Time to repeal Section 377A that 'humiliates, hurts gay people', refusing to take a position an abdication of duty: Shanmugam

SINGAPORE — Fifteen years after a heated parliamentary debate on Section 377A that criminalises sex between men, Law and Home Affairs Minister K Shanmugam said on Monday (Nov 28) that the time has come for the law — which "humiliates and hurts gay people" — to be repealed. 

Noting that the majority of society now accepts that sex between men should not be illegal, Mr Shanmugam said that it is reasonable for some people, including Members of Parliament (MPs), to disagree and to believe that there are other reasons for keeping the law even though there are no public order issues.

But this is not just a matter of conscience, but an issue that could have “damaging” effects on other policies if Parliament does not act, he said as he called on MPs to “do what is right”. To refuse to take a position, he told the House, would be an "abdication of duty". 

Mr Shanmugam was speaking during a debate in Parliament over the two Bills related to the removal of Section 377A from the Penal Code — one on the repeal and the other on amending the Constitution to protect the definition of marriage as being between a man and a woman.

In a lengthy speech spanning over an hour, Mr Shanmugam spoke at length about the historical context between Section 377A, the division on homosexuality around the world and why the time has come to repeal the law in Singapore. 

He said that there are two reasons why the Government is proposing to repeal Section 377A now.

First, it is the right thing to do, and society is more ready now for the repeal.  

“To a gay person, even if Section 377A is not enforced — it is there: Memorialised in law, a sword hanging over his head, a daily reminder that every time he engages in private sexual activity behind closed doors in the sanctity of his bedroom, he is nevertheless a criminal,” he said.

“Is it fair that gays have to live in this way? This is not something that we should accept, even if we personally disagree with homosexuality.”

While some religions consider homosexuality a sin, not every sin is a crime, he said.

The Government’s position is that for conduct to be criminal, there should generally be an issue of public order or interest.

Consensual adult sex between men in private, however, does not raise law-and-order concerns and it is generally not the role of criminal law in Singapore, like many other places, to intervene in the private lives of citizens.

“The time has come for us to remove Section 377A. It humiliates and hurts gay people,” he said.

He added that most gay people do not cause harm to others.

“They just want to live peacefully and quietly, and be accepted as part of society, the same as any other Singaporean," he added. 

"They deserve dignity, respect, acceptance. They do not deserve to be stigmatised because of their sexual orientation.”

Compared to when Parliament had its first substantive debate over Section 377A in 2007, society is now ready to accept its repeal, with government engagements showing that even Singaporeans who want to retain the law do not want to see it actively enforced, said Mr Shanmugam. 

“Let us start to heal these divides and remove their pain,” he said.

'SIGNIFICANT' LEGAL RISK

In his speech, Mr Shanmugam said a second reason why the Government is repealing Section 377A now is because the latest judgement from the Court of Appeal showed a significant legal risk of it being struck down in the future.

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, he said.

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

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.”