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Everything to Know About Section 377A, The Unenforced Law That’ll be Removed Soon

2022-08-22 , 12:59 pm

In the “Outrages on decency, Section 377A” of the Singapore Penal Code, the law reads, “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.”

The law was introduced in 1938 under British colonial rule, and it criminalises sex—penetrative or not—between consenting male adults.

Given that society has began to accept the existence of the lesbian, gay, bisexual, transgender, queer (LGBTQ) community more, you can imagine that the antiquated and unenforced law stepped on quite a few toes.

If there was a drinking game where you have to take a shot every time you hear the phrase “Section 377A” in a debate on choice behind closed doors and the right to love, we would all be one foot into the door of alcohol poisoning.

What Was Section 377A Derived From?

As one might expect, Section 377A of the Singapore Penal Code was interpreted from Section 11 of the Criminal Law Amendment Act of 1885, otherwise known as the Labouchere Amendment.

The key difference between the old United Kingdom’s version and Singapore’s is that the former prosecutes male homosexuals as a whole, regardless of whether actual sodomy was involved, whereas the latter only criminalises the act of intercourse.

It is also where the term “gross indecency” originated from, but because the phrase remained undefined, and thereby vague, the amendment has allowed juries, judges, and lawyers to guilt virtually any male homosexual behaviour.

It essentially serves as a conspiracy charge that exposes the defendant to a broader pool of convictions.

Section 11 has also been aptly dubbed by lawyers of the past as the “Blackmailer’s Charter”.

Additionally, it is undeniable that it was a targeted attack against male homosexuals—especially since the hysteria over homosexuals were at its peak in the 1880s—as the amendment explicitly stated “any male person”, thus ignoring any lesbian activity.

Section 377A in Singapore History

For what little it is worth, Section 377A has not been actively enforced for the past 15 years.

Nonetheless, the LGBTQ community have been fighting to get the law repealed for a long time, and the topic was officially brought up in parliament in 2007.

Although the vote to repeal the colonial-era law failed that year, it definitely helped to shed more light on the reasons and arguments from both sides.

Furthermore, while it was decided that Section 377A would stay in the books, the law was rendered redundant as it became de facto not enforced.

In the words of Prime Minister Lee Hsien Loong in 2007, he thought it was best to maintain the status quo and simply “accept the legal untidiness and ambiguity”.

Ergo, the society back then was far more conservative and traditional (gay marriage was only legalised in the US in 2008) and it is not ready for the changes that repealing Section 377A might bring. However, the judicial system will close one eye to whatever happens behind closed doors, so be discreet about your affairs.

On 28 February 2022, this stance was openly reaffirmed by the Court of Appeal of the Supreme Court of Singapore, who declared that Section 377A cannot be used to prosecute men for having gay sex.

Arguments from the Supporters

For those who want to repeal Section 377A, their motive boils down to equality.

Article 12 of the Constitution of Republic of Singapore guarantees to all persons equality before the law and equal protection of the law.

By criminalising gay sex, it inherently stigmatises gay man and perpetuates the discrimination against them in all levels of society, whether it is in schools, workplaces, healthcare, or the media.

Moreover, what is the point of having a codified law if it is never going to be enforced?

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Hence, supporters believe that it should be done away altogether.

Critics of Section 377A also argue that it violates Article 9 of the Constitution of Singapore, which guarantees all persons the right to life and the right to personal liberty.

Rebuttals from the Opposition on Section 377A

For the naysayers, their primary concern is what kind of implications the repealing of Section 377A will have the covenant of marriage.

In the Women’s Charter, marriage is defined as a union between a man and woman, voluntary and monogamous.

To be more precise, naysayers worry that it will affect Section 12(1), which states, “A marriage solemnised in Singapore or elsewhere between persons who, at the date of the marriage, are not respectively male and female is void.”

It explicitly writes that marriage must be heterosexual, and it can only involve two people, so that cancels out polyamory as well.

The opposition fears that the repeal will trigger a “drastic shift” in Singapore’s societal norms, like the definition of marriage, what is taught in school, and what is broadcasted on television and in cinemas.

The change might encourage more confrontational and divisive activism, which may cause a spike of religious objections, or harsh rejections from people who are against homosexuality as a principle.

In fact, on 23 July, more than 1,200 people gathered in Protect Singapore Townhall to call for Section 377A to be retained and for the definition of marriage to be protected.

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The Government’s Current Stance on Section 377A

In the beginning of 2022, the parliament saw a cautious shift in stance.

