How we should approach the debate on S377A
The author says both camps of the 377A debate should not let the issue narrowly define who they are, nor feel that the other side poses an existential threat to it.
In a landmark judgment last week, the Indian Supreme Court struck down a colonial-era law criminalising gay sex. This has ignited debate on whether Singapore should also repeal a similar provision, section 377A, of its Penal Code, reviving an ardent values contestation on the issue that has been simmering.
Singapore’s section 377A provides that “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 two years”.
In contrast, India’s section 377 is far more expansive and severe: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine”.
Promulgated in the 1860s, India’s law also criminalised consensual sexual acts—including oral and anal sex in private—by heterosexual adults.
Singapore’s 377A, which was enacted in 1938 by the colonial administration ostensibly to deal with the apparent prevalence of male prostitution then, does not apply to consensual homosexual acts by women.
Singapore’s apex court ruled in 2014 that section 377A does not breach the constitutional guarantee of equality under the law and equal protection of the law.
In its extensive examination of Article 12 of the Singapore Constitution, the Court of Appeal further held that there was a closed list of grounds for constitutional protection against discrimination: Religion, race, place of birth, and descent. Gender, sex and sexual orientation are not protected categories.
India’s latest jurisprudence on gay sex may not be entirely relevant as Singapore’s jurisprudence and the constitutional provisions implicated in the Indian case are different.
For example, there is no fundamental right to privacy in Singapore.
In a 2017 ruling, which was pivotal in last week’s decision, the Indian Supreme Court considered the right to privacy a multifaceted right, which flows through other fundamental rights like equality, dignity, life, liberty, expression, association and speech.
Unless our apex court is prepared to overturn its interpretation of Article 12 and/or accept privacy as a fundamental right, the recourse to the courts to decriminalise section 377A will not make much headway.
In any case, Parliament is the appropriate forum on morality matters where society is deeply divided and a legal remedy not justified. It is improper for judges to be “mini legislators” and apply extra-legal considerations in adjudicating.
Otherwise, the judiciary will be usurping the province of the democratically elected branches, undermining the separation of powers and the rule of law.
There will also be greater accountability if Parliament, a democratically elected body, considers and decides whether to retain or repeal section 377A.
Since independence, no political party has made the repeal of section 377A a central part of its election manifesto.
Neither has any political party in Parliament made the issue part of its legislative agenda. This is probably because the political parties believe that the majority of Singaporeans are unlikely to support such a repeal.
Home Affairs and Law Minister K Shanmugam has also said that while the law exists, there have generally been no prosecutions.
At the same time, there is no doubting that LGBTs are part of our society and are entitled to their private lives. Singapore’s stance on homosexuality is, in essence, a pragmatic “live-and-let-live”.
For now, the Government’s oft-stated position of not actively enforcing the law is an even-handed—even if untidy—compromise.
In 2009, in the aftermath of the so-called “Aware saga”, then Deputy Prime Minister Wong Kan Seng spelt out three key “rules of engagement” for faith-inspired groups in the public domain.
First, religious individuals have the same rights as any citizen to express their views on issues in the public space “guided by their teachings and personal conscience”.
But “they should always be mindful of the sensitivities of living in a multi-religious society … This calls for tolerance, accommodation, and give and take on all sides”.
Secondly, religion and politics must be kept separate.
Mr Wong said: “If religious groups start to campaign to change certain government policies, or use the pulpit to mobilise their followers to pressure the government, or push aggressively to gain ground at the expense of other groups, this must lead to trouble”.
Thirdly, the political arena must always be secular even as religious groups and individuals “set the moral tone of our society, and are a source of strength in times of adversity”.
Mr Wong noted that, “our laws and policies do not derive from religious authority, but reflect the judgments and decisions of the secular Government and Parliament to serve the national interest and collective good”.
In order to maintain its space in Singapore, he argued that the homosexual community should “accept the informal limits which reflect the point of balance that our society can accept, and not to assert themselves stridently as gay groups do in the West”.
Section 377A is a sensitive marker and holds symbolic value for religious groups and the LGBT community. It is inherently polarising and societal consensus is unlikely to be reached for some time to come.
The Government is unlikely to take the lead in nudging or moulding social attitudes on this matter; instead, it will follow public opinion.
Even as both groups are firm in their principles, steadfast in their convictions, and fight for what they consider right, these rules of engagement and how advocacy ought to be practised should be observed by all to enable a meaningful dialogue and, hopefully, a compact to be arrived at.
Both camps should not let the issue narrowly define who they are, nor feel that the other side poses an existential threat to it.
In a secular state, everyone has the freedom to be themselves without interference so long as no laws are broken.
In disagreements over values, any concession, where given, should not be seen as an admission of the giver’s inferior moral standing.
By the same token, no group should be demonised or scapegoated. The ethical climate and public discourse should emphasise tolerance, autonomy, respect, and dignity.
It is imperative to search for common ground amid strongly held, opposing and perhaps irreconcilable convictions.
There is the urgent need for both camps to better understand each other and how they can provide maximum space to each other with equal treatment and protection for all, regardless of which group one belongs to or identifies with.
ABOUT THE AUTHOR:
Eugene K B Tan is an associate professor at the School of Law, Singapore Management University.
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