere existence regardless of whether and how it is enforced. This is a “common-sense argument.”
377A not as absurd as law banning left-handed people from using lifts[edit | edit source]
Regarding Johnson Ong’s arguments that Section 377A violated the Constitution as it was “absurd and arbitrary" to criminalise a person on the basis of his natural, unchangeable identity, the state counsels argued that a law could only be considered as such if it was regarded by “all reasonable persons as clearly absurd and arbitrary”. While a law that banned left-handed people from using lifts might qualify as absurd and arbitrary, “clearly, a law that prohibits male homosexual sex acts, in private or public, is not one that all reasonable persons in Singapore would think was absurd and arbitrary”, they said. Such an extremely high threshold was required to guard against judicial overreach and the collapse of the separation of powers between different organs of state, they added.
On Ong’s argument that homosexuality was inborn and immutable, they argued that it was clear that all experts consulted by him and the Government agreed that sexual orientation was the result of a complex interplay between biological and cultural factors. While genetics may play some part in determining sexual orientation, it was not the sole cause, they said, further noting that the state of scientific knowledge had not significantly progressed since 2014, when Section 377A was last challenged before the courts. They also argued that Section 377A was not to punish someone based on his mere existence, but targeted homosexual sex acts. Even Ong’s experts had acknowledged that a person experiencing homosexual attraction could voluntarily control whether to perform the act or not, they added.
Arguments against Roy Tan's position[edit | edit source]
In its statement to the media, the AGC also addressed Dr Roy Tan's lawyer, M Ravi's point that other laws such as Section 424 of the Criminal Procedure Code (CPC) made it legally obligatory for anyone to report those who violated Section 377A. This included gay men themselves, their friends or family members, and their medical care providers. Parliament's stance that Section 377A would not be proactively enforced led to "an inconsistent and arbitrary application of criminal procedure", Ravi had argued. It was also incongruent with the mandatory obligation under Section 424 of the CPC. The AGC responded in its statement: "The Attorney-General has already stated that where the conduct in question was between two consenting adults in a private place, the Public Prosecutor's position is that, absent other factors, prosecution under Section 377A would not be in the public interest. It would naturally follow from this position that any prosecution under other provisions which would contradict the non-prosecution position of Section 377A would likewise not be in the public interest."
Ravi had also argued that Section 377A was not consistent with parts of the Constitution addressing personal liberty, equal protection, and freedom of speech, assembly and association, so it should be considered void by virtue of Article 162 of the Constitution. Article 162 allowed for modifications, adaptations, qualifications or exceptions to be made to laws if they were not consistent with the Constitution, but the state counsels’ claim was that Section 377A conformed with the Constitution. The AGC's responded: “What the court does not have the power to do under Article 162 is to strike down the law, whether in whole or in part. The applicant was clearly asking the court to do something which it has no power to do.”
High Court dismisses all 3 actions[edit | edit source]
The High Court's verdict was delivered in chambers 4 months later, on Monday, 30 March 2020 at 3pm. Justice See Kee Oon dismissed the court action of all 3 men and initially announced that the full judgment would be delivered at a future date. However, it was eventually released only a few hours later[291],[292]. See said the decision by the Court of Appeal in 2014 remained binding[293],[294]. "I am unable to agree that there are cogent reasons for a Singapore court to be able to depart from binding decisions of the highest court in the land," he said in a 105-page written judgment. The High Court had reached the same conclusions as the Court of Appeal, even after taking into account new material put forth by the plaintiffs.
Regarding Johnson Ong's arguments that Section 377A criminalised gay men on the basis of their identity, Justice See said there was no comprehensive scientific consensus on whether a person's sexual orientation was immutable. The court was also not the appropriate forum to seek resolution of a scientific issue that remained controversial, he added. "Any controversy is best addressed by the relevant scientific community itself. Ultimately, the issue is an extra-legal one that does not come under the proper purview of the courts," he explained. He also noted that Section 377A criminalised homosexual acts and not a person's sexual orientation or identity in itself. "Hence, sexual orientation per se, or whether the male person in question identifies himself as bisexual, heterosexual or homosexual, is completely irrelevant," he pointed out. "A heterosexual male can equally be prosecuted under Section 377A if he commits such an offence."
Rejecting Bryan Choong's arguments that Section 377A was originally intended to curtail the spread of male prostitution, not consensual private sexual acts between men, and that the law was not intended to criminalise penetrative sex, which was covered under Section 377, a separate law that was repealed in 2007, Justice See said Section 377A was intended to safeguard public morals generally as well as enable enforcement and prosecution of all forms of gross indecency between men. He elaborated: "Section 377A is not limited to commercial sex between males. It is framed widely enough to cover all forms of male homosexual activity including penetrative and non-penetrative sex, whether in public or in private and with or without consent." He also noted that Section 377A did overlap with the now-defunct Section 377, but that there was "no exclusionary intent" to avoid this overlap when the laws were introduced. The Penal Code also contains "numerous examples of overlapping offences", he added.
Roy Tan had argued that it was "absurd and arbitrary" to allow the law to remain on Singapore's statutes given that the Government's official policy position was non-enforcement in respect of consensual homosexual acts in private between men. But Justice See noted that Tan had taken issue with the enforcement of Section 377A and not the constitutionality of the law itself. These issues were separate and distinct, he said, adding that the manner in which a provision was enforced, even if arbitrary, could not in itself render the provision unconstitutional. "The appropriate recourse in such a situation would be to seek administrative review, not constitutional review," he advised.
On Tuesday, 31 March 2020, all 3 plaintiffs announced that they would be appealing the High Court's ruling[295].
Roy Tan files High Court application for mandatory order compelling Cabinet to move parliamentary bill to repeal 377A[edit | edit source]
- See also: Remedies in Singapore administrative law
- See also: Remedies in Singapore constitutional law
On Tuesday, 1 December 2020, Roy Tan, filed an application in the High Court seeking a declaration that Section 377A was incongruent and inconsistent with Sections 119 and 176 of the Penal Code, Sections 17 and 424 of the Criminal Procedure Code, Section 9A (1) of the Interpretation Act and Articles 9(1) and 12(1) of the Constitution of Singapore[296],[297],[298],[299]. He also argued that the Attorney-General’s position - that it would naturally follow that any prosecution under other provisions which would contradict the non-prosecution stance for male homosexual adults indulging in consensual sex in private would likewise not be in the public interest - rendered Section 377A otiose a fortiori.
Tan, represented by lawyer M Ravi, furthermore sought a mandatory order compelling the members of the Cabinet to move a Bill in Parliament to repeal Section 377A. Under the Supreme Court of Judicature Act (Section 18 (2) read with the First Schedule[300]), the High Court could issue "any person or authority any direction, order or writ for the enforcement of any right conferred by any written law or for any other purpose". Tan applied for the mandatory order because Section 377A had become dead letter and its retention in the face of Sections 17 and 424 of the Criminal Procedure Code, Sections 119 and 176 of the Penal Code and Section 9A of the Interpretation Act was unlawful due to the Executive’s decision not the enforce Section 377A. Under Section 9A (1) of the Interpretation Act, the courts were required to interpret a written law in a way that promoted the purpose or object underlying that law. Parliament's undertaking not to proactively enforce Section 377A rendered the courts unable to perform their legal obligation.
Appeal against High Court's dismissal[edit | edit source]
At 10am on Monday, 25 January 2021, appellants Roy Tan Seng Kee, Johnson Ong and Bryan Choong Chee Hong had their cases against High Court Justice See Kee Oon's dismissal of their constitutional challenge heard simultaneously in Court 9A of the Court of Appeal. Owing to the ongoing Covid-19 pandemic, the proceedings, open to the public but with social distancing implemented in the spectator gallery seating, were held via a Zoom meeting between the panel of 5 judges - Chief Justice Sundaresh Menon, Andrew Phang, Judith Prakash, Tay Yong Kwang and Steven Chong - and the appellants' respective lawyers in their offices.
CJ Sundaresh Menon said the "political compromise" struck by the Government in 2007 - to keep Section 377A but not enforce it - should be a factor in determining whether the law, which criminalised sex between men, passed muster[301]. He noted that the legislative act of retaining Section 377A and the undertaking by the Government not to enforce the law had to be factored into the equation. He said: "In assessing the constitutionality of 377A today, you have to look at the total package."
The appellants contended that Section 377A should be struck down as it violated, amongst other statutes, Article 12 of the Constitution, which guaranteed equality before the law. They argued that the law criminalised sex acts only between homosexual men, but not acts between homosexual women or heterosexuals. Bryan Choong's lawyers, Senior Counsel Harpreet Singh Nehal and Jordan Tan, said men were being treated unequally because women could not be punished for acts of gross indecency. Singh also argued that constitutionality ought to be assessed independently of the undertaking which would not be binding on future governments. He pointed out that Parliament's stance of non-enforcement did not preclude such cases from being taken before the courts anyway because the public prosecutor’s exercise of prosecutorial discretion was unfettered, as Attorney-General Lucien Wong had stated so himself on 2 October 2018[302]. “The present Attorney-General cannot bind the discretion of the future Attorney-General. The net result is that this undertaking cannot bind either the current government or future government’s decree,” he explained. This situation was therefore “unsettling” for members of the gay community because there was still a real threat of police investigation once a report relating to Section 377A was made, even for private consensual conduct in one’s home. He suggested that an appropriate legal remedy would be to remove from Section 377A the words “in private”, saying “At least, (that would be) entirely consistent with the bargain struck in 2007.”
Johnson Ong's lawyer, Eugene Thuraisingam, argued that it was absurd to criminalise a particular sexual orientation when scientific evidence showed that sexual orientation could not be voluntarily changed and it was not caused or influenced by social factors. He also raised a technical legal argument, pointing out that the arbitrariness of Section 377A was amplified by the fact that it targeted male homosexual conduct specifically, when the available evidence - including the 2007 legislative debates - indicated that its intent was to advance an alleged social morality against homosexual conduct generally. He pointed out that the court should consider bringing to criminal law a certainty in the foreseeable future as to whether there were risks of a person being prosecuted. He asked, “What legitimate expectation could there be when you know that even the Attorney-General’s powers are not fettered by what Parliament has said. The Attorney-General has got the duty to act independently, so, really, what legitimate expectation are you talking about?”
Roy Tan's lawyer, M Ravi, said the ambiguity inherent in Section 377A created uncertainty as to how other criminal provisions should be construed. For example, under Section 424 of the Criminal Procedure Code, a person who was aware of another person's offence had to report it to the police. Ravi said it was unclear if gay men would be prosecuted for failing to report homosexual activity. Ravi refuted a point in the AGC’s submission, which stated that the court should find that a law is absurd in the substantive sense only if it is based on an “extremely high threshold” such as a law that bans left-handed people from using elevators. He argued, “From the AGC’s point of view, the scientific evidence does not conclusively show that sexual orientation is immutable or cannot be wilfully changed, or both. But this also applies to people who are left-handed. Some people consider themselves born left-handed or some who are left-handed choose to be right-handed. Many left-handed people still choose to learn to write with their right hands because society has deemed them as different.” Arguing that Section 377A should then be found as an absurd law by the same logic, Ravi said: “Both are laws that are absurd and distinguish a special class of people who are not allowed to behave in the way they are supposed to.”
State Counsel Kristy Tan, senior director of the advocacy group of the AGC, represented it in making oral submissions during the session. She noted that the appellants were trying to recast the issue as a technical and legal one to be decided by the courts, but the same arguments were dismissed by the Court of Appeal in 2014. She said: “This socially controversial issue falls within the realm of the legislature. The judiciary, through previous cases, has said that the courts are not the appropriate forum to consider a legal change which raises serious political and social issues. It is squarely a decision for Parliament, comprising the elected representatives of the people, to determine on behalf of Singaporean society.” She said scientific evidence on sexual orientation remained inconclusive and the court was not the appropriate forum to settle the matter. She argued that although Section 377A only covered men, this distinction was rational as the purpose of the provision in 1938 was to express society's views about sex acts between men. At one point, Justice Prakash asked Tan whether successive governments would be bound to the position of the present Government. “My question really is, if we think that this is a discriminatory piece of legislation, then should we allow it to remain on the books on the basis of an undertaking by the present Government? Because we cannot foresee the future.” Tan said that if successive governments were to take on a different position, a resurrected challenge could always be brought forward. “It would certainly not preclude the court or any litigant from asking for the issue to be relooked,” she added. Justice Prakash was not satisfied with the answer, saying: “But that’s not my point. Of course, somebody would come along and challenge it at that stage. But would it be correct for us to say, ‘Well, it can stay because it is not being enforced and the balance has been achieved’ - if we think that it is not constitutional.”
Singapore's third Universal Periodic Review[edit | edit source]
During Singapore's third UPR, which took place on 12 May 2021, about a dozen UN members, especially the developed nations, recommended that Singapore eliminate all forms of discrimination against her LGBT citizens, in particular via the decriminalisation of same-sex relations between men[303]:
In reply, Ambassador-at-large Chan Heng Chee basically repeated what she said during the previous UPR - that Section 377A was retained but not enforced[304]:
Transcript:
Chan Heng Chee: "Finally, I will touch on the LGBT issue, which was raised by the United States, Sweden, countries from the European Union, Australia, Iceland, Ireland, Israel, Luxembourg, and New Zealand, among others. Let me reiterate that for Singapore, the LGBT community are valuable members of our society. The Government does not tolerate violence, abuse, discrimination, and harassment against the community. An annual Pink Dot event in Singapore has been organised by the LGBT community for the past 12 years. While Section 377A of the Penal Code remains on the books, the Government has stated clearly that it is not enforced. In the context of Singapore, where attitudes towards homosexuality are still evolving, and various communities hold different views, any move by the Government must take into consideration the sentiments of all communities. We believe it is better to let the situation evolve gradually."
