COMMENT: Section 377A has no place in secular Singapore

For many years, the law that criminalises sex between men has been a lightning rod in Singapore, engendering deep divisions within various segments of society. But as attitudes towards Section 377A of the Penal Code evolve, the authorities appear to be hinting at a shift in their longstanding position for the law to remain in place as a “messy compromise”.

S377A is a piece of archaic legislation dating back to the colonial era that has no place in any progressive society. Prime Minister Lee Hsien Loong will deliver his National Day Rally speech this Sunday (21 August), and some political observers say he is expected to talk about the law and societal perceptions of it.

From a legal standpoint, S377A is an aberration as it functions purely as a “moral marker”, rather than a law for which its prescribed punishments apply to any violation. By stating consistently that S377A is not actively enforced, the authorities may have created a dilemma by signalling to independent police investigators and public prosecutors (PPs) that they are obligated not to investigate individuals for potentially flouting the law.

Several top legal minds in Singapore, such as former Attorney-Generals (AG) Walter Woon and V.K. Rajah, have said that S377A is a constitutional quagmire. In a commentary in the Sunday Times in 2018, Rajah argued that “from a legal point of view, the assurance given in Parliament that Section 377A although not repealed will not be enforced, is constitutionally unsatisfactory". Similarly, Woon, who is currently a National University of Singapore law professor, wrote in an online post then, "We cannot have a crime which is not enforced. The government should not tell the public prosecutor that some things are crimes but there will be no prosecution."

In response, AG Lucien Wong said that the comments by his predecessors 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".

Varying degrees of “sins”?

Many individuals and groups who are against homosexuality argue that an absence of a law to signal societal disapproval would trigger a cascading slippery slope of other sexual ills.

But there are several fallacies in their core argument. Why have they targeted attempts to repeal S377A, which is applicable only to sex between men, but not sex between women? Why have they not proposed to their Members of Parliament to push for a law against sex between women? Is sex between women perceived by them to be a lesser “sin” than that between men?

And is sex between men also an ill greater than other sexual practices such as adultery, sex outside marriage or swinging sex parties? If the latter practices are considered by these individuals and groups to warrant reproach in equal measure as gay sex, why are they not campaigning for similar laws like S377A?

Clearly, there is a line to be drawn between what is a sin according to religious dogma, and what is a crime in any lawful society. Just as lesbianism, adultery, and sex outside marriage involving consenting adults are not punishable under the law in most countries including Singapore, sex between men should likewise be accorded the same treatment here. It is preposterous to view S377A as a marker for societal values when none exists for the other “sins”.

Believers’ actions against S377A

It is worth reminding that no religious organisations can impose their belief systems on secular Singapore. The boundary separating the state and religion must remain inviolable.

Just as many Singaporeans are free to follow their different religious beliefs, they should also respect those who do not share their values. The Association of Women for Action and Research (AWARE) saga in 2009 is a stark reminder of the potential perils when this space is transgressed, after a group of conservative Christians attempted but eventually failed to take over the organisation due to what they perceived to be its pro-gay agenda.

PM Lee spoke about the issue in his National Day Rally speech in 2009. He said, “But what worried us was that this was an attempt by a religiously motivated group who shared a strong religious fervour to enter civil space, take over an NGO it disapproved of and impose its agenda. And it was bound to provoke a push back from groups who held the opposite view which happened vociferously and stridently as a fierce battle."

A recent townhall meeting involving many individuals from various religious groups had called for S377A to be retained and the protection of heterosexual marriages and families from the supposedly negative impact of LGBT activism, triggering a rebuttal from the Association of Women for Action and Research (AWARE).

S377A has come to exemplify the chasm between rigid believers on one side, and civil activists and other segments of society on the other side. While its repeal may not narrow their differences, it can help cool tensions between them and remove a divisive issue for either side to rally around.

Similarly, the debate over S377A cannot be simplistically argued as a divide between “conservative” Asia and “liberal” West. A number of Asian countries such as China, Japan, India, South Korea, Thailand, Vietnam and the Philippines do not have laws against gay sex between consenting adults while Singapore remains among a minority of United Nations members with such a law in place.

Time for unity

S377A is an unconstitutional relict of the past, with no place in today’s Singapore. Over 57 years of its independence, Singapore has either passed new legislation or removed some laws enacted during the colonial era – it is high time that S377A is added to the latter list.

There has been talk of providing safeguards to heterosexual marriages by enshrining them through an amendment to the Constitution if S377A were to be repealed, as proposed by the Roman Catholic Archdiocese of Singapore and other religious organisations.

If undertaken, it will be a major step towards transforming a “messy compromise” to a harmonious compromise between not just believers and the LGBT community, but also among those with divergent views on the law.

A repeal of S377A can send a powerful signal to the rest of the world that Singapore practises what it preaches about secularism as one of its core pillars. Only when the law is removed can Singapore progress towards being a truly inclusive country that embraces individuals of all backgrounds, including those of diverse sexual orientation and gender identities.

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