Background

Recently, Singapore’s parliament decriminalised sex between men, thereby, repealing the British colonial-era law i.e., Section 377A of the Penal Code, which was discriminatory and inconsistent with the rights to equality, privacy, and freedom from arbitrary arrest and detention.

The Court of Appeal had explicitly ruled last year that Section 377A of the Penal Code stays on the books but cannot be used to prosecute men for having gay sex, asserting that this regulation is unenforceable in its entirety. As a result, the aforementioned legislative change was expected to have come sooner or later.

Judicial Decisions over the years

Repeatedly, Section 377A has been challenged and marked by the courts of Singapore as unconstitutional. In 2010, Tan Eng Hong v. Attorney-General was the first judicial challenge made, wherein, the Court of Appeal held that the authority to strike it down lay only with the legislature. Furthermore, in another landmark ruling of Lim Meng Suang v. Attorney-General in 2014, the Court of Appeal held that Section 377A was valid and consistent with Article 9 (right to personal liberty) and Article 12 (right to equality) of the Constitution of Singapore.

In addition to the above, multiple petitions were filed for the repeal of this draconian section following the high-profile repeal of Section 377 of the Indian Penal Code in 2018, which is effectively identical to Section 377A of the Singapore Penal Code, but all such legal challenges went in vain and were eventually dismissed by the courts in Singapore.

Finally, on the 21st of August, 2022, current Prime Minister Lee Hsien Loong announced that the government would table a motion in the Parliament to quash Section 377A. After a two-day debate, Section 377A was officially repealed on the 29th of November, 2022.

Legal Implications

Although decriminalisation is a welcome step, it comes hand-in-hand with another amendment that proposes the introduction of a new “Institution of Marriage” clause as a reform to the existing constitution that would clarify that the Parliament, and not the courts, have the sole right to make laws to “define, regulate, protect, safeguard, support, foster, and promote” the institution of marriage. Such a move by the government showcases the unequal treatment meted out against the LGBTQ population of the country.

As is quite evident from the above discussion, the bill has been introduced to, firstly, appease the conservative segment of the Singaporean society and, secondly, prevent court challenges that in other countries have led to the legalisation of same-sex marriage and hence, appears to be a massive setback for the LGBTQ community. The government’s opinion that the fundamental rights of the LGBTQ people are a political issue rather than a legal one also highlights their blatant disregard for the community’s interests.

Social Implications

Gay rights campaigners are relieved by the government’s decision but believe that “the true impact of repeal will be determined by how the people of Singapore respond to it, and treat each other, in the days and months to come.”

There are still abundant stories of discrimination being meted out against the community. To  begin with, certain television programs in the nation continue to depict homosexual men as deviants, failing to acknowledge their authentic identities, ultimately resulting in the perpetuation of an enduring stigma in the minds of people, in a way, fostering a perception that being gay is morally objectionable.

In the end, while courts have struck down this colonial law, the Singaporian society still does not accept homosexuality in its complete sense, thereby refusing to give up its current viewpoint on heterosexual marriage. In light of this, the Roman Catholic Archdiocese of Singapore also emphasized on the fact that, “the fruitfulness of marriage necessitates that marriage must be open to procreation.” Hence, we find ourselves in a position where there is a need to overcome such prejudicial social attitudes. The government’s stance to try and balance both the pro- and anti-standpoints cannot work in the long run. With an increasing public participation and shift towards a more liberal stance, Singapore will be exposed to increasingly globalised values. As a result, with enough public discourse, there could hopefully be a possibility for a legalisation of same-sex marriage in the future.

Conclusion

In Singapore, although attitudes towards LGBTQ issues have shifted towards a more liberal stance in recent years, especially among the young, but conservative attitudes remain strong among religious groups, which is apparent from the National Council of Churches of Singapore’s statement that, “the move has weakened the legislation’s role as a moral signifier.” Hence, the LGBTQ community still has a long way to go in changing the prevailing misconceptions and fostering an understanding societal atmosphere for their community.

The new constitutional amendment now hangs like a sword over the heads of gay rights activists who will once again need to convince the masses that complete equality needs to be the norm in Singapore. Such changes, however, leave room for a future parliament to expand the definition of marriage to include same-sex relationships following the lead of countries such as Brazil, the United States of America, and Taiwan

As a global community, we need to make sure that LGBTQ couples and their families also get their due right to be recognised and protected with immediate effect.