Sunday, 9 September 2018

Section 377A: Either enforce the law or repeal it

Amending 377A: Unlike courts, Parliament will take into account views of public
Law and Home Affairs Minister K. Shanmugam says depending on the legislation, public opinion is often relevant during policymaking
By Charmaine Ng, The Sunday Times, 9 Sep 2018

Whether Section 377A will be repealed or amended will be a matter for Parliament to decide, said Law and Home Affairs Minister K. Shanmugam yesterday.

He added that depending on the legislation, public opinion is "often relevant" during policymaking in Parliament. Section 377A is the law that criminalises consensual sex between adult men.

India's Supreme Court had on Thursday ruled that homosexuality was not a crime, in a decision that decriminalised Section 377 of the Indian Penal Code.

The minister was speaking to the media yesterday about the Indian Supreme Court statement that the constitutionality of the law does not depend on public opinion, on the sidelines of a Ministry of Home Affairs event.

Mr Shanmugam said "that is the jurisprudential approach that many courts around the world, including Singapore, take". "What the public thinks, whether it's a majority view or minority view, these are usually not considerations. You look at the law and you compare it against the Constitution," he added.

However, when it comes to whether a piece of legislation should be amended or repealed, that would be a matter for the Executive and the Parliament, he added.

In Singapore, the Executive comprises the Cabinet.

"The Executive proposes and Parliament decides and usually, depending on the legislation, public opinion can be relevant," he said.



When asked whether Section 377A can be challenged again in Singapore courts, Mr Shanmugam said: "Technically, it is possible for people to bring a challenge and there are rules, jurisprudence on how such challenges will be dealt with by the courts."

A legal challenge to strike down Section 377A failed in 2014, when the highest court in Singapore rejected arguments that the provision contravened the Constitution.

Gay couple Gary Lim, 46, and Kenneth Chee, 38, as well as Mr Tan Eng Hong, 51, had said the provision was discriminatory and should be declared void by the court.

On Thursday, former ambassador Tommy Koh had called for Singapore's gay community to challenge Section 377A, following India's scrapping of the same British colonial-era legislation.

Professor Koh had made the comment in a Facebook post by Professor Simon Chesterman, dean of the Faculty of Law at the National University of Singapore, about the ruling.



Mr Shanmugam had said on Friday that Singapore society has to decide which direction it wants to go on the issue of Section 377A.

He said: "(In Singapore) if you look at this issue, it is a deeply split society. The majority are opposed to any change to Section 377A, they are opposed to removing it."

However, he said a "growing minority" want to have it repealed.

"The Government is in the middle," he added.

Yesterday, Mr Janadas Devan, chief of government communications at the Ministry of Communications and Information, reiterated Mr Shanmugam's comments in a Facebook post.

He added that the "uneasy compromise" on Section 377A - a term used by Prime Minister Lee Hsien Loong during a BBC interview last year - "remains the only viable position" for Singapore at the moment.

"Given the majority view, the law remains on the books. But the Government does not and will not enforce 377A," said Mr Devan, adding that this was the view held by all three prime ministers, including the late Mr Lee Kuan Yew.

He noted that the founding prime minister had said homosexuality should not be criminalised because he believed it was genetically determined.

However, in his Facebook post, Mr Devan also highlighted that the late Mr Lee had said the law should not be changed in such a way that it upsets the "sense of propriety and right and wrong" of the majority. Also, people should not "go around like this moral police - barging into people's rooms".

Meanwhile, an online petition by a netizen to keep Section 377A in Singapore has garnered more than 34,000 names in about 10 hours, after it was started at 2pm yesterday.














Shanmugam on India decriminalising gay sex: Singapore society to decide which direction to take
Majority are opposed to removing Section 377A but a growing minority want it repealed, he says
By Tan Tam Mei, The Straits Times, 8 Sep 2018

Singapore society has to decide which direction it wants to go on the issue of Section 377A, the law which criminalises sex between men, said Minister for Law and Home Affairs K. Shanmugam.

His comments came after India's Supreme Court on Thursday ruled to decriminalise Section 377 of the Indian Penal Code, which made consensual gay sex a crime.

Mr Shanmugam told reporters that in Singapore, society is deeply split on this issue. "The majority are opposed to any change to Section 377A, they are opposed to removing it," he said.



However, he noted that a growing minority want the law to be repealed. "The Government is in the middle." He said the issue relates to social values, and added: "Can you impose viewpoints on a majority when (the issue is) so closely related to social value systems?"

