NDR 2022: Singapore to repeal Section 377A, amend Constitution to protect definition of marriage

SINGAPORE: Singapore will repeal Section 377A of the Penal Code, Prime Minister Lee Hsien Loong said in his National Day Rally speech on Sunday (Aug 21), revoking a colonial-era law that criminalises sex between men.

The Government will also amend the Constitution to protect the definition of marriage – currently recognised by law as taking place between one man and one woman – from being challenged constitutionally in the courts, Mr Lee said.

The Government has no intention of changing the definition of marriage or national policies on public housing, education, adoption rules, advertising standards and film classification, he said, signalling that it will maintain “prevailing norms and values” of Singapore society.

The announcement comes 15 years after Parliament last debated Section 377A in 2007, when it decided that the law would stay but not be actively enforced. Mr Lee said attitudes have “shifted appreciably” since then.

“While we remain a broadly conservative society, gay people are now better accepted in Singapore, especially among younger Singaporeans,” he said.

In February, the Court of Appeal dismissed the latest challenges to Section 377A but reaffirmed that the law was “unenforceable in its entirety” and posed no threat of prosecution.

Following the ruling, Law and Home Affairs Minister K Shanmugam said in March that the Government was considering the “best way forward” on Section 377A while respecting different viewpoints.

The minister then said in July that the Government was looking at how it could safeguard the current legal position on marriage against challenges in the courts, while it considered the next steps for Section 377A.

The Government had also held extensive discussions with religious groups, grassroots leaders, Singaporeans from different backgrounds, as well as lesbian, gay, bisexual and transgender (LGBT) groups, he said.

Mr Lee said on Sunday that Mr Shanmugam and the attorney-general have advised that there is a “significant risk” of Section 377A being struck down in a future court challenge, 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,” he said, noting that there have been several unsuccessful court challenges to Section 377A seeking to declare the law unconstitutional.

“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. This will bring the law into line with current social mores, and I hope, provide some relief to gay Singaporeans.”

CONCERNS ABOUT REPEAL REPERCUSSIONS

Mr Lee said that most Singaporeans do not want the repeal to trigger a “drastic shift” in Singapore’s societal norms across the board, including in issues like how marriage is defined, what is taught in schools, and what is shown on television and in cinemas.

The Prime Minister said such sentiments had “come through very clearly” in the Government’s engagements over several months, and some of those with reservations “feel strongly” about the law itself.

On Jul 23, the Protect Singapore Townhall – which its organisers said was attended by more than 1,200 people – was held to call for Section 377A to be retained and the definition of marriage to be protected.

“But for most, their main worry is what they feel Section 377A stands for, and what they fear repealing it may quickly lead to,” Mr Lee said.

“They also worry that this may encourage more aggressive and divisive activism on all sides. And 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.”

Mr Lee said the Government understands these concerns and does not want the repeal to trigger “wholesale changes” in society, and that it will maintain its current family-oriented approach and prevailing norms and values of Singapore society.

“Hence, even as we repeal 377A, we will uphold and safeguard the institution of marriage,” he said, highlighting that Singapore only recognises marriages between one man and one woman.

“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.”

Mr Lee said Singapore is by and large a conservative society that believes marriage should be between a man and a woman, children should be born and raised within such families, and that the traditional family should form the basic building block of society.

“Most Singaporeans would like to keep our society like this. 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,” he said.

However, Mr Lee said Singapore, like every human society, has gay people in its 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,” he said.

“And 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.”

PROTECTING DEFINITION OF MARRIAGE

Still, Mr Lee pointed out that under current laws, the definition of marriage – like Section 377A – could be challenged constitutionally in the courts, saying that this has happened in other countries.

“If one day such a challenge succeeds here, it could cause same-sex marriages to become recognised in Singapore,” he said.

“And this would happen not because Parliament passed any such law but as the result of a court judgment.”

Even if the majority of MPs opposed same-sex marriage, Parliament might not be able to simply change the law to restore the status quo ante, Mr Lee said, adding that Parliament might need to amend the Constitution with a two-thirds majority.

“I do not think that for Singapore, the courts are the right forum to decide such issues,” he said.

“Judges interpret and apply the law. That is what they are trained and appointed to do ... 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.”

Even then, those seeking change could still try to “force the pace” through litigation, Mr Lee said, stressing that this was “adversarial” in nature and would highlight differences, inflame tensions and polarise society.

“And I'm convinced this would be bad for Singapore,” he said.

Therefore, the Government will protect the definition of marriage from being challenged constitutionally in the courts by amending the Constitution, Mr Lee said, adding that the legal definition is contained in the Interpretation Act and Women’s Charter.

“This will help us to repeal Section 377A in a controlled and carefully considered way,” he said.

“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 we 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.”

BEWARE OF “CULTURE WARS”

Mr Lee said the Government sought a “political accommodation” that balances different legitimate views and aspirations among Singaporeans.

But he warned Singapore against going down the road of “culture wars”, where strongly held opposing views push harder and harder against each other.

“And in some Western societies, not few, this has resulted in culture wars, contempt for opposing views - and not just for the views but for the opposing people - cancel culture to browbeat and shut up opponents, and bitter feuds splitting society into warring tribes,” he said.

“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.”

Mr Lee said there is much more to be said on this “difficult subject”, acknowledging that his announcement will set off further reactions and discussion ahead of a “full debate” as the legislation enters Parliament.

“We have a stable and generally harmonious society, and we will work hard to keep things like this,” he added.

“I hope the new balance will enable Singapore to remain a tolerant and inclusive society for many years to come.”