NDR 2022: The long, winding road to the repeal of Section 377A in Singapore, and what other countries' experiences show

SINGAPORE — The repeal of Section 377A of the Penal Code, which criminalises sex between men, has turned a page in one of the most contentious issues over the past decades in Singapore.

It was announced by Prime Minister Lee Hsien Loong at his National Day Rally speech on Sunday (Aug 21).

Although it is not actively enforced, the existence of the law has been a divisive topic here. 

Its opponents argue that the law perpetuates discrimination of the lesbian, gay, bisexual, transgender and queer (LGBTQ) community, while its proponents feel that removing the law will unravel the norms of the heterosexual, nuclear family.

TODAY takes a look at the origins of the law, both in Singapore and around the world, and whether it has paved the way for homosexual marriages in countries where it has been repealed.

WHAT IS SECTION 377A?

The law is a remnant of British colonial rule, which states 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.”

It was an adaptation of the Indian penal code from the 19th century that penalised “carnal intercourse against the order of nature”.

The law criminalising sex between men was introduced to British colonies such as New Zealand, Singapore and South Africa, in various forms.

SINGAPORE'S HISTORY WITH 377A

Section 377A was introduced to Singapore by the British in 1938.

It was partly intended to clamp down on male prostitution in the Straits Settlements, based on an argument by a legal team here in 2019 that relied on declassified correspondences by the British government.

The law was adopted in Singapore, which was part of the Straits Settlements then.

As with other colonial territories, Singapore retained Section 377A even after gaining independence in 1965.

However, the law came under intense debate in 2007 during a review of the Penal Code. There was a repeal of Section 377 ꟷ which prohibited “carnal intercourse against the order of nature with any man, woman or animal” ꟷ but not 377A.

At that time, former Nominated Member of Parliament (NMP) and lawyer Siew Kum Hong submitted a petition calling for a repeal of Section 377A on the basis that it contravened the constitutional guarantee of equality and equal protection for all.

However, most members of the House opposed the repeal of the law. Among those that did was NMP and National University of Singapore law professor Thio Li-Ann, who said that removing the law was the “first step of a radical, political agenda which will subvert social morality, the common good and undermine our liberties”.

The Government eventually chose to retain the law, with Mr Lee saying in Parliament that while the law will not be proactively enforced, repealing the law would “divide and polarise” society.

Since that debate, there have been several legal challenges to Section 377A, and prominent legal voices have also spoken out against the law.

In 2018, veteran diplomat Tommy Koh described the law as “antiquated” and called for its repeal. Other prominent figures, including former attorney-generals Walter Woon and VK Rajah, also pointed out that Section 377A poses a constitutional problem given that the Government has stated that it will not proactively enforce the law.

The most recent legal challenges to the law were in 2018 and 2019, when three men took their filings to the High Court. They were retired general practitioner Roy Tan, disc jockey Johnson Ong and Mr Bryan Choong, the former executive director of LGBTQ non-profit organisation Oogachaga.

However, in February this year, the Court of Appeal upheld a lower court’s decision to dismiss their challenges to the law, but ruled that it is “unenforceable in its entirety” and poses no threat of prosecution. The judgement also noted that Singapore’s approach seeks to keep what to do with Section 377A within the democratic space, in line with past court rulings that these are highly contentious social issues that lie within the province of Parliament.

Following the judgement, Home Affairs and Law Minister K Shanmugam said in Parliament in March that the Government was “considering the best way forward” on the law, adding that any change will need to respect different viewpoints. “Socially charged issues, such as Section 377A, call for continued discussion and open-ended resolution within the political domain, where we can forge consensus, rather than in win-lose outcomes in court," he added.

The Government engaged various groups on this review, prompting discussion over a possible repeal of Section 377A. In July, more than 1,000 people took part in a town hall to argue for retaining the law.

DOES 377A STILL EXIST IN OTHER COUNTRIES?

Some countries have repealed laws criminalising sex between homosexuals, but others have yet to do so.

LGBT human rights organisation Human Dignity Trust said that there are 70 jurisdictions that criminalise private, consensual, same-sex sexual activity.

Close to half of them are former British colonies including Malaysia, Sr Lanka and Uganda.

Former colonies that have repealed the law are Australia (across various states since the 1970s), New Zealand (1986) and India (2018).

HAVE REPEALS PAVED WAY FOR SAME-SEX MARRIAGES?

Some countries have moved on to allow same-sex marriages following the repeal, while others have yet to do so.

The Human Rights Campaign Foundation said that there are now 32 countries and territories where same-sex marriage is legal. These countries are predominantly in Europe or the Americas.

Among former British colonies that have legalised gay marriages are South Africa in 2006, New Zealand in 2013 and Australia in 2017.

In Asia, the first and only territory to have done so was Taiwan in 2019.

In the meantime, the debate on allowing same-sex marriages rages on in other countries. India may have decriminalised gay sex in 2018, but it has yet to legalise same-sex marriages.

Views remain deeply divided in the country. In April this year, Member of Parliament Supriya Sule of the opposition Nationalist Congress Party introduced a private member’s bill in the lower house of India’s Parliament to legalise same-sex marriage, but in the same month, the Uttar Pradesh state government opposed such marriages on the grounds that they are “against Indian culture”, which define marriage as between man and woman.

Similarly, Fiji, which decriminalised sex between homosexuals in 2010, has not permitted same-sex marriages, with its Prime Minister Frank Bainimarama telling the media that there will not be same-sex marriage in the country in his lifetime.

As seen in these countries, repealing the law does not put an end to the debate on LGBTQ issues.