NDR 2022: Govt to repeal Section 377A, amend Constitution to protect marriage definition from legal challenges

SINGAPORE — Singapore will be repealing Section 377A, the controversial law that criminalises sex between men. At the same time, the Constitution will be amended to protect the definition of marriage — as that between a man and a woman — from being challenged in the courts. 

Prime Minister Lee Hsien Loong announced this during his National Day Rally speech on Sunday (Aug 21), in which he laid out several reasons for the move.

For one thing, attitudes towards gay people have “shifted appreciably” and they are better accepted here, Mr Lee said.

He added that several court challenges to Section 377A have been made seeking to declare the law unconstitutional. While they have been unsuccessful, it would be “unwise” to ignore the risk of the law being struck down during a future court challenge, Mr Lee said. 

He also gave assurances that the repeal of the law will not trigger wholesale changes in society and that the current family-oriented approach, as well as the prevailing norms and values of Singapore society, will be maintained. 

Mr Lee said that Singapore is still a largely "traditional society, with conservative social values”. 

These values include believing that marriage should be between a man and a woman, that children should be born and raised within such families, and that the traditional family should form the basic building block of our society. 

“Most Singaporeans would like to keep our society like this,” Mr Lee said. “This is the Government’s position, too.” 

He added that the Government has upheld and reinforced the importance of families through various national policies and will continue to do so. 

He said, however, that there are also gay people who are part of Singapore society, who also want to “live their own lives, participate in our community and contribute fully to Singapore”. 

“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,” he added. 

Mr Lee pointed out that Section 377A was originally introduced in the 1930s by the British colonial government and it reflected “moral attitudes and social norms that prevailed back then”. 

Section 377A of the Penal Code states that any male person who, in public or private, commits, aids or enables a male to commit any act of gross indecency with another male could face a two-year jail term.

However, over the decades, homosexuality has become better understood, scientifically and medically, Mr Lee said, and that in many societies, including Singapore, gay people have become “more accepted for who they are, instead of being shunned and stigmatised”. 

He added that when the issue of whether to repeal Section 377A or not was last debated in Parliament in 2007, the Government had decided then that it would retain the law but not actively enforce it. 

“It would have been too divisive to force the issue then (and) it was better for us to live with this untidy compromise,” Mr Lee said. 

REASONS FOR REPEALING SECTION 377A 

However, in the 15 years since then, he noted that “attitudes have shifted appreciably”. 

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

“It is timely to ask ourselves again the fundamental question: Should sex between men in private be a criminal offence?”

Mr Lee said that most people accept that a person’s sexual orientation and behaviour is a private and personal matter, and that sex between men should not be a criminal offence. 

“Even among those who want to retain Section 377A, most do not want to see it being actively enforced and criminal penalties applied,” he added. 

From the national point of view, private sexual behaviour between consenting adults does not raise any law-and-order issue and so, there is no justification to prosecute people, he said. 

Mr Lee also noted that there have been several court challenges to Section 377A, seeking to declare the law unconstitutional. 

Although none have succeeded so far, in the most recent judgement, Minister for Law K Shanmugam and the Attorney-General have advised the Government that in a future court challenge, there is a “significant risk of Section 377A being struck down, on the grounds that it breaches the equal protection provision in the Constitution”. 

Mr Lee said that such a risk has to be taken seriously and that it would be “unwise to ignore the risk, and do nothing”. 

“For these reasons, the Government will repeal Section 377A and decriminalise sex between men,” he said. “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.” 

PROTECTING DEFINITION OF MARRIAGE IN CONSTITUTION

Mr Lee noted that most Singaporeans do not want the repeal of Section 377A to “trigger a drastic shift in our societal norms across the board”. 

“This includes how marriage is defined, what children are taught in schools, what is shown on free-to-air television and in cinemas, as well as what is generally acceptable conduct in public,” he said. 

Through the Government’s engagement with Singaporeans, it has found that some are worried that the repeal of 377A may “encourage more aggressive and divisive activism on all sides”. 

This is not only the concern of those with religious objections, but is shared by many non-religious people, and “even many Singaporeans who support repeal want to maintain our current family and social norms”, he said. 

Mr Lee also said that the Government understands these concerns and, likewise, does not want the repeal to “trigger wholesale changes in society”. 

“We will maintain our current family-centric approach, and the prevailing norms and values of Singapore society.” 

The institution of marriage will therefore be upheld and safeguarded even while Section 377A is repealed. 

Mr Lee said that as the law stands, the definition of marriage can be challenged on constitutional grounds in the courts, just like Section 377A has been challenged. 

“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 as the result of a court judgement, not because Parliament passed any such law.” 

He added that to reverse the position, Parliament may have to amend the Constitution and that would require a two-thirds majority.

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

He said that judges interpret and apply the law as they have been trained to do, and do not have the expertise or mandate to settle political questions, or rule on social norms and values.

“These are fundamentally not legal problems, but political ones,” he said. 

Even though this has been acknowledged by Singapore's courts in their judgements dealing with such cases, people seeking such changes may still try to “force the pace through litigation”. 

Mr Lee said that this would “highlight differences, inflame tensions and polarise society”, and thus be bad for Singapore. 

The definition of marriage will therefore be protected from being challenged constitutionally in the courts. 

Even though the legal definition of marriage is contained in the Interpretation Act and the Women’s Charter, the Government will “have to amend the Constitution to protect it, and we will do so”. 

“This will help us repeal Section 377A in a controlled, carefully considered way,” Mr Lee added. 

“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 it 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.” 

‘NO GROUP CAN HAVE THINGS ALL THEIR WAY’ 

Mr Lee said that what the Government seeks is a "political accommodation that balances different legitimate views and aspirations among Singaporeans".

He acknowledged that for some, the repealing of Section 377A will be “too modest a step”, whereas for others, it will be a step “taken only with great reluctance”. 

“But in a society where diverse groups have strongly held opposing views, everyone has to accept that no group can have things all their way,” he said. “If one side pushes too hard, the other side will push back, even harder.” 

He added that in some Western societies, this has resulted in “culture wars, contempt for opposing views, cancel culture to shut up opponents and bitter feuds splitting society into warring tribes”. 

There are some signs of similar things starting to happen here, he noted.  

“Let us not go in this direction... All groups should exercise restraint, because that is the only way we can move forward as a nation together.”

He added that there will be "much more to be said on this difficult matter", and that further reactions and discussions will be sparked by the announcement.

"We will have a full debate when we bring the legislation to Parliament," Mr Lee said.

He added that Singapore has a stable and generally harmonious society, and the Government will work hard to maintain this. 

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