“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.
Politically expedient to leave it to the Courts
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.”
Lessons from India
Mr Shanmugam described at length what happened in India to draw lessons from the India experience.
Consequences of leaving it to the Courts
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.
2 reasons to repeal 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What will remain criminalised, even if Section 377A is repealed is non-consensual sexual assault by males against other males.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.
The second reason: