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. The ruling is correct. The legislation was enacted lawfully and its use is not ultra vires, or out of the powers of the administration.
In Western liberal democracies, there are other pieces of human rights legislation that prevent the existence of a law such as the 377A.
The Singapore Constitution has no such conflicting law and that is the simple reason why courts found it legit for 377A to continue. Although courts have the power to make and amend laws, they may not do so when it is not their business to do so. 377A is one such piece of law: its subject matter is the domain of Parliament.
Although courts have power to overturn legalisation, at the same time they have to observe the doctrine of Parliamentary supremacy. There must be good reason why there is a need to change statutory laws passed by an elected Parliament. Their primary 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 There is nothing in our Constitution to provide for such an interpretation for 377A to be repealed.
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?
Before 377A, there was Section 377. A law that had even wider coverage.
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. Basically anything that isn’t nuts to bolts.
This was repealed in October 2007 by – yes – a conservative PAP government in 2007. 377 was then made more precise: 377 today prohibits necrophilla (sexual penetration of a corpse), 377B prohibits sexual penetration of a living animal (i’m not sure why the need for the animal to be living), 376 prohibits incest.
The law is now silent on lesbian sex between women.
Laws against homosexual acts is already half repealed, depending on whether or not you see it as half empty or half full.
A repeal of the law is not confined to just moral and theological grounds alone. There are also security concerns.
Religious organisations strongly resist it and we live in a muslim dominant region, there is a need to be mindful of how these countries react to changes in our laws. For example; will we be seen as a place of sin and pleasure? How will that affect bilateral relations?
Then there is the unorthodoxy: What will the extremist groups make of us? Would that endanger national security? Don’t forget that one of the motivators of terrorism on America is that they have become a nation void of morals.
Then there is the floodgates argument: How would the government respond to other groups lobbying other causes? For example, why don’t we get rid of laws prohibiting polygamy? It is likewise a freedom to love. Why shouldn’t women be allowed to marry multiple men? After all muslim men are allowed to take on multiple wives.
My point is: It is not easy to repeal this piece of law. There will necessarily be large-scale amendments of national policies, laws and diplomatic positions. It takes time. The image of a pen crossing out 377A is just cartoon fiction, legislative amendments do not work like this.
But it is not a matter of “if” it will be removed, it is a matter of “when”.
The original 377 had been amended. I’m pretty sure 377A would be changed also in time to come.
It will not come in the form of referendum. To the Singapore government, a referendum is a sign of administrative weakness. When you see an MP speaking about this matter in Parliament, that is a good sign that changes are coming.
For the religious organisations and the rest of society, it is now time to think about how your societies will adapt to this change.
That is the direction that the world is going and it is better to be ready for it than for the nation to be caught off guard.