If the Government does nothing, litigation could change societal norms very quickly, says Shanmugam

We should not assume that the Courts will never strike s 377A down just because the Government chooses to retain it, Law and Home Affairs Minister K Shanmugam said in Parliament.

The CA has said that legal standards do still exist, and may be applied, to judge the legality or constitutionality of Section 377A.

“Our system has only worked well in all these years, because all three branches of the State – Parliament, the Executive, and the Judiciary – work within their respective boundaries, and have fulfilled their respective roles,” he said.

“But if Parliament does not do its duty, if Parliament does not deal with a law which is likely unconstitutional, then you may leave the Courts with no choice,” he added.

If Parliament does not do what it has to do, then the Courts will have to do what they don’t want to do.

Minister K Shanmugam

Politically expedient to leave it to the Courts

It would be easier for the Government to leave it to the Court as this is the path of least resistance and the Government would bear no blame.

Mr Shanmugam said, “If we approached this purely as politicians, concerned only with votes and not making anyone unhappy, or making as few people unhappy as possible, then that route of leaving it to the Courts would have been easier – pretend that these issues do not exist, need not have been talked about after the CA decision in Tan Seng Kee, leave it to the Courts.”

But that would not be a responsible thing to do. It would be an abdication of responsibility as elected representatives of the people, he said.

The position with s 377A is like a train approaching. The question is whether we have the courage to act, or rather dive for cover to protect yourself and leave society to face the train wreck?

Minister K Shanmugam

Lessons from India

Mr Shanmugam described at length what happened in India to draw lessons from the India experience.

The Delhi High Court ruled in 2009 that the India version of 377 was unconstitutional. The Court also said at that time that its decision would apply only until the Indian Parliament repealed Section 377. The Indian Parliament, however, did nothing.

The inaction by the Indian Parliament led to various court challenges and eventually in 2018, the law was struck down by the Indian Courts.

The Indian Supreme Court held that Parliament’s failure to delete Section 377 was not, in any way, a good reason for the Court not to strike down Section 377. When a provision violated the Constitution, the Courts must strike it down.

Fast forward to this year, 2022, the Indian Supreme Court has expanded the definition of family to include same-sex relationships.

Other jurisdictions like Taiwan, and some countries, like the US, have ended up legalising same-sex marriage through Court challenges.

If Parliament does not do its duty, if Parliament does not deal with a law which is likely unconstitutional, then you may leave the Courts with no choice.

Minister K Shanmugam

Consequences of leaving it to the Courts

Court processes, Mr Shanmugam said, are adversarial by nature. Either you win or you lose. There is no middle ground, no balancing of competing interests.

Going further, if the definition of marriage is changed through a Court challenge, there can be a cascading effect. Questions relating to media content, housing policies, and various other policies can all be challenged.

Such changes through the Courts are not in Singapore’s interests, Minister Shanmugam said. Our societal fabric will fray.

Parliament is better suited to resolve difficult societal issues

In Parliament, there can be consultation, discussion, and debate, Minister Shanmugam said. Considerations going well beyond the law can be taken into account, whereas Courts can only consider legal issues. Consensus can be forged, in Parliament, to bridge divergent viewpoints.

Open-ended resolutions are possible, instead of binary, win-lose outcomes, he added.

“Parliament has a duty to deal squarely with laws which are unconstitutional. If Parliament abdicates its duty and does not do what it has to do, then the Courts may have to do what they don’t want to do.,” said Mr Shanmugam.

Singapore's interests

Minister Shanmugam said, “If we want to act in the best interests of Singapore, then we have to move on this, given the legal analysis.”

In the United States, Court decisions on such issues have seriously affected the fabric of society, divided the society and unleashed partisan views on both sides of the divide.

If we have that in Singapore, our societal fabric will fray, Minister Shanmugam said.

“If the Government and Parliament do not take responsibility and instead stand by and do nothing, then litigation could change our societal norms very quickly.”

2 reasons to repeal 377A

Minister Shanmugam gave 2 reasons for proposing the repeal of Section 377A.

The first reason:

We should do so because there are no public order issues that are raised from such conduct, so it should not remain criminal.

What will remain criminalised, even if Section 377A is repealed is non-consensual sexual assault by males against other males. This remains a serious offence. Sexual acts committed by males against young persons remain a serious offence regardless of consent. Sexual acts between two males committed in public that offends public decency will remain an offence.

To those who feel that even though there are no public order issues, there are other reasons for keeping the law, Minister Shanmugam asked them to consider the second reason – the legal consequences.

The second reason:

This second reason is not a matter of conscience. It is a policy question. “It requires each of us to think carefully, and apply our minds,” he said.

It is a matter of considering the consequences for Singapore, given that there is a clear legal risk that Section 377A could be struck down.

We must think carefully and apply our minds to the consequential legal risks to the heterosexual family, housing, education and various other policies.

Knowing all these risks and refusing to take a position or be clear in how we will deal with it, is avoiding our responsibilities as MPs... It is easier politically, but it is also worse for Singapore and Singaporeans. To put it bluntly, that will be an abdication of duty. And it would be cynical if we, as MPs, did that. Because we would be putting political capital over doing what is good for Singaporeans.

Minister K Shanmugam

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