Leaving 377A decision to courts would be path of least resistance but also irresponsible, wrong: Shanmugam

SINGAPORE: Leaving it to Singapore's courts to decide on the future of a law criminalising gay sex would be the "path of least resistance" but also an irresponsible and wrong approach, said Law and Home Affairs Minister K Shanmugam on Monday (Nov 28).

Speaking during a parliamentary debate on repealing the colonial-era Section 377A of the Penal Code, he said: "There are some who have said since our courts have recognised what belongs to the political process and what belongs to the judicial process, it is unlikely that the courts will ever strike down Section 377A.

"In other words, we can just take the easy way. We don’t need to decide. We just let things be ... If we left it to the courts, the Government would bear no blame."

Prime Minister Lee Hsien Loong first announced at the National Day Rally in August the Government's intention to do away with Section 377A.

This was debated on Monday along with a constitutional amendment to protect the definition of marriage from legal challenges.

In his opening speech at the debate, Mr Shanmugam stressed that it was both the right time - as well as the right thing to do - to repeal Section 377A.

He added that leaving the law alone carried a significant legal risk - that the courts may strike it down in future, without care for "legitimate concerns" over the consequential effects of such a move.

Mr Shanmugam then cited two cases brought before the court in the last decade.

The first involved graphic designers Gary Lim Meng Suang and Kenneth Chee Mun-Leon, a couple who in 2013 challenged that Section 377A was unconstitutional as it discriminated on the basis of sexual orientation. Their challenge was dismissed by the High Court.

They later mounted another challenge arguing that the law should be modified so that it does not apply to consenting adults and sexual acts done in private. This was dismissed in 2014 by the Court of Appeal in 2014, which said that Section 377A did not infringe on the rights of the men.

The second case was another legal challenge to the law, mounted by retired doctor and activist Roy Tan Seng Kee in 2019. He contended that the provision was discriminatory and should be declared void by the court. Both the challenge and a subsequent appeal were unsuccessful.

In the latter case, the Court of Appeal took a different view when it considered Article 12 of the Constitution, which states that all persons are equal before the law and entitled to equal protection. The court concluded that Section 377A "lacks a rational relation to the legislative object of reflecting societal disapproval of homosexual conduct in general or safeguarding public morality generally”.

"What does this all mean in plain language? It means that if another constitutional challenge against Section 377A is brought before the court ... (it) is likely to be struck down, on the grounds that it breaches Article 12 of the Constitution," said Mr Shanmugam.

The minister noted that Section 377A was discussed at a law forum in September which he participated in. The legal scholars, practitioners and experts in attendance "were pretty unanimous on the legal risks" surrounding the law, said Mr Shanmugam.

"As the Prime Minister said during the National Day Rally, the AG (Attorney-General) and I have advised the Government that in a future court challenge, there is a significant risk of Section 377A being struck down, " he added.

"When Parliament does not act, when it should act, then we may leave the courts with no choice. If fundamental constitutional rights have been violated and yet Parliament abdicates its duties, then the courts may have no choice but to act."

Mr Shanmugam warned against assuming that the courts would never strike down Section 377A just because the Government chooses to retain it.

He said that in Singapore, so far, the courts have recognised that Parliament, as the elected branch of Government, is better suited to resolve such difficult societal issues.

"In Parliament, there can be consultation, discussion, debate. Considerations going well beyond the law can be taken into account, whereas courts can only consider the legal issues," said Mr Shanmugam.

"Consensus can be forged, in Parliament, to bridge divergent viewpoints. Open-ended resolutions are possible, instead of binary, win-lose outcomes."

The minister said court processes were adversarial by nature with "no middle ground, no balancing of competing interests".

"The courts cannot consider competing social norms and social consequences of their decisions," he added.

A situation where the courts strike down Section 377A "could lead to a whole series of consequences which would be very damaging to our Singaporean society", said Mr Shanmugam.

For instance, laws defining marriage as between a man and a woman, and policies based on that, could be at risk in future. He said: "It could be argued that equal protection means we cannot discriminate against same-sex couples, in the same way that Section 377A can be said to discriminate against gay persons."

"Going further, if the definition of marriage is changed through a court challenge, there can be a cascading effect," he added.

"It could impact questions relating to same-sex marriage, media content, housing policies, various other policies ... Such changes through the courts are not in Singapore’s interests."

Mr Shanmugam reiterated that it would have been simpler to leave it to the courts and "pretend that these issues do not exist".

"If we approached this purely as politicians, concerned only with votes and not making anyone unhappy, or making as few people unhappy as possible, then that route (would) have been easier," he said.

"But this Government will not take that approach. As elected representatives of the people, we cannot do that," he added.

"If we see a risk that a law may be found unconstitutional, it is our duty to act and deal with it in Parliament.

"Both because it is our duty to do so and because taking the easy way out would have serious negative consequences for our society. It will be very bad for Singapore."