Court of Appeal dismisses challenges but declares 377A "unenforceable"[edit | edit source]
- See also: Archive of Court of Appeal judgment in Tan Seng Kee v AG and other appeals, 28 February 2022
On Monday, 28 February 2022, the Court of Appeal released its judgment in Tan Seng Kee v AG and other appeals firstly at 10am to the 3 appellants' lawyers and later at noon to the media[305],[306],[307],[308],[309],[310],[311],[312],[313],[314],[315]. The court, led by Chief Justice Sundaresh Menon, upheld the High Court's decision to dismiss the three challenges to Section 377A but declared that the statute was “unenforceable in its entirety” until the Attorney-General of the day signalled a change in the prosecutorial policy. Reacting to the court's decision, Roy Tan described it as a “partial but significant victory for the LGBT community”. He said: “Although, on the surface, it may be disheartening that the apex court has not ruled Section 377A unconstitutional, it has however declared the statute "unenforceable". This will have numerous legal and social ramifications that will play out in the months and years to come.” Tan said he had filed an application in the High Court seeking an order to compel the Cabinet to move a Bill to repeal Section 377A. Tan's lawyer, M Ravi, also elucidated his views during a press conference held soon after the release of the judgment[316],[317],[318]:
In a 152-page written judgment delivered by Chief Justice Sundaresh Menon on behalf of a five-judge panel, the Apex Court stressed that the appeals were "not about whether Section 377A should be retained or repealed", as this was "a matter beyond our remit". "Nor are they about the moral worth of homosexual individuals," said the Chief Justice. He quoted Prime Minister Lee Hsien Loong's words that homosexual individuals are "part of our society" and "our kith and kin". The appeals were also "not about the fundamental nature of sexual orientation (whether immutable or not)", this being an "extra-legal question well beyond the purview of the courts", he said.
The appeals were instead about whether Section 377A was inconsistent with the Constitution, but even this was a "deceptively easy answer" that "belies the underlying complexity of the issues that are before us", said the Chief Justice. The Court of Appeal held that the entirety of Section 377A was "unenforceable" unless and until the Attorney-General of the day provided clear notice that he, in his capacity as the public prosecutor, intended to reassert his right to enforce the law by way of prosecution and would no longer abide by representations made by the then AG in 2018 as to the prosecutorial policy that applied to certain conduct.
Chief Justice Menon said it was therefore "unnecessary" for the Court of Appeal to address the constitutional questions raised by the appellants. "They do not face any real and credible threat of prosecution under Section 377A at this time and therefore do not have standing to pursue their constitutional challenges to that provision," said the Chief Justice.
The judgment laid out a summary of the "political reality" surrounding Section 377A in three main points. "First, although Section 377A was retained in our statute books, this was on the terms that it would not be proactively enforced," said the Chief Justice. "The Government's evident unwillingness to repeal Section 377A signals its assessment that society has yet to adequately integrate the opposing views of mainstream conservatives and the homosexual community, as well as its awareness that our multi-racial, multi-lingual and multi-religious community remains vulnerable along such fault lines. The Government was especially cognisant that forcing the issue would polarise those who are 'presently willing to live and let live'." Second, the retention of Section 377A in 2007 "was directed at addressing a deeply divisive socio-political issue in a pragmatic way", the court said. The decision not to repeal Section 377A then "was a legislative one that was informed not by the purpose behind the enactment of the provision some seven decades earlier, but by the Government's objective of striking an optimal compromise between competing interests in our society and accommodating differing perspectives on homosexuality", said Chief Justice Menon. Third, the purpose of the "political compromise" on Section 377A that was reached in 2007 was to "strike a careful balance between the opposing interests of various groups". "The retention of Section 377A served to accommodate the views of the more conservative segments of society, while the caveat that Section 377A would not be proactively enforced served to accommodate the interests of homosexual individuals and to allow them to live their lives in as full a space as is presently possible," said the Chief Justice.
Other points that the Court of Appeal made in its judgment include the following: First, the right to express one's sexual identity, even in private, was not an express constitutional right. Second, Section 377A was not an "absurd" law, and "many reasonable people do in fact see Section 377A as being morally justified", as evident from parliamentary debates. "Numerous parliamentarians spoke up in favour of retaining Section 377A, often on the ground of safeguarding societal morality and with the recognition that a sizable segment of our society regards homosexual behaviour as unacceptable," said Chief Justice Menon. The Apex Court agreed with High Court judge See Kee Oon that Section 377A did not violate Article 9(1) of the Constitution of Singapore, which stated that no person shall be deprived of his life or personal liberty save in accordance with the law. AGC's lawyers reiterated the Government's position that the police will not take proactive action to enforce Section 377A.
Reaction of LGBT community[edit | edit source]
- Main article: Reaction of LGBT community to Court of Appeal ruling in Tan Seng Kee v AG and other appeals, 28 February 2022
In stark contradistinction to M Ravi's sanguine interpretation of the judgment, the other appellants, as well as the vast majority of LGBT groups were dismayed at the news. Johnson Ong said: “I am disappointed with the outcome but the ruling does not mean the end of the community’s pursuit for equality.” He added that it will take more time before the community finds full recognition and acceptance by policymakers and society. Bryan Choong penned on his Facebook[]: "Needless to say, we are upset and disappointed with the judgment. Many of you must be feeling just as emotional as those who have worked relentlessly on this... Today's judgment from the Court of Appeal does not mean our work to make Singapore a more inclusive and accepting society will stop." Pink Dot SG said it was "profoundly disappointed" by the court’s decision, adding, "The acknowledgement that Section 377A is unenforceable only in the prosecutorial sense is cold comfort. Section 377A’s real impact lies in how it perpetuates discrimination across every aspect of life - at home, in schools, in the workplace, in our media, and even access to vital services like healthcare." Ready4Repeal published a community statement from various LGBT groups in Singapore on its Facebook page[319].
Analysis by law academics[edit | edit source]
Legal academicians pointed out that although the Apex Court ruled that Section 377A was "unenforceable in its entirety", it did not conclusively rule on whether the provision was constitutionally valid and therefore, the issue remained open[320]. Marcus Teo, a Sheridan Fellow from the law faculty of the National University of Singapore (NUS), said that the judgment had given homosexual men “clear legal certainty” that they would not be prosecuted under Section 377A, adding that the Court reasoned that this would uphold the Government’s promise made over a decade ago that “homosexual individuals would not be harassed and could live freely within the space afforded to them." Assistant Professor of Law Benjamin Joshua Ong from the Singapore Management University (SMU) said that the ruling had a broader effect than the AG's previously stated policy, adding that in 2018, it was not in the public interest to enforce Section 377A against "consenting adults in a private place". However, the Court of Appeal now held that Section 377A was not enforceable altogether in any case. Associate Professor of Law Eugene Tan, also from SMU, agreed that the ruling provided legal protection that sexually active homosexual men had sought since Prime Minister Lee Hsien Loong pronounced in 2007 that Section 377A would not be actively enforced, even though Parliament ruled to retain it. However, both Marcus Teo and Benjamin Ong said that the ruling did not mean any male-male sexual intercourse was now legal. General laws such as those criminalising sexual intercourse with a minor still applied to everyone. This meant that, for example, if two men had sex in public, they could not be prosecuted under Section 377A, but could instead be prosecuted under a law that criminalised public indecency by anyone. Ong said: “In my view, that is a positive development as the charge would then accurately reflect the gravamen of the offence. When two people have sex in public, the crux of the wrong is that it is public indecency; whether or not they are men is irrelevant.”
As for the legal ramifications arising from the judgement, Assoc Prof Eugene Tan of SMU said that the position on homosexual sex still “remains rather untidy” even with the court’s decision. It raised the question of whether Parliament would provide further clarity beyond its 2007 stance and the court’s legal protection. He added that this could be done by amending Section 377A, by striking out the words "or private". Separately, Asst Prof Benjamin Ong pointed out that the Court of Appeal had now clarified that the AG could not prosecute someone for failing to report conduct covered by Section 377A to the police. In terms of the constitutionality of Section 377A, because the Court of Appeal did not express a concluded view on it, someone could argue again that it was unconstitutional should the AG change his policy on non-enforcement. Its remarks that Section 377A did not violate Article 9(1) of the Constitution were not binding and the issue remained open, Ong elaborated. Marcus Teo from NUS said that the judgement had further discussed important points of law under the Constitution of Singapore in relation to constitutional guarantees to life and liberty, freedom of expression and equality.
Reaction of Government[edit | edit source]
On Thursday, 3 March 2022, MP Derrick Goh from Nee Soon GRC asked about the Government's position on the Court of Appeal ruling while speaking during the Parliamentary debate on the budget of the Ministry of Home Affairs[321],[322],[323]. In response, Home Affairs Minister K Shanmugam noted that the Government had explained its stand on the issue when the Penal Code was amended in 2007, but Section 377A was left unchanged. During the parliamentary debate on the issue at that time, Prime Minister Lee Hsien Loong had said Singapore wants to be "a stable society with traditional heterosexual family values, but with space for homosexuals to live their lives and to contribute to society. Among them are some of our friends, our relatives, our colleagues, our brothers and sisters, or some of our children... our kith and kin," PM Lee had added. Referring to Lee's remarks in 2007, Shanmugam reiterated: "This remains our stand today." [324],[325],[326]
He noted that the issues surrounding Section 377A were deeply divisive, and that is why Singapore had taken a "live and let live approach". "We seek to be an inclusive society, where mutual respect and tolerance for different views and practices are paramount," he added. That is why the Government had taken the approach that while Section 377A remained on the books, there would be no proactive enforcement. He said that the AGC took a similar approach. Under the law, there were protections for the LGBT+ community, he explained, citing how the Government had expressly included in the Maintenance of Religious Harmony Act that any attack on any member of the LGBT community because of his or her identity, or on LGBT+ groups, would be an offence, and would not be tolerated. "LGBT individuals are entitled to live peacefully, without being attacked or threatened," he quipped. "Likewise, any attack on any other group, based on their religion or religious beliefs, even if those beliefs run counter to values held by LGBT+ groups, will not be acceptable."
Shanmugam said Singapore's emphases on gradual evolution and on traditional families remained constant. However, he pointed out that social attitudes towards homosexuality had gradually shifted since the issue was last discussed in Parliament in 2007. He noted that many, especially younger Singaporeans, believe that consensual sex between men should not be deemed a criminal act and should not be criminalised. "One of the things that upsets the LGBT+ community is that many feel that their experience of being hurt or rejected by their families, friends, schools, companies - is not recognised, indeed often denied," he elaborated. At the same time, there was also a large majority who wanted to preserve the overall tone of society. This segment wanted to uphold the traditional view of marriage as being between a man and a woman, and believed that children should be raised within such a family structure. "Their concern is not Section 377A per se, but the broader issues of marriage and family. Many amongst this group also support decriminalising homosexual sex between men," he explained. "Both these viewpoints are valid and important," the minister stated.
He also noted that the Courts had said the current legal position reflected society's norms, values and attitudes. In successive judgments over the years, the Courts had consistently taken the position that these were highly contentious social issues that should be decided by Parliament, and that the heterosexual, stable family remained the social norm. On the latest judgment by the apex court, Shanmugam said the Court's opinions aligned with the Government's approach in dealing with Section 377A, as well as the approach the Government intended to take as it considered the changes in Singapore's social landscape since 2007. For instance, the Court had noted that the compromise which Singapore had struck, in respect of Section 377A, was unique, and described the approach as one that preserved the legislative status quo, while accommodating the concerns of those who were directly affected by the legislation. "The Court recognised that the Government did this in order to avoid driving a deeper wedge within our society," he said. "It also noted that Singapore's approach seeks to keep what to do with Section 377A within the democratic space."
He added that the Court had also highlighted the importance of creating space for peaceful co-existence among the various groups, especially since the balance between the various interests around Section 377A has grown more delicate. Socially charged issues, such as whether or not to repeal Section 377A, called for continued discussion and open-ended resolution within the political domain, where consensus could be forged, rather than for win-lose outcomes in court. "In this way, we can accommodate divergent interests, avoid polarisation and facilitate incremental change," he concluded.
Reaction to K Shanmugam's speech[edit | edit source]
Religious communities stood by the reaffirmation of traditional family norms after K Shanmugam's statements while advocates for the LGBT community hoped that the shifting attitudes towards the contentious matter were a step towards repealing the law[327],[328],[329],[330]. However, both sides largely agreed with Shanmugam on the need to engage key stakeholders in considering how to best move forward with the issue.
Religious organisations[edit | edit source]
The National Council of Churches of Singapore (NCCS), which represented about 200 churches, noted the position of the Government and the Attorney-General's Chambers, which was that Section 377A be retained but could not be enforced. It said in a statement on Friday, 4 March 2022 that this "successfully achieves this delicate balance between the different (and opposing) interests of various groups. This 'unique compromise', which Singapore has struck, has worked so far in preventing a deeper wedge from being driven within our society," the council added. The Roman Catholic Archdiocese of Singapore, which oversaw 32 Catholic churches, said it was "fortunate that we have a Government that places stability and harmony in our multi-religious and multiracial society above any sectarian interests", adding it did not condone the marginalisation of "those who do not subscribe to (the Church's) values, including those with LGBT+ orientation". However, it asked that "others who do not subscribe to our values also respect our right to exercise our religious beliefs without fear or favour". The Alliance of Pentecostal and Charismatic Churches in Singapore (APCCS), which represented more than 80 churches, affirmed the need to carefully balance different views in society while "avoiding the destabilisation of social norms". It said: "APCCS expects that any change in Section 377A would lead to adjustments in national policies relating to marriage, family, children, education, media, housing and more. As the family unit is undermined or rewritten, the gradual erosion of societal strength and resilience follows... Any moves away from the status quo would result in a suite of knock-on effects."
