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Repeal of Section 377A significant, important that process will go through Parliament: Analysts

The Government is trying to manage the pace of social change through a democratically accountable process, said one observer. 

Repeal of Section 377A significant, important that process will go through Parliament: Analysts

The crowd at the Pink Dot event on Jun 18, 2022 used white umbrellas to spell "majulah". (Photo: CNA/Try Sutrisno Foo)

SINGAPORE: Prime Minister Lee Hsien Loong's announcement on Sunday (Aug 21) that Singapore will repeal a law that criminalises sex between men is a "significant" move, political analysts said. 

It is also important that the change will be discussed and made in Parliament, and not by the courts, they added.

Mr Lee said during his National Day Rally speech on Sunday that the country will repeal Section 377A of the Penal Code and amend the Constitution to protect the definition of marriage - recognised by law as between a man and a woman - from being challenged in the courts.

Associate Professor Eugene Tan from the Singapore Management University's Yong Pung How School of Law described the twin announcements as the "most significant" made during Mr Lee's speech. 

Referring to the repealing of the law, Assoc Prof Tan said: "It is a careful step in the right direction even if it is controversial and may be seen as reinforcing the status quo.

"The accommodation put forth by the Prime Minister is novel but necessary given what 377A has come to signify for both sides of the divide."

Mr Lee's 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. On Sunday, the Prime Minister said that attitudes have “shifted appreciably” since then.

Repealing Section 377A is a "significant move" that the LGBT (lesbian, gay, bisexual and transgender) lobby has been working hard to address, said Dr Gillian Koh, deputy director of research at the Institute of Policy Studies (IPS). 

The "twin move" of repealing Section 377A and amending the Constitution to protect the definition of marriage "seeks accommodation from all sides of the fence", she added.

"It must be understood to include the strengthening the traditional notion of family and therefore a move that balances interests across society," she added.

"The most important point however that Mr Lee conveyed is that he wants Parliament – elected representatives – to discuss and make that decision and not the courts."

This is unlike what has happened in places like India and Taiwan, she noted. 

"We pledged ourselves to be a democratic society and so the key locus of authority must be Parliament and that is the most important takeaway of how he delivered this plan," Dr Koh said. 

"The process is even more important than the final outcome in law."

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.

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,” the Prime Minister said, noting that there have been several unsuccessful court challenges to Section 377A seeking to declare the law unconstitutional.

Section 377A is a "dead law" as the court ruled that the law cannot be enforced in its entirety, Assoc Prof Tan said. 

"Making the legislative and constitutional changes is the right and responsible thing to do because if the courts were to strike down the law, that would give rise to more uncertainty as to the scope of changes that must take place," he added.

"When Parliament repeals the law, it can better scope the ambit of changes and ensure that there are no unintended consequences."


Assoc Prof Tan said the Government is trying to manage the pace of social change through a democratically accountable process. 

"It is not ideal for society for the pace of significant social change to be imposed on it in without there being democratic accountability," he added. 

IPS' Dr Mathew Mathews said that the announcement shows that the Government, especially with the 4G leadership, is willing to tackle some "very contentious social issues even though these can incur substantial political costs". 

Dr Mathews, who heads the IPS Social Lab, added that the intention to repeal the law lets members of the LGBT community know that the Government recognises their needs and will do what it can to "at least remove some of the greatest concerns that they feel toward their inclusion in Singapore". 

At the same time, the Government recognises some concerns about more LGBT activism, and the need to safeguard the current position on marriage and family, he noted. 

It takes courage for a political party that "largely hinges on conservatism" to make such a bold decision, said Nanyang Technological University's Dr Felix Tan.

Dr Koh said the court judgment in February meant the writing was on the wall that a new position on Section 377A was "in the offing".

"But to the social conservatives, it was an extremely important marker of what is acceptable and what is the social norm," she added.

She cautioned that if any side demands more, it will cause things to "ratchet up and cause deep polarisation in society".

"If instead, each side can see how its key and most immediate concerns have been taken into account, privilege the democratic system in expression and also prioritise social peace in Singapore, it can be a sustainable new accommodation that will hold for a long time to come," she said. 

Given that the Government has made its stance clear, time will be needed for all to "heal the divide", said Dr Tan. 

"While social norms are changing, we should not let ourselves be caught up in a rhetoric of hatred, anger and a deep seated unjustified animosity that clearly has no place in a mature society," he added.

Source: CNA/ja(mi)


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