On 3 March 2022, the Minister for Law and Home Affairs K Shanmugam delivered a speech where he questioned the relevance of the controversial Section 377A in this day and age.

The Government acknowledges that there has been a gradual change in societal attitude towards homosexuality, and as a natural consequence, the legislation needs to change to keep up with the times.

Shortly thereafter, a LGBTQ survey was launched to gather the responses of the public regarding their attitudes towards the LGBTQ community.

Once more, the question of whether people supported or opposed the repealing of Section 377A was asked.

Although the survey results have yet to be released, PM Lee said in his National Day Rally Speech (NDR) on Sunday (21 Aug) that Section 377A will be revoked.

In the weeks prior, cabinet ministers have been consulting prominent religious and community figures, as well as LGBTQ rights advocates on the most optimal way to remove Section 377A while keeping the laws that define traditional marriage intact.

He hopes that this will lead to more respect and acceptance towards gay Singaporeans, while attempting to “reconcile and accommodate” the traditional and the liberal and younger generation more.

Additionally, the government may be amending the Constitution to safeguard the definition of marriage, to ensure that it cannot be challenged constitutionally in courts.

The Definition Importance of Marriage

As the late Lee Kuan Yew would like to preach, traditional families are the building blocks of society.

Marriage should be between a man and a woman, children should be raised within such traditional unions— you know, the typical hetero-nonsense.

In all likelihood, this standard will never change.

Many national policies hinge on this definition of marriage, including and notwithstanding housing, education, adoption rules, film classifications, and broadcasting standards, PM Lee explained.

Hence, it is necessary to protect the definition of marriage, one that recognises marriages between that of a man and a woman.

In amending the Constitution to recognise the standard marriage definition, it would prevent those who are proponents of change from trying to “force the pace” of progress through litigation.

After all, one cannot argue that Section 12(1) is unconstitutional and contravenes Article 9 and 12, if the Constitution itself states that only heteronormative marriage is recognised.

PM Lee elaborated, saying same-sex marriage is not a legal issue but a political one.

Judges are supposed to interpret and apply the law; they are not invested with the mandate, nor are they meant to settle political questions, or decide what acceptable social norms and values are.

The Government believes that protecting the definition of marriage in tandem with repealing Section 377A will mitigate most of the unwanted effects, and also achieve progress in a “controlled and carefully considered way”.

PM Lee hopes that the decriminalising of sexual relations between mutually consenting men behind closed doors will bring the LGBTQ community a measure of relief.

Seriously, it’s rather odd that one even has to be wary of possible repercussions just for having sex.

Amending the Constitution

Making amendments to the Constitution isn’t an endeavour taken lightly, and it requires a two-third majority for the motion to pass.

Presently, the People’s Action Party (PAP) holds 83 seats out of 94 seats.

The section option that the government could employ is to incorporate a shielded provision, wherein an article is designed to prevent certain actions, like the propagation of hostility between different races, from constitutional challenges.

Getting a shielding provision is much easier, as it requires a majority vote.

Besides that, another problem with codifying the definition of marriage into the Constitution is that the Constitution represents and declares fundamental liberties which uphold certain basic rights that everyone should be afforded in a democracy.

The Constitution is the baseline of protection for everyone.

However, any definition of marriage would not be directly related to these matters, and this would mean that the Constitution is taking up a role that it did not originally possess.

Although the LGBTQ community has no intention to challenge the definition of marriage (yet), they strongly urge the government to ignore the calls to enshrine the definition of marriage into the Constitution.

The LGBTQ community is of the opinion that such a decision would “undermine the secular character” of Singapore’s Constitution, thus deepening the discrimination through its codification into supreme law, and later tie the hands of future political leaders.

On the other side, the naysayers are concerned that people may constitutionally challenge the laws of marriage by repeating the argument that it does not adhere to Article 12 of the Constitution.

For example, if the Constitution states that every person should have equal rights, why is same-sex marriage not allowed, especially when marriage plays an important role in national policies?

One could argue that they are being deprived of their privileges, or placed at a lower playing field, simply for their natural and inherent choice of same-sex partners.

Should such a challenge succeed, it could indirectly recognise same-sex marriages in Singapore.

And a court judgement should not be influencing the passing of laws.

In summary, the road to stabilising societal norms and opinions about homosexuality will be a long one; there will be lengthy debates ahead on how the Parliament should amend the Constitution to safeguard the interests and aspirations of all Singaporeans whilst ensuring that it does not infringe on their individual rights, regardless of their sexual orientation.

Let’s hope this won’t be a case of one step forward and three steps back.

A small victory for the LGBTQ community still.