'Irresponsible and wrong' for Parliament to leave to courts to rule on Section 377A's legality: Shanmugam

SINGAPORE — Parliament has a duty to deal with laws that are likely unconstitutional, such as Section 377A of the Penal Code, and it would be “irresponsible and wrong” to let things be or leave it to the courts to decide, said Home Affairs and Law Minister K Shanmugam on Monday (Nov 28).

Speaking during a parliamentary debate on a Bill to repeal Section 377A, he said that even though none of the several court challenges to this law over the years have succeeded, the latest judgement from the Court of Appeal showed a significant legal risk of it being struck down in the future.

If the Government does not act now, the courts may strike it down in the future, he said, reiterating Prime Minister Lee Hsien Loong’s remarks when he announced the repeal of this law during his National Day Rally speech this year.

“If the courts strike down Section 377A, it will be a binary process. They cannot deal with all the legitimate concerns about the consequential effects of the repeal,” Mr Shanmugam said.

“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,” he added, citing how the House has now also proposed amendments to the Constitution to protect the definition of marriage as an example.

In his speech, Mr Shanmugam also addressed the claim by those who said that since Singapore 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.

That would be the easy but wrong approach, he said.

“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 of leaving it to the courts would have been easier,” he added.

“We don’t need to decide. We just let things be. But such an approach would be irresponsible, and wrong.” 

He also said that the latest court challenge brought by three gay men who contested the law’s constitutionality has revealed an opening for which the law could be struck down in the future.

Earlier this year, the apex court dismissed the appeal saying that the law was “unenforceable in its entirety”.

Even though it dismissed the case at the outset, the court noted that Section 377A did not violate constitutional rights to life and liberty as well as rights to freedom of speech, assembly and association.

But on the issue of whether it violated constitutional rights to equality, the Court of Appeal said this was an issue that merits “further reflection” and highlighted a circumstance in which the appellants might have been successful had a specific legal test been applied to the case.

To Mr Shanmugam, the message from the judges was important — that Section 377A was “probably unconstitutional”. He noted that the apex court had in subsequent cases this year applied that same legal test — known as the Syed Suhail test — in two other cases this year.

In the latest Section 377A challenge, the apex court dismissed the case on the basis that the appellants had no legal standing to challenge Section 377A. The court had, in an earlier 2014 judgement, ruled that a man had legal standing because there was a real and credible threat to future prosecution.

Some may argue that this means that so long as the Attorney-General does not reassert the right to prosecute cases under Section 377A, no one would have the standing to challenge the law in the future, Mr Shanmugam said.

He likened taking such a view to that of being "a small boat in choppy waters surrounded by rocks and hoping the boat won’t crash into the rocks”.

People who have been convicted under Section 377A in the past would be able to bring forward a case that they have legal standing, by arguing that their rights had personally been violated, he said.

Beyond court prosecutions, the police may also find themselves investigating someone under Section 377A because some acts captured by that law may constitute other offences that the police cannot be constrained from investigating.

Also, the Court of Appeal can always change its mind on whether an appellant has legal standing to challenge Section 377A, Mr Shanmugam said.

‘DAMAGING’ CONSEQUENCES

If the Government does not act and Section 377A is struck down by the courts, it would lead to “a whole series of consequences which would be very damaging to our Singaporean society”, Mr Shanmugam said.

He noted how the Indian parliament did not act in the years following 2009, when the Delhi High Court first ruled Section 377 of the country's Penal Code unconstitutional.

It led to a series of other court challenges and back-and-forth court decisions. Eventually in 2018, the Indian Supreme Court struck the law down, saying that when a provision violated the Constitution, the court must strike it down.

This year, the Indian Supreme Court expanded the definition of family to include same-sex relations.

Noting that the same could happen here, Mr Shanmugam said: “What is the lesson here? When Parliament does not act when it should, then we may leave the courts with no choice.”

He added that many other jurisdictions including Taiwan and the United States have ended up legalising same-sex marriages through court challenges.

“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,” he said.

If the courts strike down Section 377A, they will do so without being able to consider consequential effects on society that are not in Singapore’s interest, Mr Shanmugam said.

This could impact the definition of marriage and could lead to challenges to marriage, media content and housing policies, he said.

“Why should we only give housing benefits to heterosexual married couples?... Why should we impose higher age ratings for content on movies and Netflix that depict same-sex family units?”

He added: “We can look at the United States to see how court decisions on such issues can seriously affect the fabric of society, divide the society, unleash partisan views on both sides of the divide.

To know these risks and refuse to take a position as an Member of Parliament, would be to avoid his or her responsibility.

“That is an abdication of duty,” Mr Shanmugam said.

“It would be cynical if we did that because we would be putting political capital over doing what is good for Singaporeans.”