The Islamic Religious Council of Singapore (MUIS) said that it welcomed the Government's commitment to "maintain family norms and values in Singapore". "For Muslims, we are guided by the teachings and moral values of our faith, including on matters relating to sexuality, marriage, and the constitution of the family as an important social unit... At the same time, we must continue to treat everyone with respect and compassion." On 7 March 2022, Singapore's top Islamic leader, Mufti Nazirudin Mohd Nasir said while there was a recognition that the LGBT issue was a very complex and complicated matter, there was also a need to work harder and move faster towards some resolution[331]. This was because people continued to expect religious leaders in Singapore to provide guidance on the matter. He said Islam's position was clear that homosexuality was not permissible. But he added that the LGBTQ community as a social issue was "complex and multi-faceted". "On the one hand, our theological position on this is clear in terms of the homosexual acts itself - they are not permitted in Islam. On the other hand, we also have the other aspect of theology of living with, and living as, such individuals in a community and society that is diverse, inclusive and open," explained Dr Nazirudin. "We first need to develop these aspects of our theology carefully. Another big area of debate and discussion is, as a diverse society, what are the norms that should shape it? And what are the acceptable and unacceptable practices in such a society? We need more conversations on this." Some of these conversations were underway, he added. He was currently engaging the asatizah, or Islamic religious teachers, to understand their views on the issue, given how they were in touch with the ground. Through these discussions, he had observed that there were many different perspectives. Dr Nazirudin said Muslims here had to find a way to have more conversations on issues such as 377A, and it should involve listening to a variety of voices. Noting that there were some people who had said there was no need for more discussions, given how clear the religious position was, he remarked the issue was not as simple as it appeared. "I wish we could say that, and we could say that to everything else... But does a clear religious position solve a social problem? It is a starting point, but we must also acknowledge and come to terms with the complexity of the issue itself to do it justice. And that's why human societies will always have difficult issues, and we must find a way to talk about them in a way that we can come to an agreement as to how we move forward as a society." Many values in Islam were rooted in compassion, kindness and inclusivity, even in dealing with prohibitions in religion, said the Mufti. He pointed out that there were Muslims who did not practise certain aspects of the religion too. This did not mean the community rejected them, but instead, it should find a constructive way of coexisting while reminding one another to uphold the faith. "We should see how we can apply this same approach and values to all other facets of our social life," he concluded.
The Sikh Advisory Board said that it agreed with "the balanced approach that the court has taken on the appeal against Section 377A", adding, "We believe this outcome considers and balances the interests of all segments of society and preserves social harmony and cohesion (and) encourage all interested parties to continue a constructive dialogue within society on this matter."
LGBT activists[edit | edit source]
Some supporters of the LBGT+ community were disappointed by the court’s ruling to dismiss challenges to Section 377A, but were encouraged by Shanmugam's acknowledgement that social attitudes towards homosexuality had changed since 2007. Leow Yangfa, executive director of LGBT+ non-profit organisation Oogachaga, said he "agreed wholeheartedly" that there had been a shift in attitudes towards the community since 15 years ago. He pointed to studies by the Institute of Policy Studies and a survey done by TODAY as examples indicating this shift, where people were becoming more open to LGBT+ folk. Pauline Ong, executive pastor at the Free Community Church, also agreed with the shift and was "hopeful that one day our laws will reflect the just, inclusive and equal society that we strive to be." Pink Dot SG spokesman Clement Tan said that the group was "glad that Mr. Shanmugam openly acknowledged the rejection and hurt faced by the LGBTQ+ community in Parliament". Agreeing, Leow said that Oogachaga was "especially grateful" to the minister for acknowledging that "many members of Singapore's LGBT+ community have felt that our experiences of rejection have been ignored", adding, "This display of empathy has been noted, and goes a small way towards healing some of the hurts we feel." Some other pro-LGBT+ groups said that they were "cautiously optimistic" by what Shanmugam had said. They believed that many LGBT+ individuals still faced challenges due to the "trickle-down" effects of Section 377A. Benjamin Xue, co-founder of LGBT+ youth support group Young Out Here, said that despite being "surprised" that Shanmugam had taken some time to address the issue, the law still stood after the court ruling, adding, "Its trickle-down effects affects (LGBT+ individuals') self-worth and the way they see themselves, in schools, at home, among their friends and in their future in Singapore. I do hope what Mr Shanmugam said yesterday marks a shift in the way LGBTQ+ (people) are treated in Singapore. We understand acceptance takes time, but changes towards acceptance and inclusion needs to start now (and) repealing 377A is that start." Jean Chong, co-founder of LGBT+ rights group Sayoni, said that she was not clear about what Minister Shanmugam meant by "incremental change" and hoped that decisions could be made sooner, adding,. "The Government should immediately rectify the many policies that are discriminatory, enact laws to protect LGBTQ+ persons and repeal 377A."
Agreement on dialogue[edit | edit source]
Although the groups on both sides of the issue diverged in their thinking and responses to Shanmugam's comments, they both agreed that more consultation with various stakeholders would be welcome. MUIS said: "We support the Government’s approach for continued discussion and will continue to provide our feedback to the Government, guided by on our norms and values." NCCS likewise stated that it would "continue to work closely with the Government as it considers the ‘best way forward’ on Section 377A". Clement Tan from Pink Dot SG said that the group was "encouraged by plans to review the situation in consultation with key stakeholders, especially where it involves updating legislation and policies". Pauline Ong from the Free Community Church said: "We hope that those who hold different perspectives would commit to continual dialogue and listening to one another, and come to know one another as fellow human beings, and through this, we would find a way forward together."
Masagos: Government to uphold "traditional family" policies without creating “sudden shifts and deep division”[edit | edit source]
On Thursday, 10 March 2022, while speaking during the debate on the spending plans by the Ministry for Social and Family Development, Minister Masagos Zulkifli, in response to a query MP Seah Kian Peng from Marine Parade GRC, who had asked for his ministry's stance on Section 377A, stressed that the Government would work to ensure that LGBT+ persons were protected from violence, harassment, and abuse through laws such as the Protection from Harassment Act (POHA)[332],[333],[334].
He said: “We also urge the public to step forward to report violence and abuse where LGBT cases may be involved.” He also alluded to Home Affairs and Law Minister K Shanmugam's comments the previous Thursday that policies needed to evolve to keep abreast of the gradual shift in society's attitudes towards homosexuality. He said: "The court has acknowledged that the Government's current approach on this matter avoids driving an even deeper wedge in our society." While Singapore society could be described as "largely traditional", there was now a wider range of views and attitudes on families and marriage. For example, more than 30 years ago, one in ten marriages were from inter-ethnic groups. Currently, it was almost one in five, with some MPs among such couples. He also cited a 2019 Institute of Policy Studies survey where 11.4% of respondents felt there was nothing wrong with sexual relations between two same-sex adults. This was double the figure in a 2013 survey, which was about 5.6%. “We are therefore not surprised that we are seeing an increasing acceptance of LGBT persons socially among Singaporeans,” he added. "But while societal attitudes are gradually shifting, the majority value and wish to preserve the traditional family: that of a man and a woman marrying and raising a child or children in a stable family unit," stressed Masagos, who was also Minister-in-charge of Muslim Affairs. He said that the traditional family structure continued to be the bedrock of society as it “contributes to social stability and allows children to strive. We will uphold the traditional family in our government policies and laws reflecting our societal norms and values. This includes marriage, parenthood, adoption, fertility treatment, housing and inheritance, among others. Concerns surrounding Section 377A and its implications still have the potential to polarise society. It is an issue that involves deeply held beliefs and values, and divergent societal views and goals. We will continue to adopt the approach of civil dialogue, working with all, involving all stakeholders, as we chart our own unique Singapore way forward without creating sudden shifts and deep division in our society."
K Shanmugam: Ministers should refrain from expressing personal views on 377A[edit | edit source]
On Friday, 11 March 2022, in response to a question at the State of the Family 2022 event organised by conservative Christian organisation Focus on the Family Singapore on whether there would be changes to sexuality education if Section 377A were repealed, K Shanmugam said that the Government would work through the potential impact and consequences[335],[336],[337],[338]. Regarding his recent parliamentary statement, he explained that it was carefully considered and delivered on behalf of the Government. All individual ministers were bound by the Cabinet's decisions on Government policy and they should refrain from expressing their own personal views on the matter, he added at the event organised by Focus on the Family Singapore, a conservative Christian organisation. He noted that one of the questions posed at the event showed that the concern of many was not Section 377A per se, but its consequences if the law were repealed, adding that it was something the Government was aware of and must deal with. He stressed that there were two valid and important viewpoints that the Government would consider in dealing with this matter - one viewpoint was that the vast majority of Singaporeans believed that a heterosexual marriage between a man and a woman remained the fundamental building block of society, and the other was that many Singaporeans, including those who held the first viewpoint, believed that private consensual sex between men should not be criminalised and wanted to see Section 377A repealed.
Roy Tan withdraws application for mandatory order to compel Cabinet to move Bill to repeal 377A[edit | edit source]
On 9 March 2022, Roy Tan's lawyer M Ravi who was then knowledge manager of law firm L F Violet Netto, received the following letter from the AGC[339]:
"Dear Sirs,
HC/OS 1224/2020 (“OS 1224”)
We refer to the above-captioned matter, and the Notice of Change of Solicitor filed on 1 March 2022, stating your appointment as the new solicitor for Dr Tan Seng Kee in OS 1224.
2. As your client would be aware, the Honourable Court of Appeal released its decision in Tan Seng Kee v Attorney-General and other appeals [2022] SGCA 16 (“Decision”) on 28 February 2022. In the Decision at [150], the Honourable Court of Appeal addressed, amongst others, all of the issues raised by your client in OS 1224 (viz. s 424 of the Criminal Procedure Code, ss 119 and 176 of the Penal Code, and the right of the police to investigate), save that at [4] below (viz. the mandatory order at prayer 1 of OS 1224):
“It naturally flows from our holding that prosecutions under provisions such as ss 119 and 176 of the PC should not be instituted where the underlying offence is one under s 377A. In the same vein, offences under s 424 of the CPC should not be prosecuted where the “arrestable offence” (as statutorily defined) is one under s 377A. However, nothing in our holding affects the right of the police to investigate all conduct, including any conduct falling within the Subset and/or amounting to an offence under s 377A (see [113] above). Nor does our holding constrain the PP’s right to prosecute conduct falling outside the Subset where such conduct violates any other law, or impact the duties applicable to others arising, for instance, from their awareness of or participation in such conduct, whether actual or intended.”
3. Given the above, it is clear that your client’s concerns in OS 1224 have been addressed in the Decision, and OS 1224 is now moot and/or unsustainable in view of the Honourable Court of Appeal’s holdings.
4. As for the sole remaining issue of your client’s application for leave to apply for “a Mandatory Order compelling the members of the Cabinet to move a Bill in Parliament to repeal Section 377A of the Penal Code” (prayer 1 of OS 1224), while this was not specifically addressed in the Decision, this is plainly and obviously unsustainable in law. As the Honourable Court of Appeal recognised, “the doctrine of the separation of powers calls for each branch to respect the institutional space and legitimate prerogatives of the others” (the Decision at [15]). It would plainly be contrary to the doctrine of separation of powers, for the Judiciary to mandate members of the Cabinet to move a Bill in Parliament.
5. In the circumstances, we write to invite your client to withdraw OS 1224. We will not seek costs from your client if OS 1224 is withdrawn at this stage. If OS 1224 is not withdrawn notwithstanding the clear holdings in the Decision, we intend to seek full costs from your client if he is unsuccessful in OS 1224.
6 Please let us have your response on [5] above by 23 March 2022.
Yours faithfully,
Hui Choon Kuen Senior State Counsel"
As such, upon Ravi's advice, Tan withdrew his Originating Summons given what the AGC had laid out in the letter.
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Webinar on legal implications of decision in Tan Seng Kee v AG[edit | edit source]
On Friday, 13 May 2022, a live webinar entitled, "The Legal Implications of the Decision in Tan Seng Kee v Attorney-General [2022] SGCA 16" was conducted from 2:30pm to 4:30pm by the Law Society of Singapore. During the event, speakers and panellists closely examined the decision itself, particularly the discussion on the role of the Court, the issue of political compromise and uncertainties, the doctrine of substantive legitimate expectation and finally, whether Section 377A was at odds with Articles 9, 12 and 14 of the Constitution.
REACH survey on attitudes towards LGBT issues and Section 377A[edit | edit source]
On Tuesday, 22 March 2022, the Government's feedback unit REACH published its first public poll soliciting sentiments regarding LGBT+ issues[340]. It was accessible for a record shortest period of just one day before it was abruptly closed without warning at noon, Wednesday, 23 March 2022, when it had drawn more than 30,000 responses, a figure far exceeding the usual number which ranged from several hundred to a couple of thousand for other surveys[341],[342],[343]. The media speculated that several groups had mobilised people to take part in the poll.
Feedback from the REACH poll "will be shared with relevant agencies and could be used within the Government for policy updates and changes", said the survey in its preamble, which also stated: "We wish to hear your thoughts about the LGBT+ community in Singapore. This survey is open to everyone regardless of your sexual orientation and/or gender identity." When asked if it was REACH's first public survey on attitudes towards the LGBT+ community and Section 377A, as well as why the survey was commissioned, a REACH spokesman said: "This survey is one of many that REACH pushes out frequently to Singaporeans to gather feedback on issues they are concerned with." In the survey, under the section that collected demographic data of the participants, the question on gender provided three options - male, female and others. There were also questions on whether participants felt that the LGBT+ community was accepted in Singapore, and if they were supportive of the LGBT+ community and its causes. The survey also asked for participants' opinions on whether Section 377A should be repealed, maintained, modified, or if they were indifferent to it.
After the survey closed, REACH said on the site that there had been "an overwhelming response that far exceeds the usual number of responses received in our e-Listening Points". An e-Listening Point is virtual feedback via online surveys, including through platforms such as WhatsApp, TikTok and Grab. The Government unit added that its Listening Points engaged more than 65,000 people in 2021. REACH chairman Tan Kiat How pointed out that a survey on home-based learning drew feedback from some 20,000 parents in three days.
Reaction to poll and abrupt closure[edit | edit source]
LGBT activist and semi-retired doctor Roy Tan felt that the survey was “one of the positive developments elicited by our achievement of the recent ‘unenforceable’ ruling by the Court of Appeal”[344]. Tan felt that the “Government’s realisation of the currently untenable situation is what may have spurred REACH to launch the survey to garner feedback from the public regarding whether the majority want to keep gay Singaporeans criminalised”. He speculated that “if the findings show that the public generally are conservative and do not want an erosion of the normative heterosexual paradigm, yet at the same time, feel that gay men should not be viewed as criminals in the eyes of the law, it would provide a solid reason backed up by statistics for the Government to repeal the law”. He added that the survey by REACH was “groundbreaking because it is the first major and large-scale Governmental initiative to gather feedback from the general public about attitudes towards the gay community” and even touches on questions regarding the law on the criminalisation of male homosexuality. Tan added that previous surveys were on a smaller scale, carried out by private or quasi-governmental organisations. However, he cautioned against using surveys to shape policies as it pits the majority against the minority, with the minority groups always at the losing end. Dr Tan said he was hopeful about the future, as “the younger generations are increasingly woke and have a greater sense of social fairness, so acceptance of the LGBT community is bound to increase as the years go by”. “This can only have a beneficial effect on the eventual attainment of equality in all aspects of life for the community as the Government has already signalled its willingness to institute legal reform based on evolving social attitudes,” he added.
