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Government carefully considering best way forward on Section 377A, seeks to avoid sudden, destabilising change: Shanmugam

Government carefully considering best way forward on Section 377A, seeks to avoid sudden, destabilising change: Shanmugam
Home Affairs Minister K. Shanmugam said the Attorney-General's Chambers is looking at the recent Court of Appeal ruling carefully.
PHOTO: The Straits Times

SINGAPORE - The Government is carefully considering the best way forward on Section 377A of the Penal Code, which criminalises sex between men but which the Government has said will not be proactively enforced, Home Affairs Minister K Shanmugam said on Thursday (Mar 3).

"We must respect the different viewpoints, consider them carefully, talk to the different groups," he told Parliament.

"If and when we decide to move, we will do so in a way that continues to balance these different viewpoints, and avoids causing a sudden, destabilising change in social norms and public expectations," he added.

Speaking during the debate on the budget of the Ministry of Home Affairs, Mr Derrick Goh (Nee Soon GRC) had asked about the Government's position on a recent Court of Appeal ruling on Section 377A of the Penal Code.

In the judgment released on Monday (Feb 28), the apex court had ruled that the law will stay on the books, but cannot be used to prosecute men for having gay sex.

On Thursday, Mr Shanmugam said public policies need to evolve to keep abreast of changes in views in society, and legislation will also have to evolve to support updated policies.

He said the Attorney-General's Chambers (AGC) is looking at the judgment carefully.

The latest ruling was on a challenge against a High Court decision in 2020.

The apex court dismissed the challenges brought by three men who argued that Section 377A should be struck down as it violates their constitutional rights.

The five-judge panel, led by Chief Justice Sundaresh Menon, also ruled that the law was "unenforceable in its entirety" until the Attorney-General of the day signals a change in the prosecutorial policy.

Responding to Mr Goh's question, Mr Shanmugam noted that the Government had explained its stand on the issue when the Penal Code was amended in 2007, but Section 377A was left unchanged.

During the parliamentary debate on the issue at that time, Prime Minister Lee Hsien Loong had said that Singapore wants to be "a stable society with traditional heterosexual family values, but with space for homosexuals to live their lives and to contribute to society".

"Among them are some of our friends, our relatives, our colleagues, our brothers and sisters, or some of our children... Our kith and kin," PM Lee had added.

Referring to PM Lee's remarks in 2007, Mr Shanmugam said: "This remains our stand today."

He noted that the issues surrounding Section 377A are deeply divisive and that is why Singapore has taken a "live and let live approach".

"We seek to be an inclusive society, where mutual respect and tolerance for different views and practices are paramount," he added.

That is why the Government had taken the approach that while Section 377A remains on the books, there will be no proactive enforcement, Mr Shanmugam said.

He added that the AGC takes a similar approach.

Under the law, there are protections for the lesbian, gay, bisexual and transgender (LGBT+) community, said Mr Shanmugam.

He cited how the Government had expressly included in the Maintenance of Religious Harmony Act that any attack on any member of the LGBT community because of their identity, or on LGBT+ groups, will be an offence, and will not be tolerated.

"LGBT individuals are entitled to live peacefully, without being attacked or threatened," he added.

"Likewise, any attack on any other group, based on their religion, or religious beliefs, even if those beliefs run counter to values held by LGBT+ groups, will not be acceptable."

Mr Shanmugam said Singapore's emphases on gradual evolution and on traditional families remain constant.

However, he added, social attitudes towards homosexuality have gradually shifted since the issue was last discussed in Parliament in 2007.

He noted that many, especially younger Singaporeans, believe that consensual sex between men should not be deemed a criminal act and should not be criminalised.

"One of the things that upsets the LGBT+ community is that many feel that their experience of being hurt or rejected by their families, friends, schools, companies - is not recognised, indeed often denied," he added.

At the same time, he said, there is also a large majority who want to preserve the overall tone of society.

This segment want to uphold the traditional view of marriage as being between a man and a woman, and believe that children should be raised within such a family structure, added Mr Shanmugam.

"Their concern is not Section 377A per se, but the broader issues of marriage and family. Many amongst this group also support decriminalising homosexual sex between men," he said.

"Both these viewpoints are valid and important," the minister added.

He also noted that the Courts have said that the current legal position reflects society's norms, values and attitudes.

In successive judgements over the years, the Courts have consistently taken the position that these are highly contentious social issues that should be decided by Parliament, and that the heterosexual, stable family remains the social norm, he added.

On the latest judgment by the apex court, Mr Shanmugam said the Court's opinions align with the Government's approach in dealing with Section 377A, as well as the approach the Government intends to take as it considers the changes in Singapore's social landscape since 2007.


For instance, the Court had noted that the compromise which Singapore has struck, in respect of Section 377A, is unique, and described the approach as one that preserves the legislative status quo, while accommodating the concerns of those who are directly affected by the legislation.

"The Court recognised that the Government did this in order to avoid driving a deeper wedge within our society," said Mr Shanmugam.

"It also noted that Singapore's approach seeks to keep what to do with Section 377A within the democratic space."

He added that the Court had also highlighted the importance of creating space for peaceful co-existence among the various groups, especially since the balance between the various interests around Section 377A has grown more delicate.

Mr Shanmugam said socially charged issues, such the whether or not to repeal Section 377A, call for continued discussion and open-ended resolution within the political domain, where consensus can be forged, rather than in win-lose outcomes in court.

"In this way, we can accommodate divergent interests, avoid polarisation and facilitate incremental change," he said.

This article was first published in The Straits TimesPermission required for reproduction.

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