Everyone asks whats happening with 377A. No one asks what happened to 377.

 

The Supreme Court ruled yesterday that it is, in fact, constitutional that 377A resides in law and they will leave it at that. Which is perfectly normal.

The articles that give power to overturn something like 377A in other (more liberal) countries, are the lines enforcing rights to family life, private life and freedom of marriage. This could be found in the form of a Human Rights Act, or a regional treaty such as the European Commission of Human Rights.

The Singapore Constitution have no such article and that is why the courts found it legit for 377A to exist.

Neither do the courts have power to overturn such legalisation because of the doctrine of Parliamentary supremacy. Appointed judges have no business changing statutory laws that have been passed by an elected Parliament. Their job is merely to interpret and judge by means of that interpretation, or to build on binding precedence. There is nothing in our Constitution to provide for such an interpretation for 377A to be repealed.

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But while we’re on this topic, let’s think a little bit about 377A – the section of the Penal Code that activists are seeking to repeal.

The exact wording says thus:

“Any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to 2 years.”

Realise that it says “any male person”? Why so specific?

What about women?

To understand this, we have to recall what the original Section 377 was seeking to enforce. Section 377 of the Penal Code was a law on sex against the “order of nature”. This covered: anal sex, beastiality, oral sex and man-man woman-woman sex. This was repealed in October 2007 by – yes – a conservative PAP government in 2007. (Section 377 now is rephrased to criminalise “sexual penetration of a corpse”…which is still unacceptable by society… for now).

The law is now silent on lesbian sex between women.

The topic of homosexuality is divided straight down the middle. Whilst the voices are growing stronger arguing “for”, there is still a good, strong majority who will be deeply upset by any overnight changes. This is observed by the idealogical fights seen of late – penguin books, Pink v Red Dot v Wear White.

 

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I dare say even if Party whips were lifted and elected representatives are asked to take a vote, it would be equally split down the middle. No elected opposition politician has taken a public stance against/for 377A, so we don’t know what the Workers Party direction is.

The original 377 had been removed. I’m pretty sure 377A would be removed in time to come.

I’d like to quote one of my friends (who’s a girl who loves girls), “…I don’t know what they’re so uptight about…it’s not as if when I walk along the streets i’m going to be stoned to death. I don’t face discrimination and 100% of my friends, colleagues, bosses and family don’t bother about my private life. Relax lah.”

 

 

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Tay Leong Tan

Tay Leong Tan is a collective of 3 writers. Tay, Leong and Tan. (Who were you expecting?!) We are enthusiastic about labour issues, economics and current affairs in particular.

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8 Comments

  • “Neither do the courts have power to overturn such legalisation because of the doctrine of Parliamentary supremacy. Appointed judges have no business changing statutory laws that have been passed by an elected Parliament.”

    Not to be pedantic but I’m not so sure if the doctrine of Parliamentary supremacy is as absolute as you put it to be.

    Yes, there is a general reluctance on the part of the courts to overrule Parliament, but (1) that does not mean that they can’t, and (2) it should be better attributed to the concept of separation of powers, more so than Parliamentary supremacy. In other words, different organs should stick to their respective roles.

    Courts do not just ‘interpret’ legislation. They interpret legislation in light of the Constitution. In fact that’s how the courts arrived at their decision – by using a strict interpretation of the protections granted by the Constitution (which excludes gender, orientation etc). Had the Constitution included orientation, the result may very well be different.

    • If it isn’t absolute, are you saying that Courts have a right to question a valid act of Parliament? If they do, then what are all the politicians trying to get elected for? So no, Courts cannot overrule Parliament. Interpretation is another matter altogether – that’s what the activists are trying to do: to hunt for incompatibility with existing legislation.

      And of course the Courts interpret in light of existing laws, thats what the article was trying to say: that judges are unable to interpret against the Constitution nor any other existing law for that fact, because there are no provisions for it. And if there are no provisions for it, it is a matter for Parliament to decide.

      • Yes, I am saying that.

        Parliament’s supremacy is not absolute in the sense that they *cannot* pass whatever laws they want. The laws passed must be valid according to the Constitution; the Constitution (not Parliament) is absolute, and where provisions are not in line, the courts can and probably will overrule them. So yes, they have a right to question an act of Parliament *to the extent of the incompatible provisions*.

        Of course in practice that doesn’t happen, in a small part due to the fact that before a bill is passed, it will be checked by the Presidential Council for Minority Rights. And in any case Parliament won’t usually want to pass an Act which will blatantly go against Constitutional provisions.

        Of course, also, you can argue that the Constitution is still effectively the will of Parliament, given how Parliament can easily change it and has indeed done so. But by and large the Constitution is not meant to be changed frequently, which is why when Parliament wants to do so, it has to abide by the onerous rules required to change it. The Constitution is entrenched and set above Parliament.

        Parliamentary supremacy as a concept is a unique preserve of states like the United Kingdom, which can arguably repeal whatever statutes it wants, *even constitutional statutes* by way of simple majority.

        What I think you are really arguing is that the courts should stay out of extra-legal issues, which are properly the domain of Parliament. That is the doctrine of separation of powers, NOT parliamentary supremacy.

      • “If it isn’t absolute, are you saying that Courts have a right to question a valid act of Parliament? If they do, then what are all the politicians trying to get elected for? So no, Courts cannot overrule Parliament. Interpretation is another matter altogether – that’s what the activists are trying to do: to hunt for incompatibility with existing legislation.”

        That’s not true. His point is that if Parliament were to pass a law discriminating against gender, race, religion etc. It could well be “valid”, and passed by elected politicians. But the court would be well within its power to strike it down (since these are explicitly named as such). That’s the whole point of a constitution.

  • Er, only people who have their heads in the sand and don’t care about anyone else can claim that LGBT people don’t face discrimination. I know numerous LGBT people who have been fired from their jobs when their bosses found out they were gay. I know gay boys who were beaten up in school. There is an entire website dedicated to LGBT people chronicling the abuse they have faced in schools. I just counselled a young LGBT person who was thrown out of her home and her grades – and future education – suffered as a result. In fact, I know a lot of young gay people who face such abuse from family, including being thrown out of their houses.

    377A’s existence or abolition is not going to solve any of these problems. But anybody claiming that there is no homophobia, that 377A isn’t state sanction for terrible stigma and discrimination, is deluded.

    • I also know many gay people who live perfectly functional lives – sure, they may be a bit more shy about revealing their status. But that’s nothing to do with “fear of prosecution”, more so that conservative society and religion cannot accept.

      377A doesn’t do as much stigmatizing than religion does. And it is far easier to get Parliament to repeal one piece of law than to get a Church or Mosque to change what they preach.

      • “sure, they may be a bit more shy about revealing their status”

        Come on. You don’t speak for them, and you’re delegitimising their situation as being “a bit shy”. This doesn’t help their cause at all…

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