After the survey closed suddenly, some people took to social media to express their unhappiness at missing the deadline to submit their responses[345],[346]. In a Facebook post, Pink Dot SG urged its followers on Wednesday, 23 March 2022 to submit their feedback and added that the “survey is expected to close before the end of the week”. It explained that “the survey is an opportunity for us to make our concerns known to people in power, even if they are imperfect tools in capturing the complexity and nuances of our lived experiences. Our contributions to this outreach can provide useful insights for our policymakers and help inform decisions that will impact all of us for years to come”. However, the group cautioned against seeing the survey “as a numbers game”, as the survey was “not an opportunity for different groups to flex their power, size, or popularity”. “We should not use this survey as a battleground to picket, or to make any sort of public statement,” it opined. The organisation added that it was divisive to treat Singapore’s society as comprising of “majorities and minorities”, and hoped to “start having real conversations about the lives we lead here in this country, and how we are impacted by legal and social discrimination at home, in schools, and in the workplace”. “Your stories matter. We urge you to seize this opportunity to be heard”, it exhorted.
Members of We Are Against Pinkdot in Singapore, a group opposing the causes espoused by the LGBTQ community, also shared the survey's weblink on Tuesday, urging others to make their perspectives heard. Some observers commented that one flaw with the survey was that it allowed an individual to submit multiple responses. Freelance journalist Kirsten Han wrote on Twitter on Tuesday, 22 March 2022 that she expected “conservative Christian circles” to take part in the survey "en masse". “The next thing you know, the results are used by the Government to justify policy,” she said, adding that this was the only reason why she was responding to the survey. Other criticisms seen online included the way some questions in the survey were asked. One Twitter user, who went by the handle @wwei11, said that she was stumped by the way the questions were phrased. One example was: "I feel that the LGBT+ Community is accepted in Singapore." To this, @wwei11 said: “Is accepted vs should be accepted are two very different things. I'm not sure what they are asking?” Facebook user Edric Sng was also critical of the survey, which he felt “falls short on many levels”. These include allowing anonymous participants, not having a representative cross-section of the population and the phrasing of the questions, which will “lead to unclear conclusions”. “In the end, there is just one clear question… on (whether) Section 377A should be maintained, repealed or in some way modified,” he wrote. “But given the methodical issues, even that result will not be credible. Which does not help the conversation at all, and in fact only escalates the already shredded tensions. In which case — why bother?” he continued.
Comments on social media regarding the survey were mostly supportive of the LGBTQ+ community. One Ivan H M Wong posted, “Done. Submitted. But doubt things will change for the better”, and Suze Shon Ng commented that “Love is love”. “We are laughing stock if still let this old century law exist. Not a nanny state still, are we?” she asked. There were some dissenting views as well. In his short and sharp retort, Jonus Jun wrote, “Nothing to discuss, no room for pink dot here in Singapore.”
MCI's response to parliamentary question on REACH LGBTQ survey[edit | edit source]
During the parliamentary sitting on 9 May 2022, two Members of Parliament (MP) submitted the following questions to the Ministry of Communications and Information (MCI) regarding the REACH survey[347]:
- Alex Yam Ziming: To ask the Minister for Communications and Information with regard to the recent REACH survey on attitudes towards LGBTQ (a) what were the reasons for the unusually high volume of responses in a short timeframe; (b) whether the survey is restricted to only Singaporeans and permanent residents; and (c) whether the Ministry considers the survey results to be representative of attitudes towards LGBTQ due to concerns over the mobilisation of respondents by various groups.
- Zhulkarnain Abdul Rahim: To ask the Minister for Communications and Information with regard to the recent REACH survey on attitudes towards LGBTQ (a) what are the considerations behind how the survey questions are structured; and (b) what is the usual process and typical timelines considered before the issuance of any surveys by REACH.
Answer:
1. REACH gathers feedback via multiple channels and from different segments of the community, so that all voices can be heard. Views collected by REACH are shared with relevant government agencies.
2. The channels employed by REACH include email, social media platforms, WhatsApp chatgroups and dialogues. One modality used by REACH is Listening Points (or LPs) – typically conducted in person or since the start of the pandemic, via online surveys. They solicit views from specific groups with questions designed accordingly. The findings from targeted LPs are therefore not taken as representative of the entire population. For more holistic understanding, they are complemented by other sources of feedback.
3. Members Mr Alex Yam and Mr Zhulkharnain referred to a Listening Point to solicit views from the LGBTQ+ community. Similar LPs have been conducted to hear views from communities such as rental flat dwellers, pre-release offenders, and gig economy workers. We have also previously partnered other communities including religious organisations, women and youth groups, to seek feedback on particular issues from their respective constituents.
4. Consistent with the approach taken for such targeted LPs, the LGBTQ+ LP was conducted online and the link was disseminated through LGBTQ+ groups. However, unlike in previous online LPs, the link was circulated beyond the intended audience, which led to a large number of responses within a short timeframe. REACH received more than 36,000 responses within a day or so for this LP; for comparison, other LPs that REACH conduct typically gather about 200 to 700 responses. As the LP platform is open to all, respondents can be from any nationality. But the majority of the feedback came from citizens and permanent residents, whose views are naturally the main focus for REACH and government agencies. Surveys based on representative samples that the Government commissions are of course restricted to the resident population.
5. REACH has received feedback about this LP, and acknowledges that it should be more careful when conducting LPs on issues where people hold sharply opposed and passionate views. REACH will learn from this experience to better engage Singaporeans on contentious topics in the future.
MPs table Parliamentary questions on Section 377A[edit | edit source]
For the Parliamentary session on Monday, 4 March 2022, PAP MP Yeo Wan Ling (Pasir Ris-Punggol GRC) submitted a question on what would be done to engage different groups when considering the best way forward regarding Section 377A. Non-constituency MP Hazel Poa of the Progress Singapore Party asked what the Government’s indicators were to monitor whether society was ready for repealing 377A and how these indicators were to be monitored[348].
Law Minister K Shanmugam responded by saying that "societal attitudes towards homosexuality have gradually shifted" since the subject was discussed in Parliament in 2007, adding that there were currently two main viewpoints on the issue and many subsidiary viewpoints[349]. "On the one hand, the vast majority of Singaporeans are of the view that heterosexual marriage between a man and a woman must remain the bedrock of our society. On the other hand, many Singaporeans, including some of those who believe in the traditional family structure, feel that private consensual sex between men should not be criminalised. We will consider the various views carefully, and assess the best way forward that tries to balance the different viewpoints."[350]
Even though NCMP Hazel Poa asked one of the questions, her party declined to take a stand on Section 377A.
Government sweetens ground for acceptance of repeal via mainstream media[edit | edit source]
- See also: PM Goh Chok Tong liberalises employment of openly gay individuals in civil service, July 2003
- See also: Archive of Time magazine article "The Lion in Winter" by Simon Elegant, 7 July 2003
In the lead-up to the official announcement that that Government intended to repeal Section 377A, a slew of LGBT-supportive articles were allowed to be published in the mainstream media. This was reminiscent of its actions in the prelude to Prime Minister Goh Chok Tong's announcement in 2003 that henceforth, openly gay workers would be employed in the civil service, which was one of the moves taken to pull Singapore out of the doldrums of the Asian financial crisis.
2022 Ipsos survey shows less than half of Singaporeans support 377A[edit | edit source]
On Thursday, 16 June 2022, market research firm Ipsos released the findings of a study which showed that less than half of people in Singapore supported Section 377A amid changing attitudes towards same-sex relationships[351]. The company polled 500 people on the topic of Section 377A and found that 44% of respondents supported the law, down from the 55% who did so in 2018 when a similar survey was done. Meanwhile, the segment of people who opposed the law had grown, with 20% of respondents against it then, compared with 12% in 2018. As for the remaining 36% of respondents, 32% said they neither supported nor opposed the law, while 4% preferred not to say.
For the study, Ipsos polled 500 Singaporeans and permanent residents aged 18 years old and above on various questions about same-sex relationships in an online survey between 25 May 2022 and 2 June 2022. Quotas on age, gender and ethnicity ensured the composition of respondents reflected Singapore's overall population distribution. Among the 44% who said they supported Section 377A, 21% strongly supported it, while 24% somewhat supported it. The numbers did not add up to 44% because of rounding. Meanwhile, among the 20% who opposed the law, 11% strongly opposed it while 9% somewhat opposed it.
Ipsos said that in general, Singaporeans had become more supportive of same-sex relationships in the past three years, especially young adults. In all, 45% of respondents said they had become more accepting of same-sex relationships compared with three years ago. When the results were broken down along age lines, 67% of those aged 18 to 29 years old said they had become more accepting, compared with 29% of those aged 50 years old and older. Melanie Ng, director of public affairs at Ipsos in Singapore, said: "Today, we continue to see a steady shift in societal attitudes, led by younger adult Singaporeans who are more ready to see the country embrace same-sex relationships. At the same time, while the older generation of Singaporeans remains largely opposed to same-sex relationships, we also see attitudes slowly changing."
The study also delved deeper into what the changing attitudes towards same-sex relationships might mean, and canvassed issues such as parenting rights and discrimination. It found that 49% of respondents agreed that same-sex couples should have the same rights to adopt children as heterosexual couples. And 51% also felt that same-sex couples were just as likely as other parents to successfully raise children. Meanwhile, on discrimination, 45% of respondents said they were willing to speak out against someone who was prejudiced against LGBTQ people. And 35% said they supported having laws that banned discrimination against LGBTQ persons in areas such as employment, education, housing and social services. Ng said the changing attitudes towards same-sex parenting and discrimination against LGBTQ people indicated a deeper awareness of the issues confronting the community. "This understanding and empathy paves the way for Singaporeans to better embrace diversity and embed inclusivity within the nation's social fabric," she added.
K Shanmugam's response to Stephen Sackur's questions on BBC's HardTalk[edit | edit source]
- See also: K Shanmugam's views on homosexuality
On Wednesday, 29 June 2022, Home Affairs and Law Minister K Shanmugam explained the Government's stance on Section 377A, among other issues, to British journalist and presenter Stephen Sackur in a 24-minute podcast episode of the BBC's HardTalk, billed as a programme where interviewees are asked hard-hitting questions[352],[353],[354],[355],[356],[357],[358].
Transcript:
Sackur: Now, let's move on from drugs. Another aspect of your social policy, and that is the fact that in Singapore, homosexuality is still defined as a criminal act. Now that's not saving lives. So, what on earth is the justification for that?
Shanmugam: The position in Singapore is that people engaging in gay sex will not be prosecuted. Even though there is this old piece of law which makes gay sex among males an offence, the Attorney-General has confirmed their position, and the Supreme Court has said that the Government's position has legal force. Why are we taking this approach? Because a significant proportion of our population, the middle ground as it were, don't want that law repealed. Attitudes are shifting somewhat, but still, governments cannot, the Singapore Government cannot ignore those views. So, we have arrived at this sort of messy compromise the last 15 years and we have taken this path because these issues are difficult. They are not easily settled. And we have made clear, LGBTQ+ (lesbians, gays, bisexual, transgender and queer) individuals are entitled to live peacefully without being attacked or threatened. We have in fact laws that protect the community.
Sackur: What is the message sent? What is the message sent to gay men in Singapore that you are not prepared to remove that section 377A of your criminal code, which quite explicitly says that gay sex between men is illegal? That simply encourages, does it not, a culture of shame and homophobia?
Shanmugam: As I said, you know, this is a compromise that we have arrived at, because of where our society is. And if you believe in a democracy, you've got to take into account where your main ground is. And let's face it, it's not as if others have solved the issue. A Supreme Court judge from the US suggested a few days ago that court decisions on legality of gay sex and same sex marriage may have to be reconsidered. But our approach (is) to deal with these issues in Parliament, and I've said earlier this year that we are relooking our laws, and our laws have to change and keep pace with the times. And in a Singaporean way, we are engaging in a wide set of consultations to try to arrive at some sort of landing.
Sackur: Minister, I'm listening very carefully to your words. They're very interesting. And if I say to you, say you know public mood and public opinion matters, I say to you that one of the leading polling agencies, Ipsos, in Singapore has found “a steady shift in societal attitudes led by younger adult Singaporeans, who are more ready to see the country now properly embrace same-sex relationships”. So, if that's the reality, are you saying to me that we can expect, in the near future, your government to actually strike off Section 377A and make it clear to gay men in Singapore that they can be open about their sexuality with no fear that anybody is going to regard them as criminal?
Shanmugam: There are two points. First of all, the Ipsos survey seems to us a little bit of an outlier in the context of other surveys, internal and public, that we have. At the same time, I did say to you that attitudes are shifting, but I'm not quite sure they are shifting as much as what Ipsos has said. The second point is, I said that we are in deep consultations with stakeholders, including LGBTQ+ community, as well as others. And you know, in a system of Cabinet responsibility, what we are going to do can only be announced once a decision is reached. I'm in no position to answer that question with finality at this point.
Lawrence Wong's responses to Bloomberg's questions on Section 377A[edit | edit source]
On Monday, 15 August 2022, Bloomberg Editor-in-Chief John Micklethwait interviewed Lawrence Wong who was then 49 years of age and Singapore's finance minister and premier-in-waiting. One of the issues he raised was Section 377A[359],[360].[361].
Transcript:
Micklethwait: Another issue with foreign companies which Nancy Pelosi did bring up is Singapore's Section 377A which is the one which criminalises sex between men. When is that rule going to go?
Wong: Well, that's something for Singapore and for Singaporeans to decide. It's something that we have been discussing. It's one of those issues that has to be managed, dealt with carefully, sensitively because it pertains to our social values and norms. And we have been doing this for a range of different issues, whether it's race or religion, or whether it's regarding sexuality. We know that these issues are issues where different segments of society hold deep, deep views and sometimes opposing views. And our way of addressing these sorts of issues is really to engage the different groups and see if we can work out some common understanding, some way of having mutual accommodation and compromise without causing deep polarisations and divisions in our society, or deeper polarisatians and divisions. So that's a process that we are are undertaking right now.
Micklethwait: Personally, you are a modern man, you've studied abroad, you've studied at Harvard, you're cosmopolitan. It must be very embarrassing having a law like that when you're trying to bring people to come to Singapore.
