Section 377A of the Penal Code states that men who have sex with men will be imprisoned.
In the past, the Government has said that this law won’t be proactively enforced.
In law-abiding Singapore, that’s led to questions: if a law isn’t going to be enforced, then what type of law is it? Do we have two types of laws here, one type we obey, and the other type we ignore? Wouldn’t that lead to confusion and disrespect for the law?
Another problem is that 377A applies only to men, not women. Women are free to have sex with women.
Does that make the law unfair? Does it breach our Constitution, which states that all persons are equal before the law?
There’ve been unsuccessful court challenges to 377A. Following the most recent one, the Government was advised that in future cases, there would be a significant risk of 377A being struck down as unconstitutional.
Satisfying different interest groups
So, the Government has announced that it will repeal 377A.
That’s a major win for the pro-repeal group.
On the other side of the fence is the traditional family group. It wants to preserve the institution of marriage as only being between a man and a woman. It worries that repealing 377A will lead to gay marriage being legalised.
But 377A has nothing to do with marriage. Marriage is defined under different laws, such as the Women’s Charter, as heterosexual marriage.
To reassure this group, the Government will amend the Constitution to protect heterosexual marriage. The Constitution is bulletproof. It can’t be challenged in court.
That’s a major win for the traditional family group. Some religious communities are worried that if 377A is repealed, they lose their right to say that homosexuality is sinful, and they must teach that homosexuality is okay.
That’s not true. They’re free to continue to say that homosexuality is a sin, even if it isn’t a crime. There’s a big difference between sin and crime. For example, adultery and contraception aren’t crimes here. But religious groups are free to teach that these practices are sins, according to their beliefs.
Sin is a religious concept, not a legal one. Singapore is secular. We have no national religion: we believe only in the law.
Living as we do on this tiny island, we need to give one another space to do our own thing, while respecting personal beliefs.
Who’s the winner here?
That brings me to my final point: who won?
The pro-repeal group are now rid of a law that wasn’t being enforced.
The pro-family group are assured that traditional marriage remains the bedrock of Government policies.
Religious groups are free to continue to teach about sin.
Everyone secured something important. No one lost anything.
Sin is a religious concept, not a legal one. Singapore is secular. We have no national religion: we believe only in the law.
As a non-gay, non-religious Singaporean, this is what I think we must do now: Nothing.
No petitions, no demonstrations, no rallies.
Let’s just chill and reflect how we, as a nation, navigated this journey in a civilised way. Living as we do on this tiny island, we need to give one another space to do our own thing, while respecting personal beliefs.
Other countries have culture wars. Let’s have a cultured peace.
By Adrian Tan, Law Society President
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