Wong: Sure, I mean we all understand the history and the reason why this law was in place. It's not something that the government in Singapore introduced. It was a legacy as a British colony and we know that over the years, many Asian countries which had this legacy as former British colonies have repealed the law. So we understand that but we also know that in Singapore, there are many segments who feel that it's not just about the law, but the law is a marker for other things, things that they care about, about society, societal values about family, about marriage. So it's not about the law per se about but these other things and that's why, as I mentioned just now, we are having this conversation even right now, engaging different groups and considering how best we might move forward in a way that will not cause deep divisions in our society.
Micklethwait: Does that refer, to put that in another way, that you personally seem in favor of the law going but you think you need to bring Singapore with you to do it.
Wong: Well, we will explain all that in due course like as I said just now, it's a live issue for us because we are in the midst of discussing and engaging different segments of society on this.
Micklethwait: ...which I know comes up a lot again with foreign companies but also anybody trying to hire people in Singapore, is this point about visas for same-sex spouses. If somebody is married to someone legally in most of the world or a lot of the world, they can't then, that spouse, them can't come to Singapore under the same visa, which Hong Kong does. Hong Kong is a best scenario. Hong Kong is more progressive than you are. Can you give any reassurance on that being changed?
Wong: We have seen some of their feedback for people who have faced difficulties with partners. I think we have been able to deal with some of their on a case-by-case basis but the broader issue, as I mentioned just now, and that's why the feedback you mention is an example of this, a broader issue is not about 377A, It's about how we organise ourselves as a society whether or not values around families, around marriage will be changed and that, those are the concerns that the larger segment of Singaporeans are concerned about. And that's why this engagement in this conversation that we're having now with these different segments of society are important.
Micklethwait: Do you have any evidence that most Singaporeans are against getting rid of the law or is it just a substantial minority is against it?
Wong: As I highlighted two issues, separate but sometimes conflated in people's minds, the law is one matter and views on the law and criminalisation of homosexual behavior certainly has evolved, has changed. But there are also views around family and marriage which is different from the first matter which I highlighted. Sometimes they are conflated but actually they are two separate matters. But people do feel strongly about the latter on family values and marriage, and as I mentioned just now, we will have to engage them and consider how best to move forward on this matter recognising that people in Singapore hold very strong views, and sometimes these are opposing views.
Response of religious groups to imminent official announcement of repeal[edit | edit source]
Email from Pastor Yang Tuck Yoong to church leaders[edit | edit source]
Protect Singapore Townhall[edit | edit source]
- Main article: Protect Singapore Townhall
Alliance of Pentecostal and Charismatic Churches of Singapore (APCCS)[edit | edit source]
Other religious institutions[edit | edit source]
PM Lee Hsien Loong's announces repeal of 377A and Constitutional amendment to protect current definition of marriage during National Day Rally Speech[edit | edit source]
During his National Day Rally speech on Sunday, 21 August 2022, Prime Minister Lee Hsien Loong announced that Singapore would repeal Section 377A, confirming months of speculation about the issue which had caused much polarisation. He also said that the Constitution would be amended to protect the current definition of marriage as between one man and one woman as although most Singaporeans did not want sex between men to be criminalised, they wanted the institution of marriage to remain heterosexual[362],[363].
Channel NewsAsia's report[364]:
Complete segment of National Day Rally speech on Section 377A[365]:
Transcript of speech[edit | edit source]
"Another concerns the treatment of gay people in our society under the law. By and large, Singapore is a traditional society, with conservative social values. We believe that marriage should be between a man and a woman, children should be born and raised within such families, the traditional family should form the basic building block of our society. Most Singaporeans would like to keep our society like this, and this is the Government’s position too. We have upheld and reinforced the importance of families through many national policies, and we will continue to do so. However, like every human society, we also have gay people in our midst. They are our fellow Singaporeans, they are our colleagues, our friends, our family members. They too want to live their own lives, participate in our community, and contribute fully to Singapore. We need to find the right way to reconcile and accommodate both the traditional mores of our society, and the aspiration of gay Singaporeans to be respected and accepted.
A major issue for gay Singaporeans is Section 377A of the Penal Code, which makes sex between men a criminal offence. It was originally introduced in the 1930s by the British colonial government. It reflected moral attitudes and social norms that prevailed back then. But over the decades, homosexuality has become better understood, scientifically and medically. In many societies, including Singapore, gay people have become more accepted for who they are, instead of being shunned and stigmatised. Many countries that used to have laws against sex between men have since repealed them, and they include several Asian countries, but so far not Singapore.
Parliament last debated whether or not to repeal Section 377A in 2007. MPs expressed strong views on both sides. I joined in the debate to advise restraint and caution. I acknowledged that what consenting adults do in private is their personal affair, and the Government should not intervene. But I pointed out that not everyone was equally accepting of homosexuality. Quite a few had considerable reservations, particularly within certain religious groups, including the Muslims, the Catholics and many Protestant denominations. The Government decided then that we would leave 377A on our books, but not actively enforce it. We stopped short of repealing the law. It would have been too divisive to force the issue then. It was better for us to live with this untidy compromise, and it was a practical way to accommodate evolving societal attitudes and norms in Singapore. The compromise didn't satisfy every group. But by and large, it has enabled all of us to get along. And so we have lived with this sensitive issue, without it monopolising our national agenda or dividing our society.
Now, 15 years later, attitudes have shifted appreciably. While we remain a broadly conservative society, gay people are now better accepted in Singapore, especially among younger Singaporeans. It's timely to ask ourselves again the fundamental question: Should sex between men in private be a criminal offence? Singaporeans still have differing views on whether homosexuality is right or wrong. But most people accept that a person’s sexual orientation and behaviour is a private and personal matter, and that sex between men should not be a criminal offence. Even among those who want to retain Section 377A, most don't want to see it being actively enforced, and criminal penalties applied. From the national point of view, private sexual behaviour between consenting adults does not raise any law-and-order issue. There is no justification to prosecute people for it, nor to make it a crime.
Furthermore, we've seen several court challenges to Section 377A, seeking to declare the law unconstitutional. None have succeeded, so far. However, following the most recent judgement in the Court of Apppeal, the Minister for Law and the Attorney-General have advised that in a future court challenge, there's a significant risk of Section 377A being struck down, on the grounds that it breaches the Equal Protection provision in the Constitution. We have to take that advice seriously. It would be unwise to ignore the risk, and do nothing. For these reasons, the Government will repeal Section 377A and decriminalise sex between men. I believe this is the right thing to do, and something that most Singaporeans will now accept.
[Applause]
This will bring the law into line with current social mores, and I hope, provide some relief to gay Singaporeans. 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. In our engagements and soundings over several months, this has come through very clearly. Among those with reservations, some feel strongly about 377A itself. But for most, their main worry is what they feel Section 377A stands for, and what they fear repealing it may quickly lead to. They also worry that this may encourage more aggressive and divisive activism on all sides. This is not only the concern of those with religious objections, but is shared by many non-religious people. Even many Singaporeans who support repeal want to maintain our current family and social norms. The Government understands these concerns. We too do not want the repeal to trigger wholesale changes in our society. We will maintain our current family-oriented approach, and the prevailing norms and values of Singapore society. Hence, even as we repeal 377A, we will uphold and safeguard the institution of marriage. Under the law, only marriages between one man and one woman are recognised in Singapore. Many national policies rely upon this definition of marriage including public housing, education, adoption rules, advertising standards, film classification. The Government has no intention of changing the definition of marriage, nor these policies.
However, 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. And this would happen not because Parliament passed any such law but as the result of a court judgment. And then, even if the majority of MPs oppose same-sex marriage, Parliament may not be able simply to change the law to restore the status quo ante. Because to reverse the position, Parliament may have to amend the Constitution, and that would require a two-thirds majority. I do not think that for Singapore, the courts are the right forum to decide such issues. Judges interpret and apply the law. That's what they are trained and appointed to do - to interpret the law, what does the law say, to apply the law, how does it work in this instance. But judges and courts have neither the expertise nor the mandate to settle political questions, or to rule on social norms and values. Because these are fundamentally not legal problems, but political issues. This has been wisely acknowledged by our courts in their judgments dealing with such cases. But even so, those seeking change may still try to force the pace through litigation which is, in its nature, adversarial. It would highlight differences, inflame tensions and polarise society. And I'm convinced this would be bad for Singapore.
We will therefore protect the definition of marriage from being challenged constitutionally in the courts. The legal definition is contained in the Interpretation Act and the Women’s Charter. We have to amend the Constitution to protect it, and we will do so. This will help us repeal Section 377A in a controlled and carefully considered way. It will limit this change to what I believe most Singaporeans will accept, which is to decriminalise sexual relations between consenting men in private. But it will also keep what I believe most Singaporeans still want, and that is to retain the basic family structure of marriage between a man and a woman, within which we have and raise our children.
[Applause]
What we seek is a political accommodation, one that balances different legitimate views and aspirations among Singaporeans. For some, this will be too modest a step. For others, it will be a step taken only with great reluctance, even regret. But in a society where diverse groups have strongly held opposing views, everyone has to accept that no group can have things all their way. If one side pushes too hard, the other side will push back even harder. And in some Western societies, not few, this has resulted in culture wars, contempt for opposing views, and not just for their views but for opposing people - cancel culture to browbeat and shut up opponents, and bitter feuds splitting society into warring tribes. There are some signs of similar things starting to happen here too.
I say, let us not go in this direction. All groups should exercise restraint because that is the only way we can move forward as one nation together. There's much more to be said on this difficult subject. I'm sure what I have said tonight will set off further reactions and discussions. And we will have a full debate when we bring the legislation to Parliament. But tonight, I wanted to set out our broad approach on this issue. We have a stable and generally harmonious society, and we will work hard to keep things like this. I hope the new balance will enable Singapore to remain a tolerant and inclusive society for many years to come."
Gov.sg posters[edit | edit source]
The day after Lee's speech, Gov.sg uploaded two public education posters to its Facebook page to summarise the forthcoming changes[366]:
Reactions to announcement of repeal of Section 377A[edit | edit source]
The LGBT community was elated at the official announcement of the imminent repeal of Section 377A, with the news being widely reported in the local mainstream and alternative media, as well the international media. Numerous non-LGBT organisations also issued statements regarding their opinion of the development while some platforms even recorded videos of panel discussions on the issue and uploaded them to YouTube. These reactions are voluminous and would increase the length of this article to unwieldy proportions, so they have been documented comprehensively in another main article entitled Reactions to PM Lee Hsien Loong's announcement of repeal of Section 377A.
Chan Sek Keong's analysis of Court of Appeal judgment[edit | edit source]
On 12 September 2022, former Chief Justice Chan Sek Keong published an article in which he incisively analysed the Court of Appeal's judgment. (The entire article in PDF format may be downloaded from Singapore Law Watch's website:[367].) Among Chan's startling propositions which contradicted the Court of Appeal's ruling were:
- The appellants had standing in the appeal, before and after the date of the judgment. In any event, the Court of Appeal had jurisdiction and could have addressed the constitutional question.
- The political compromise, whether or not packaged with the Attorney-General's representations, was not justiciable, and had no legal significance.
- The AG's representations were information, and not representations intended to engender legitimate expectations under the doctrine of substantive legitimate expectation (DSLE). In any event, requirements of the DSLE were not satisfied on the facts, and also on the law in that the DSLE did not apply to prosecutorial power. Furthermore, the Court of Appeal had no power to declare a subsisting law unenforceable.
- The courts were not bound under Section 9A(1) of the Interpretation Act to apply the Tan Cheng Bock v Attorney-General three-step framework to interpret Section 377A, and may refer to any relevant extrinsic evidence to interpret legislation under the common law.
- Section 377A, properly construed, did not criminalise penetrative sex punishable under the former Section 377 (repealed in 2007).
- The classification of male-male acts of gross indecency in Section 377A was under-inclusive in relation to the purpose or object of Section 377A, and accordingly Section 377A was inconsistent with Article 12(1) of the Constitution.
- If Section 377A was inconsistent with Article 12(1), it may be construed pursuant to Article 162 to conform to the Constitution in a manner that would safeguard public decency. If it could not be construed to conform to the Constitution, it remained an existing law that could not be enforced.
Panel discussion on Tan Seng Kee v AG and Section 377A[edit | edit source]
On Monday, 26 September 2022, a panel discussion with Home Affairs and Law Minister K Shanmugam on the implications of Tan Seng Kee v AG was co-hosted by the Singapore Academy of Law and the Law Society of Singapore. The forum was moderated by Professor Lee Pey Woan, dean of Singapore Management University's Yong Pung How School of Law, [368],[369],[370],[371],[372]. The following video is a combination of the reports filed by The Straits Times and Asia One[373]:
Full recording by Channel NewsAsia[374]:
Law academics and senior members of the legal fraternity said repealing Section 377A was the right move as there was a real risk of the law being struck down by the courts in a future legal challenge, and doing away with it through the democratic process in Parliament would be less messy. Also, the sheer existence of the law, even if it was not used, would continue to cause a societal rift between those who opposed the law and those who supported it.
In his opening address[375], Minister Shanmugam said that the apex court's decision in February 2022 suggested that Section 377A might be unconstitutional because the statute could violate Article 12 of the Constitution if a particular approach were taken to evaluate it. The court had also held that the three men who brought the case did not have locus standi, or standing, to challenge the law, since there was no real risk of prosecution under Section 377A. However, he noted that the court had limited itself to considering the lack of standing with regard to prosecution and not investigations by the police. This meant it was possible for the court to rule differently on the issue of standing in future, based on a different set of facts. Shanmugam also drew attention to the Court of Appeal's comments that politics seemed the more "obvious choice" than litigation for debating and resolving highly contentious societal issues. "Courts have said this is within the province of Parliament. That does not mean the courts are saying that they will not act. What they are saying is: 'We leave it to Parliament to go and do what is right'," he said. "In Singapore, things have worked because each branch does what is right and what is their duty. If there is a law in the books which is unconstitutional, what is the duty of Parliament? What's the duty of the Executive? To deal with it or to put on the helmet, go into the bunker and pretend that it doesn't exist because it's politically too divisive? That's not the way things work in Singapore. As such, one must do the right thing and not "duck". You don't say as other parliaments have said: 'Well, we leave it to the courts, hopefully they will deal with it.' If Parliament doesn't do what it has to do, then the courts will do what they don't want to do."
Agreeing with these points, Law Society president Adrian Tan and Singapore University of Social Sciences law school dean Leslie Chew said the judgment had made it quite obvious that there was a risk the law could be found unconstitutional in future. Tan pointed out that the Court of Appeal did raise "red flags", elaborating: "They were saying: 'Look, this time the legal challenge is not going to succeed. But next time, it probably will." He added that the broader question was how Singaporeans would prefer to effect change in society. When laws were changed through a litigious court process, it was messy and brutal with interconnected laws left hanging, but when they were changed through the democratic process in Parliament, related laws could be dealt with at the same time. Prof. Chew said the court was also not the best forum to decide on the extra-legal issues thrown up by the constitutionality of Section 377A, adding: "In Singapore, we... have not politicised many of our issues, and we should not because it really, properly belongs to the people, rather than the court, where at the end of the day, it's adversarial." He added that the outcome of cases was never certain, and things evolved, pointing out that the apex court was also not bound by its own decisions. "In our system ... it is your constitutional right to challenge. And if you look at the history of issues that have been thrown up by Section 377A, it dates back to somewhere around 2013, It has been a whole decade of every now and then, (there is) a challenge. So the risk is real," he emphasised.
National University of Singapore associate professor of law Jaclyn Neo said the Court of Appeal had significantly changed the test that it used to assess whether differential treatment of certain groups would violate the right to equal protection under the Constitution, adding that this had put Section 377A on more shaky ground. University of Hong Kong professor of law Michael Hor said that although the court had declared that the law could be used, it was only "half dead" and there were still other "zombie bits" that were "not quite dead yet". For instance, there may be other secondary offences such as abetment that may be predicated on the intention to commit offences under Section 377A, and it was not clear if these were bound by the current legal position. Prof. Hor also said "the societal and psychological damage" caused by the sheer existence of the law could not be ignored, and that it would continue to breed ill will against gay men and cause them to feel excluded and inferior.
During the panel discussion, Minister Shanmugam also touched on the decision to amend the Constitution to protect the definition of marriage, and emphasised that this was not a "compromise". "We're not in the business of compromises. We sat down and we looked at the Tan Seng Kee judgment and we asked ourselves: 'Where is our society?' And we also asked ourselves, 'What is fundamental in this society?'," he explained. "We said that the definition of marriage that exists today in the Women's Charter is something this Government is deeply committed to. And we believe that while many people will either not mind or will welcome the repeal of 377A, we don't think Singaporeans are ready for a major sea-change in the tonality of our society and the way our society is the day after."
In his remarks, Minister Shanmugam said the Government had four options to deal with Section 377A:
- do nothing
- amend the Constitution to prevent court challenges to Section 377A
- leave Section 377A alone and amend the Constitution to prevent court challenges to the definition of marriage, or
- repeal Section 377A and amend the Constitution to prevent court challenges to definition of marriage.
He said the Government had chosen to repeal the law and protect the definition of marriage, as it was the principled and right thing to do. He added that if Section 377A were struck down, the definition of marriage would likely be challenged, and the Government had assessed that society was not ready for such a sea change overnight.
Adrian Tan added that changing laws through the courts could be "messy", as most laws were interconnected. He explained: "There's basically two ways that society can change laws. There's a messy legalistic process, which is asking the court to review a law and there is a neat democratic process which is through the Legislature." He noted that litigation was an "appeal to law" rather than a consultative process, adding: "In a sense to me, the Tan Seng Kee case also puts a bigger question to Singaporeans: How do we want to effect change in society? Do we want to do it through our democratic process, or do we want to go to court and challenge laws that we don't like? When you change something through the court, it's quite brutal. The court is not probably going to say, when I strike down this law, I'm also going to look at 10 other laws that may refer to it. The court is just going to strike down that law, and then leave everybody else hanging. So my personal opinion is that that's a very messy way to effect change in society."
Prof. Hor asked why Section 377A and the definition of marriage were being treated differently, saying: "Section 377A might be struck down by the courts, so we repeal it first. Marriage definition might also be struck down by the courts, but we protect it... Why the different treatment?" He also suggested that "we should initiate public discussion on same-sex marriage", given that it was a "done deal" that the Government would repeal Section 377A. Elaborating on his point, he brought up what he said was a common argument against the recognition of same-sex marriage — that it would "somehow destroy the whole idea of traditional marriage", adding: "I just wanted to say that I don't buy that, because we do have different conceptions of marriage in existence already." Prof. Hor cited Muslim polygamous marriages as examples, questioning: "Why does that not destroy the monogamy of modern Muslim marriages? It hasn't yet. Both coincide, both accept, both tolerate, both include each other."
A relevant slide projected onto the background wall read:
The Marriage "Pasar Malam"
- 377A will be repealed.
- Because it is right vs because otherwise the court might strike it down?
- Unfortunate coupling with the proposed "marriage bargain"
- A constitutional ouster clause to prevent courts from reviewing the constitutionality of a marriage definition which excludes same sex marriage
- An ouster clause needed only if there is a strong enough case that the exclusion of same sex partnerships cannot be adequately/satisfactorily/legally/constitutionally justified
- What possible reason could there be to protect such a "suspect" provision? Political need to "compromise" vs the role of the law/ courts as a solution to "democratic dysfunction"
- The right thing to do:
- leave the Constitution alone.
- Initiate discussion on same sex marriage - dispassionately assess arguments for and against.
- The primary reason against - to preserve traditional marriage/family. In what way does same sex marriage/families undermine heterosexual marriage/families? We already have radically different conceptions of marriage - Muslim polygamy - why does that not destry or undermine non-Muslim monogamy?
In response to Prof. Hor's questions, Minister Shanmugam replied: "If Section 377A is a matter for Parliament, marriage is even more a matter for Parliament. If anybody wants to change the definition of marriage, if that's what Singaporeans want, somebody has got to organise themselves, put it on your manifesto, go into the general elections arguing that this is what you stand for, win the elections, change the law. That is how a democracy ought to work." He reiterated that the definition of marriage that exists today in the Women's Charter was "something that the government is deeply committed to", adding: "We believe that while many people would either not mind or would welcome the repeal of S377A, we don't think Singaporeans are ready for a major sea change in the tonality of our society, and the way our society is the day after." Shanmugam also pointed out Prof. Hor's arguments were one fundamental reason why many people who actually had a "live and let live approach" were opposed to the repeal of Section 377A because of the "further arguments" that may arise, such as the issue of the definition of marriage and adoption. He continued: "These are political issues, and this is why these matters ought to be dealt with in Parliament. This government is committed to this definition of marriage. We have given, in very clear terms, where we stand. The next Prime Minister has indicated where he stands, and his Cabinet stands. That's what we can say. And it will be debated in Parliament." Ending off his point, Shanmugam re-emphasised that "marriage is fundamental to our country". We believe that part of the reason Singapore is where it is, is because of the way our societal values have evolved, because of the importance we’ve placed on marriage, and we want to keep it."
At the end of the session, Singapore Management University professor of law Lee Pey Woan, who was the moderator, asked the audience of about 90 lawyers, law academics and students if anyone disagreed with the view that there was a real risk Section 377A could be struck down for being unconstitutional. The opinion was unanimous as no hand was raised.
Bills tabled to repeal 377A and amend Constitution to protect definition of marriage from court challenge[edit | edit source]
On Thursday, 20 October 2022, a Penal Code (Amendment) Bill to repeal Section 377A was tabled for its first reading in Parliament by Minister for Home Affairs and Law K Shanmugam, paving the way for the law to be struck off from the statute books[376],[377],[378],[379],[380]. At the same time, based on a parliamentary order paper released the day before, the Ministry of Social and Family Development introduced the Constitution of the Republic of Singapore (Amendment No. 3) Bill to modify the Constitution to protect the existing definition of marriage as being between a man and woman, and laws and government policies made on that basis, from being challenged in the courts on the grounds that it violated Article 12 of the Constitution. There were two laws that defined marriage in Singapore - the Women’s Charter stated that a marriage that was not between a man and a woman was void, while the Interpretation Act stated that a monogamous marriage was the union of one man and one woman[381].
The news was reported on Channel NewsAsia's "Singapore Tonight" bulletin at 10pm that night[382]:
The two tabled Bills would be debated together when Parliament sat on 28 November 2022, and then voted on separately. This was because repealing a law required just a simple majority of MPs, while any amendment to the Constitution had to be supported by at least two-thirds of MPs, excluding Nominated MPs.
The constitutional amendment, tabled by Minister for Social and Family Development Masagos Zulkifli, would come in the form of Article 156 on the Institution of Marriage, which would state in part (1) that the Legislature, that is Parliament, may, by law, define, regulate, protect, safeguard, support, foster and promote the institution of marriage. Article 156 (2) would provide for the Government and public authorities to protect and promote the institution of marriage in the exercise of their functions. The effect of these new provisions was that Parliament could define the institution of marriage and with the Government, could make policies on the basis of that definition. Examples of measures included public housing policies and financial benefits for married couples, as well as education and media policies that promote and safeguard the institution of marriage. Article 156(3) and 156(4) would protect laws defining marriage as a union between a man and a woman, and laws and policies based on such a definition, from being invalidated by the courts on the grounds that they violated Part 4 of the Constitution (Fundamental Liberties) which contained Article 12.
Examples of such policies included those on public housing, where married couples received financial benefits, as well as education and media policies that promoted and safeguarded the institution of marriage, said the Ministry of Home Affairs and the Ministry of Social and Family Development in a joint statement after the Bills were introduced. Should the amendment pass, any change to the heterosexual definition of marriage and laws made on that basis could only happen through Parliament and not through the courts. “Such issues should be decided by Parliament, where there can be a full debate that accounts for different perspectives and considerations, and is not tied to a binary (win-lose) decision like in the Courts,” the ministries added. They also noted that the Bill did not codify or enshrine the definition of marriage into the Constitution, a move that some Abrahamic religious groups had earlier called for.
Masagos reiterated the Government’s position that families were foundational to society in Singapore, and that the constitutional amendment was aimed at protecting the current definition and laws and policies that relied on this definition from a court challenge. “This significant amendment to our Constitution demonstrates our commitment for Singapore to be a pro-family society and build a Singapore made for families,” he said at a dialogue session with volunteers from social service agencies after the Parliament sitting.
Full text of Constitution of the Republic of Singapore (Amendment No. 3) Bill[edit | edit source]
(The original PDF may be downloaded from the Parliament of Singapore website:[383])
Constitution of the Republic of Singapore (Amendment No. 3) Bill
Bill No. 32/2022.
Read the first time on 20 October 2022.
A BILL
intituled
An Act to amend the Constitution of the Republic of Singapore.
Be it enacted by the President with the advice and consent of the Parliament of Singapore, as follows:
Short title
1. This Act is the Constitution of the Republic of Singapore (Amendment No. 3) Act 2022.
New Article 156
2. The Constitution of the Republic of Singapore is amended by inserting, immediately after Article 155, the following Article:
“Institution of marriage
156.—(1) The Legislature may, by law, define, regulate, protect, safeguard, support, foster and promote the institution of marriage.
(2) Subject to any written law, the Government and any public authority may, in the exercise of their executive authority, protect, safeguard, support, foster and promote the institution of marriage.
(3) Nothing in Part 4 invalidates a law enacted before, on or after the date of commencement of the Constitution of the Republic of Singapore (Amendment No. 3) Act 2022 by reason that the law —
(a) defines marriage as a union between a man and a woman; or
(b) is based on such a definition of marriage.
(4) Nothing in Part 4 invalidates an exercise of executive authority before, on or after the date of commencement of the Constitution of the Republic of Singapore (Amendment No. 3) Act 2022 by reason that the exercise is based on a definition of marriage as a union between a man and a woman.”.
EXPLANATORY STATEMENT
This Bill seeks to amend the Constitution of the Republic of Singapore.
Clause 1 relates to the short title.
Clause 2 inserts a new Article 156 relating to the institution of marriage.
The new Article 156(1) expressly enables the Legislature to legislate for the purposes of defining, regulating, protecting, safeguarding, supporting, fostering and promoting the institution of marriage. The new Article 156(2) similarly provides that the Government and public authorities may, in the exercise of their executive authority, protect, safeguard, support, foster and promote the institution of marriage. Examples of measures that could be taken under these provisions include housing preferences and financial benefits for married persons, as well as education and media policies that promote and safeguard the institution of marriage.
The new Article 156(3) and (4) seeks to protect the definition of marriage as a union between a man and a woman. In particular, the new Article 156(3) provides that nothing in Part 4 (fundamental liberties) invalidates a law (whether enacted before, on or after the date of commencement of the Bill) by reason that the law defines marriage as a union between a man and a woman or is based on such a definition of marriage. Examples of such laws include —
(а) section 12(1) of the Women’s Charter 1961, which provides that a marriage is void if the parties are not respectively male and female at the date of the marriage;
(b) section 96(1) of the Administration of Muslim Law Act 1966, which prohibits the solemnisation of a marriage under that Act unless the marriage satisfies the conditions for a valid marriage under Muslim law, which in turn requires a Muslim marriage to (among other things) be between a man and a woman; and
(c) laws that confer rights or benefits on or in relation to persons married under those enactments.
Similar provision is made by the new Article 156(4) in relation to the exercise of executive authority (whether the executive authority was exercised before, on or after the date of commencement of the Bill).
EXPENDITURE OF PUBLIC MONEY
This Bill will not involve the Government in any extra financial expenditure.
MHA & MSF joint press release[edit | edit source]
The same day, the following press release was published on the Ministry of Home Affairs website[384]:
First Reading of the Penal Code (Amendment) Bill and the Constitution of the Republic of Singapore (Amendment No. 3) Bill
Published: 20 October 2022
1. The Penal Code (Amendment) Bill and the Constitution of the Republic of Singapore (Amendment No. 3) Bill were introduced for First Reading in Parliament today.
(a) The Penal Code (Amendment) Bill will repeal Section 377A of the Penal Code 1871, which criminalises sex between men.
(b) The Constitution of the Republic of Singapore (Amendment No. 3) Bill will amend the Constitution to protect the current definition of marriage, as well as laws and policies based on this definition, from Constitutional challenge.
Penal Code (Amendment) Bill
2. The Prime Minister announced the Government’s plans to repeal Section 377A at the National Day Rally 2022. The Government had consulted various stakeholders extensively before coming to this decision. The impetus for the repeal are as follows:
(a) Attitudes towards homosexuality have shifted appreciably. While Singapore remains a conservative society, gay persons are now better accepted in Singapore, especially among the young. Most people accept that a person’s sexual orientation and behaviour is a private matter, and that sex between men should not be a criminal offence. From the national point of view, private sexual behaviour between consenting adults does not raise any law-and-order issues.
(b) Based on the recent Court of Appeal decision on Section 377A, there is a significant risk that the Courts will strike down Section 377A in a future challenge, on the ground that it breaches the equal protection clause in Article 12 of the Constitution. It would be unwise and irresponsible for Parliament to ignore this risk and do nothing.
Constitution of the Republic of Singapore (Amendment No. 3) Bill
3. Even with the repeal of Section 377A, most Singaporeans still want to maintain the current family and social norms, where marriage is between a man and a woman, and children are brought up in such a family structure. The Government supports this view, and has affirmed that it will uphold the current heterosexual definition of marriage and the family structure that arises from it.
4. Today, marriage is defined in our laws as a union between a man and a woman. Many of Singapore’s laws and policies are based on this definition (e.g. adoption, housing, education). However, the legal definition of marriage, and laws and policies based on that definition, can be challenged in the Courts on Constitutional grounds, just as Section 377A was.
5. As stated by the Prime Minister during the National Day Rally 2022, the Courts are not the right forum to decide on such important socio-political issues that are fundamental to society. Such issues should be decided by Parliament, where there can be a full debate that accounts for different perspectives and considerations, and is not tied to a binary (win-lose) decision like in the Courts. Hence, the Government will amend the Constitution to protect the heterosexual definition of marriage, and laws and policies based on the heterosexual definition of marriage, from a successful constitutional challenge.
Introduction of Article 156 (Institution of marriage) into the Constitution
6. The Constitution of the Republic of Singapore (Amendment No. 3) Bill will introduce a new Article 156 (Institution of marriage) in Part 13 of the Constitution.
7. Article 156(1) clarifies that Parliament has powers to make laws to define, regulate, protect, safeguard, support, foster, and promote the institution of marriage. Article 156(2) similarly provides that the Government and public authorities may, in the exercise of their executive authority, protect, safeguard, support, foster, and promote the institution of marriage. Examples of measures include public housing policies and financial benefits for married couples, as well as education and media policies that promote and safeguard the institution of marriage.
8. Article 156(3)(a) protects laws defining marriage as a union between a man and a woman from being invalidated by Part 4 of the Constitution (Fundamental Liberties).
9. Article 156(3)(b) and (4) similarly protect laws and policies based on a heterosexual definition of marriage from being invalidated for that reason by Part 4 of the Constitution. For example, the equal protection clause in Article 12 of the Constitution would not invalidate such laws and policies by reason that they are based on a heterosexual definition of marriage.
10. The Bill does not codify or enshrine the definition of marriage (i.e. as between a man and a woman) in the Constitution.
Ministry of Social and Family Development
Gov.sg Facebook page uploads public education videos on repeal of Section 377A[edit | edit source]
Also that day, the Gov.sg Facebook page uploaded three separate videos featuring graphics explaining why the Government was repealing Section 377A and the implications of the move[385],[386],[387],[388]:
Party whip to be enforced[edit | edit source]
Deputy Prime Minister Lawrence Wong had said previously that the People's Action Party would not be lifting the whip when Parliament voted to repeal S377A, which meant that MPs would have to vote according to the party's position. This followed calls by some quarters for the party whip to be lifted so that MPs can vote freely according to their conscience. Wong had said in August 2022 that repealing the law was a matter of public policy, given that the courts had already said the law would not be enforced, and that measures would be put in place so that doing so would not trigger further societal changes.
Reactions to tabling of Bills[edit | edit source]
Singapore Management University (SMU) sociology professor Paulin Straughan said the vast majority of Singaporeans were sympathetic to concerns of having Section 377A on the books, but they also continued to “valorise” the idea of marriage as between a heterosexual couple[389]. “Because of the sentiments here to uphold the definition of marriage as being between a heterosexual couple, I think that the vast majority of Singaporeans would probably find this middle ground comfortable for now,” she added. Most Singaporeans knew that the moves in Parliament were coming up since Prime Minister Lee Hsien Loong had announced them in August, and most would be fine with them, said National University of Singapore sociologist Tan Ern Ser. Dr. Mathew Mathews, the Institute of Policy Studies’ principal research fellow and head of social lab, noted that some people were concerned that Singapore would follow the path of other countries to legalise gay marriage after Section 377A was repealed. The constitutional amendment would provide the assurance that Singapore was not making such plans, he added. It provided safeguards that “such decisions will need to go through the political process where there is expectedly much negotiation, rather than be adjudicated through the courts, where matters tend to be decided in a binary, win-lose decision,” said Mathews.
Associate Professor of Law at SMU Eugene Tan said the moves should help reduce lawsuits on the constitutionality of laws and policies that were premised on marriage being a union of a woman and a man, while also facilitating the accommodation of differences in society here. He added that the constitutional amendment did not overreach, as it maintained the status quo on how marriage was defined and on laws and policies based on that definition. “This is very much aligned with the preference of most Singaporeans.” But there is no guarantee that culture wars would not happen, he cautioned. The topics of homosexuality and family continued to be divisive unless more conversations about them are had, said political observer Felix Tan from Nanyang Technological University. Extremists on both the conservative and liberal sides of these issues would not be satisfied with changes, and there was a stronger need for dialogue to understand each other’s concerns that goes beyond simply instituting laws, he said, adding: “These changes will have ramifications on civil society moving ahead. One can only hope that with this new law and the removal of 377A, it will reduce the propensity of all to denigrate each other’s beliefs; values and/or sexual orientation.”
Parliamentary debate over Bills to repeal 377A and amend Constitution to protect definition of marriage from court challenges[edit | edit source]
On Monday, 28 November 2022, a two-day debate began over the two Bills introduced in which a total of forty MPs, NCMPs and NMPs rose to speak on the issue.
Masagos Zulkifli's speech[edit | edit source]
Minister for Social and Family Development Masagos Zulkifli kicked off the debate by stating that there was a strong consensus in society that marriage should be between a man and a woman, with children born and raised within such families[390],[391]. Amendments to the Constitution to protect this definition from legal challenge would help uphold policies that reflect this consensus. These included public housing policies that gave preference to married couples, policies on adopting children, guidelines on what media content was acceptable, and what children were taught. For instance, the pre-school and primary school curriculum would not feature same-sex parents, and at older ages, the focus would be on treating everyone with respect and empathy, but not promoting same-sex relationships.
The amendment introduced a new Article 156 of the Constitution, which made clear that Parliament could act to define, regulate and protect the institution of marriage. It also allowed the Government and public agencies to safeguard, support, foster and promote marriage, which the law currently defined as between a man and a woman. Masagos noted that the PAP Government had been consistent in its strong support for the institution of marriage and the family through its policies and legislation dating back to the Women’s Charter in 1961. Various policies also reflected and reinforced this support for marriage and family. These included encouraging parenthood within marriage, not supporting same-sex family formation, and maintaining Singapore’s policy against planned and deliberate single parenthood, including via assisted reproduction techniques or surrogacy.
Likewise, what was taught in pre-schools and schools was based on marriage as between a man and a woman, and family as the basic unit of society. Higher age ratings applied for media content depicting non-traditional family units, such as same-sex families, and public libraries did not carry books that depicted such family units for very young children, he added. “Singapore’s public policy is and has always been to uphold heterosexual marriage and promote the formation of families within such marriages,” he said. “Consistent with this policy, an overseas same-sex marriage will, generally, not be accorded legal recognition in Singapore.”
However, just as there had been challenges to the constitutionality of Section 377A, there could also be challenges to laws and policies related to marriage. He cited examples from jurisdictions such as India to show how changes led by the courts could polarise society. “This Bill is what a responsible Government, carrying out its duty to the people of Singapore, would introduce. It allows the political process to balance different interests and perspectives and does not pass the buck to the court to rule on social issues which are best dealt with via parliaments,” he said. He acknowledged that many Singaporeans had written to the Government about the subject, and some had wanted to go further – by enshrining the definition of marriage in the Constitution.
“We understand that these calls come from a sincere belief in the sanctity of marriage and reflect a genuine worry that the institution of marriage might be changed in the future to include same-sex marriages.” But he added: “Elevating marriage to the same level as fundamental rights in the Constitution would not be appropriate.” He said that while marriage and family were the bedrock of society, to elevate marriage to the same level as fundamental rights would change the whole complexion of the Constitution. The definition of marriage was and would remain in the Women’s Charter, Interpretation Act and Administration of Muslim Law Act. “Importantly, this Government will not use our current super-majority in Parliament to tie the hands of the future generations,” he said. “Hence, the constitutional amendment will not prevent future governments, elected by the people, from amending the legal definition of marriage by a simple majority in Parliament, should they choose to do so.”
What was clear was that the definition of marriage and related policies should not be determined by the courts. “In fact, this constitutional amendment provides greater protection than today, not just for the definition of marriage, but also related policies.” Masagos also reiterated Prime Minister Lee Hsien Loong’s assurance that the Government had no intention of changing the definition of marriage, and Deputy Prime Minister Lawrence Wong’s assurance that it would not change this under his watch. Singapore must also continue to protect all individuals from scorn or harm, he said. “This includes homosexuals who are members of our society, our kith and kin. Homosexuals have a place in our society, and space to live their lives in Singapore.”
At the same time, religious groups could continue to preach about homosexuality according to their religious beliefs, but not instigate violence or intimidation towards others or a particular group. He also made clear that Singapore’s pro-family values and position were not a result of a majoritarian or religious approach. “It is one that we share in common as Singaporeans, and what this Government believes in and stands for,” he said. “It is how we have come so far and will enable our society to perpetuate and flourish in the future.”
K Shanmugam's speech[edit | edit source]
Home Affairs and Law Minister K Shanmugam delivered a lengthy speech in which he explained that consensual sex between adult men did not raise concerns about law and order and thus should not be looked at as a criminal issue[392],[393]. Furthermore, Section 377A of the Penal Code harmed gay people in Singapore and there was a clear risk of the law being struck down in the courts. If Parliament allowed this to happen, MPs would be avoiding their duty and the outcome would be worse for Singaporeans. “So I say, the time has come for us to remove Section 377A, because it humiliates and hurts gay people. Most gay people do not cause harm to others; they just want to live peacefully and quietly and be accepted as part of society the same as any other Singaporean.” He added gay Singaporeans do not deserve to be stigmatised for their sexual orientation. “To a gay person, even if Section 377A 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 bedroom, he is nevertheless a criminal. We have to ask: Is it fair that gays have to live in this way?”
He said this was not a situation that Singaporeans should accept, even if they personally disagreed with homosexuality. Even many of those who did not want the law to be repealed did not want it enforced. For this reason, the law should no longer be on the books and repealing it would make it clear that gay people were not criminals.
Shanmugam went through the legal arguments surrounding the decisions the courts made before making the point that allowing the courts to decide such a difficult societal issue would be an abdication of responsibility on the part of Parliament and could lead to a cascade effect of challenges to various policies. He explained that in Singapore's system, it was not the role of the courts to deal with such issues that needed Parliament's ability to build consensus and consider various points of view. “Court processes are adversarial by nature. Their decisions are binary – it is a zero-sum game; you either win or you lose. There is no middle ground, no balancing of competing interests. The courts cannot consider competing social norms and social consequences of their decisions.” Allowing Section 377A and even the definition of marriage to be changed through a court challenge could create a cascading effect affecting questions relating to media content, housing and other policies. Such changes through the courts were not in Singapore’s interests. To act in the best interests of society, the Government must move on this issue, given the legal analysis.
“We can look at the US to see how court decisions on such issues can seriously affect the fabric of society, divide the society and unleash partisan views on both sides of the divide,” he said. “If we have that in Singapore, our social fabric will fray.” He implored MPs to do what is expected of them and chart a path forward on the difficult issue. He also sketched the historical context behind the adoption of the law in Singapore, going back to its roots in 16th-century England. The law – which outlawed “any act of gross indecency with another male person” – was introduced in Singapore in 1938 when it was a British colony. But the roots of that law lay deeper and it was almost word-for-word a copy of a law from the United Kingdom. The law was passed in 1885, and its own origins were obscure. The Government had not been able to find any background on why the law was introduced, but it did find that the law was introduced at 2.30am, with few MPs present in the British Parliament, as a last-minute amendment to an entirely unrelated Bill meant to protect women and girls and suppress brothels. The UK began the process of decriminalising homosexual acts in 1967, completing it in 2003.
Shanmugam also spoke on the views on homosexuality held around the world, saying it remained a deeply divisive issue. Divisions could be seen even in religiously homogenous communities such as the global Anglican Church. Some churches in the United States and Canada were supportive of homosexuality, while other churches were not. The US was considered more accepting of LGBT people than many other countries, but remained internally split. Some Republican states such as Florida and Texas still had strong objections to LGBT rights and many believed that homosexuality was an abnormal lifestyle choice – a view that was espoused by the Republican Party of Texas. But other Republicans disagreed. He said: “The challenge is much greater for us in Singapore: We don’t have a single ethnic society, or a single religious denomination. It is not a matter that has a straightforward answer, but we will still have to try and find the right way forward for us as a society without tearing up our social fabric.” Globally, there was a general movement even in Asian countries towards the decriminalisation of homosexual sex. “In Singapore, we chart our own path based on what we believe is in our best interests.”
Touching on the debate about the law in 2007 in a review of the Penal Code, he said that Singapore society was now at a stage where it could accept a repeal of the law. “From our engagements, we see that most Singaporeans accept that sex between men should not be a crime.” The Government had made it clear to foreign governments and companies that these were political, social and moral choices for Singaporeans to decide and they should not interfere. In August, US politician Nancy Pelosi issued a statement when she was in Singapore asking business groups to support the LGBT community here, in response to which the Ministry of Home Affairs asked foreign businesses to be careful about advocating socially divisive issues in Singapore. He said: “To US politicians who feel strongly on such issues, they should first try to convince people in Texas and other such places before they issue statements about Singapore.”
Pritam Singh's speech[edit | edit source]
Leader of the Opposition Pritam Singh (WP-Aljunied) siad the repeal of Section 377A in the Penal Code “does not in any way signal the state’s hostility towards the family unit or religious freedom.” He expressed support for both the Penal Code and the Constitution amendment Bills. He also stated that he had lifted the whip for the Workers' Party MPs, to allow those not in favour of the repeal of 377A to “vote freely”. “What the repeal of 377A certainly does not signal is Singapore becoming a more liberal or permissive society. What it does is make room in our shared public space, for members of our common Singaporean family to not be discriminated against due to their sexual orientation,” said Singh. “Religious Singaporeans are free to maintain their beliefs about homosexuality, but this should not interfere with what is legal in our public sphere. Likewise, supporters of repeal have no business interfering with the private beliefs of religious Singaporeans.” He acknowledged that in singling out homosexuality between men, in particular, keeping 377A “appears to the LGBTQ+ community and not a small number of Singaporeans to be unjust and unequal”. However, repealing 377A would “no doubt cause anxiety, if not outrage, amongst Singaporeans who believe that our laws must also reflect cultural or religious attitudes towards homosexuality”, he added. “The reality of our political culture, which leans towards conservatism on social issues, is that such concerns cannot be summarily ignored or dismissed.”
He saw the decision to protect marriage from constitutional challenge as an institution between men and women only, through a “very narrow lens” – it “represents a balancing exercise to ensure that society doesn’t fray over the decision to repeal 377A”. He hoped that Singaporeans who were against the repeal of 377A could approach the issue, despite their personal beliefs and religious convictions, through “the lens of compromise and accommodation”. “In repealing 377A, religious Singaporeans are not asked to endorse homosexuality, but to instead honour the equality of all Singaporeans in the eyes of the law, that no consenting adults should be regarded as criminals because of what they do in private. Equality and justice – both stars in our flag – are plenty and bountiful. Unlike finite resources, we do not have less of either by extending it to our fellow citizens. We all gain from a more just and equal society."
Singh noted that in 2019, he had stated his party's position on 377A was similar to that of Singapore as a whole in a speech to the National University of Singapore Political Association. "It was varied and diverse, with no consensus as to whether 377A should be repealed," he said. In that same speech, he said the LGBTQ community "should not be exploited for political points". "At that time, I believed there was more to consider than deciding which was the ‘right’ side in this matter, particularly in a society which generally eschews hosting open and frank conversations on difficult matters in the public realm," he said. "Against this political culture and backdrop, the Workers’ Party neither took up the cause of LGBTQ+ rights, nor stood against it. I still believe that had the Workers’ Party openly supported a repeal of 377A, it would not have been good for Singapore politics. More crucially, it would not have served the interests of the LGBTQ+ community."
On issues of "great social division and contending values", we "do not need politicians to be seen as siding with particular groups", added Singh. He also told the House that WP MPs had “different views” on a repeal of 377A in their individual capacities, and as such, he had lifted the whip on this issue, allowing WP MPs to vote freely. He would not usually lift the whip for Parliamentary debates, and noted that the People’s Action Party was not lifting the whip for this debate. “Given the varied public opinion on the impending repeal of 377A, there is a risk that the democratic value of Parliament could be diluted if the views of Singaporeans on this subject are not adequately ventilated in this House,” he said. “Not lifting the whip would deny WP MPs not in favour of a repeal of 377A the opportunity to vote freely and in doing so, to also represent Singaporeans who see this issue as a matter of deep religious belief and conscience.”
In lifting the whip, Singh asked all WP MPs who would speak on the matter to “carefully reflect on the position they take and to envision a set of principles or perspectives from which society as a whole, with its different views, can move forward”. MPs Faisal Manap (WP-Aljunied) and Louis Chua (WP-Sengkang) were not present for the debate on Monday as they were COVID-19 positive, he informed. Faisal disagreed with the repeal of 377A as “a matter of religion and conscience”, while Chua agreed to a repeal.
Speeches by other opposition MPs[edit | edit source]
Workers' Party MPs Dennis Tan (Hougang GRC) and Gerald Giam (Aljunied GRC) also said during their speeches that they did not support repealing 377A. Giam supported the amendment to the Constitution Bill. Dennis Tan did not support the repeal of 377A, citing his own conscience as guided by his faith and beliefs. "This is both a most difficult decision and it's the most difficult speech I have (had) to make to date, given the divided issues at play for different segments of my constituents and for Singaporeans. Being very careful not to cause hurt or offence and yet having to be principled with my own beliefs," he said. "It is also not made easier because, like many fellow MPs and Singaporeans, I also have many friends and good friends who are from the LGBTQ community," he added. "And some have over time shared with me some of their very difficult circumstances and experiences in life, which makes my decision today even more difficult and humbling. I humbly seek their understanding." Nonetheless, Tan said his position did not change how he treated his constituents and Singaporeans, and that he would continue to serve his constituents to the best of his ability.
Similarly, Gerald Giam said he did not support the repeal of 377A, but he would support the amendment to the Constitution Bill. "My sincere belief is that retaining Section 377A without enforcing it provides the best balance of the conflicting interests in our society," he said. "It is important to me and the example that I set for my children that I hold fast to the values that I've established to be true without wavering because of political headwinds." Even though some people, especially those in the LGBT community, and many of Mr Giam's friends, residents, party members and volunteers may strongly disagree with his position, he hopes that they will "accept that these are my sincerely held values", which he is "trying my best to uphold". "My vote is not an attack on their values nor a diminishing of their humanity in any way," he added. "Some have criticised me for allowing my faith to inform my vote in Parliament, arguing that the two should be kept separate. However, what one member, informed by their faith and conscience, believes to be in the best interest of the country in some issues, may differ from what another member believes. This issue is certainly one of them."
On the other hand, Workers' Party MP Sylvia Lim (Aljunied GRC) supported repealing 377A, but said she would cast a vote of abstention on the Constitution Amendment Bill. Lim, whose main areas of interest as a lawyer include constitution law, said she understood that the proposed amendments to the Constitution Bill via Article 156 were "an attempt at a quid pro quo" for the repeal of 377A in the Penal Code. She added that she appreciated the difficulties the Government has in navigating this issue, and understands the signal the Government wishes to send. However, Lim expressed concern about "whether the carve-out of judicial oversight on the institution of marriage will set a precedent for future carve-outs, even if this is not the intention today". She clarified that she was not advocating for gay marriages, but whether it is "justified to exclude judicial scrutiny on this topic". "The Constitution is the fundamental legal safeguard of citizens, to protect them against illegal laws and policies that violate the Constitution. And it is the job of the Courts to assess whether any law is constitutional or not," said Lim. "It is not the same thing to say that the courts are intervening in a political sphere when they are doing their constitutional duty. This Bill today seeks to exclude the courts from reviewing the constitutionality of laws and policies concerning marriage."
Speeches by non-constituency MPs[edit | edit source]
NCMP Hazel Poa from the Progress Singapore Party (PSP) said her party was able to come to a compromise and support the repeal of 377A, despite members having differing views. But the PSP's position on the definition of marriage was that it "should be decided via a national referendum rather than by Parliament". "This will allow the many Singaporeans who have expressed concerns to have a say in this matter," she said.
President Halimah Yacob assents to Bill to repeal Section 377A[edit | edit source]
On 27 December 2022, President Halimah Yacob assented to the Bill that proposed the repeal of Section 377A and it was officially struck off the statute books[394]. At the same time, changes to the Constitution to protect the extant definition of marriage as a union between a man and a woman from legal challenge came into force, according to notices published on the government e-Gazette website on Tuesday evening, 3 January 2023.
See also[edit | edit source]
- Singapore gay history
- Singapore gay equality movement
- Lee Kuan Yew's views on homosexuality
- Archive of "Parliamentary debate on Penal Code (Amendment) Bill, 22 Oct 2007"
- Archive of "Parliamentary debate on Penal Code (Amendment) Bill, 23 Oct 2007"
- Archive of parliamentary debate on Section 377A, 22 & 23 October 2007
- Archive of Court of Appeal judgment in Tan Seng Kee v AG and other appeals, 28 February 2022
- Archive of Court of Appeal judgment in Lim Meng Suang & Tan Eng Hong v AG, 28 October 2014
- Archive of High Court judgment in Lim Meng Suang & another v AG, 9 April 2013
- Archive of High Court judgment in Tan Eng Hong v AG, 2 October 2013
- Archive of Court of Appeal judgment in Tan Eng Hong v AG, 21 August 2012
- Archive of judgment of High Court judge Lai Chiu Siu, 15 March 2011
- Archive of "“Abominable Type of Vice” Rife In Singapore", Singapore Free Press and Mercantile Advertiser, 28 March 1941
- Archive of "STAFF OFFICER ON TRIAL IN POLICE COURT", Singapore Free Press and Mercantile Advertiser, 16 January 1941
- Archive of ""NO DOUBT WHATEVER" OF STAFF OFFICER'S INNOCENCE", Singapore Free Press and Mercantile Advertiser, 17 April 1941
- Archive of talk, "Gay Law: Emancipation And Emasculation" by Lim Wee Kuan, 1 October 2002
- Archive of "A heftier list of s.377A cases", Mohan Gopalan, May 2007
- Section 354 of the Singapore Penal Code
- Section 294A of the Singapore Penal Code
- Sub judice in Singapore law
References[edit | edit source]
- Section 377A of the Penal Code on Singapore Statutes Online:[395].
- https://www.straitstimes.com/singapore/politics/unpacking-the-issues-around-section-377a
Further reading[edit | edit source]
- Don Ho Jia Hao, "The Endgame of Section 377A Litigation: Case note on Tan Seng Kee v Attorney-General [2022] SGCA 16", SMU Lexicon, May 2022[396],[397].
- George Baylon Radics, "Challenging antisodomy laws in Singapore and the former British colonies of ASEAN", Journal of Human Rights, Volume 20, 2021 - Issue 2: ASEAN and Human Rights Governance[398].
- "377A Was Introduced Because Of Racism, Not Homophobia", Rice Media, 12 January 2021[399].
- Jack Tsen-Ta Lee, "377A: What does it really constitute?", MARUAH, 31 January 2015[dotcom.sg/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&uact=8&ved=0ahUKEwjmoP3sj4nPAhXSth4KHeGGDfQQFggfMAE&url=https%3A%2F%2Fmaruahsg.files.wordpress.com%2F2015%2F01%2F20150201-s377a-maruah.pdf&usg=AFQjCNErQus_0VbXAJypjs50kXUXdKdw_g&sig2=B4EThDiREdC_A2lqNDQChg&bvm=bv.132479545,d.cGc].
- Jack Tsen-Ta Lee, "Equality and Singapore’s First Constitutional Challenges to the Criminalization of Male Homosexual Conduct", School of Law, Singapore Management University, 1 June 2015[dotcom.sg/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&cad=rja&uact=8&ved=0ahUKEwjmoP3sj4nPAhXSth4KHeGGDfQQFgglMAI&url=http%3A%2F%2Fink.library.smu.edu.sg%2Fcgi%2Fviewcontent.cgi%3Farticle%3D3477%26context%3Dsol_research&usg=AFQjCNEPhYMEwUJmrJCGKsECJW-Kbbjasg&sig2=GSrv_MTGueFdqMuyaud5dA&bvm=bv.132479545,d.cGc].
- Tham Lijing, "377A: Law and Morality", Law Gazette, January 2015[400].
- George Radics, "Section 377A in Singapore and the (De)Criminalization of Homosexuality", Reconstruction Vol. 15, No. 2, 2015[401].
- Sudhir Thomas Vadaketh, "On S377A and gay rights in Singapore", "Musings from Singapore" blog, 13 June 2014[402].
- George Baylon Radics, "Decolonizing Singapore's Sex Laws: Tracing Section 377a of Singapore's Penal Code", Columbia Human Rights Law Review, Vol. 45, No. 1, 2013, 15 December 2013[403],[404].
- Chen Jianlin, "Singapore's Culture War Over Section 377A: Through the Lens of Public Choice and Multi-Lingual Research" Law & Social Inquiry 38.1 (2013): 106-137[405],[406].
- Alex Au, (March 2011). "High Court waves away 377A controversy". Yawning Bread. [407]
- Alex Au, (March 2011). "When you should vote PAP". Yawning Bread. [408]
- Chen Jianlin, (1 October 2010). "Singapore's Culture War Over Section 377A: Through the Lens of Public Choice and Multi-Lingual Research". Social Science Research Network.[409]
- Prof Lakshmi Penna, "Homosexual acts: Indian law differs from Section 377A of Penal Code here", Straits Times forum, 8 July 2009[410].
- Ted Young, (24 October 2007). "Our Time Has Come". Trevvy. [411]
- Douglas Sanders, (October 2007), (PDF). "377 – and the unnatural afterlife of British colonialism". Fridae. [412]
- Alex Au, (May 2007). "Why Section 377A is redundant". Yawning Bread. [413]
- Mohan Gopalan, (May 2007). "A heftier list of s. 377A cases". Yawning Bread. [414],[415]
- Douglas Sanders (30 March 2007). "The mystery of 377". Fridae.[416]
- Alok Gupta, (November 2006). "Section 377 and the Dignity of Indian Homosexuals". The Economic and Political Weekly.[417],[418]
- Alex Au, (March 2005). "The picture that emerges". Yawning Bread. [419]
- Alex Au, (March 2005). "List of Section 377 and 377A cases". Yawning Bread. [420]
- Alex Au, (January 2004). "The blowjob that blew down our oral sex law". Yawning Bread. [421]
- Lynette Chua J. Kher Shing (2003). "Saying No : Sections 377 and 377A of the Penal Code". Singapore Journal of Legal Studies: 209–261.
- https://www.straitstimes.com/opinion/section-377a-set-for-repeal-has-an-800-year-history
External links[edit | edit source]
- Repeal377A.com – campaign for the repeal of Section 377A of the Penal Code:[422]
- Singapore Daily page on 377A – collection of blogger postings on Section 377A of the Penal Code:[423]
- A YouTube playlist of all archived news clips relating to Section 377A by Roy Tan:[424]
- List of documents relating to LGBT rights in Singapore on the International Gay and Lesbian Human Rights Commission (IGLHRC) website:[425]
Acknowledgements[edit | edit source]
This article was written by Roy Tan.