Mr Shanmugam said his personal point of view is that care has to be taken against criminalising lifestyles and sexual attitudes, and treating people involved as criminals.

"(But) it would be wrong for me to impose my personal views on society or as a policymaker."

He added: "So, really, I think society has got to decide which direction it wants to go. And the laws will have to keep pace with changes in society and how society sees these issues."

The offence carries up to a two-year jail term for men who, in public or private, commit acts of "gross indecency" with other men.



Mr Shanmugam also made the point that the law is there, but generally there have been no prosecutions for private conduct.

"People openly express themselves as gay, I mean you have got the gay parade. Police even approved the licensing for it, no one gets prosecuted for declaring themselves as gay. So, really, when was the last time someone was prosecuted?" he said, adding this was the approach as set out by the Prime Minister.

A legal challenge to strike down Section 377A failed in 2014, when the highest court in Singapore rejected arguments that the provision contravened the Constitution.

Gay couple Gary Lim, 46, and Kenneth Chee, 38, as well as Mr Tan Eng Hong, 51, said the provision was discriminatory and should be declared void by the court.

Their argument was that Section 377A infringed their right to equal protection under the law, as guaranteed by Article 12 of the Constitution, and violates their right to life and liberty, as guaranteed by Article 9.

But the apex court held that Section 377A did not violate Article 9 as the phrase "life and liberty" referred only to the personal liberty of a person from unlawful incarceration, and not to the right of privacy and personal autonomy.



As for Article 12, the court held that Section 377A passed a classification test used by the courts in determining whether a law complies with the constitutional right of equality.

The court also ruled that Section 377A fell outside the scope of Article 12, which forbids discrimination of citizens on grounds including religion, race and place of birth. The court observed that Article 12 did not contain the words "gender", "sex" and "sexual orientation", which related to Section 377A.



During an interview last year with the BBC, Prime Minister Lee Hsien Loong said that Singapore "is a society which is not that liberal on these matters. Attitudes have changed, but I believe if you have a referendum on the issue today, 377A would stand''.

Asked whether he would like to get rid of 377A, PM Lee replied: "My personal view is that if I do not have a problem, this is an uneasy compromise, I am prepared to live with it until social attitudes change."









Tommy Koh's Facebook comment reignites debate on Singapore's gay sex law
By Yasmine Yahya, Senior Political Correspondent, The Straits Times, 8 Sep 2018

India's decision to strike down a law banning gay sex has reignited a debate on the issue here, especially after a prominent figure voiced his support for Singapore to move in the same direction.

In a Facebook comment on Thursday that has been shared widely, former ambassador Tommy Koh wrote: "I would encourage our gay community to bring a class action to challenge the constitutionality of Section 377A". Section 377A is the law that criminalises consensual sex between adult men, but it is not actively enforced.

Professor Koh made the comment in a Facebook post of Professor Simon Chesterman, dean of the National University of Singapore Faculty of Law, who shared an article. In the post, Prof Chesterman had congratulated a former classmate and others who had helped move the needle on the legal issue in India, culminating in Thursday's landmark ruling.

When a Facebook user pointed out to Prof Koh a failed attempt in Singapore in 2014 to challenge the constitutionality of 377A, he simply replied: "Try again."

Prof Koh also liked a Facebook post by Mr Janadas Devan, chief of government communications, who wrote yesterday: "Speaking personally, I support Tommy's position. 377A is a bad law... Sooner or later, it will go. Pray sooner rather than later."

Members of the lesbian, gay, bisexual and transgender (LGBT) community cheered Prof Koh.

Organisers of the annual Pink Dot rally, using the hashtag #tryagain on their Facebook page, said: "Time to get rid of the archaic law left behind by the British!"



Mr Leow Yangfa, executive director of Oogachaga, a non-profit organisation working with the LGBT community, told The Straits Times that although Section 377A is not proactively enforced, its continued existence creates an environment where it is acceptable to treat members of the LGBT community in an unequal way.

But conservative leaders have begun to fret. Pastor Lawrence Khong, chairman of LoveSingapore, a network of more than 100 churches here, said: "I am somewhat concerned, perhaps even disappointed, that a public and some would consider a government figure is making a statement like that. It does not come across as being helpful to building cohesion in society."

He urged the Government to take a cautious approach on the issue.

The Singapore Islamic Scholars and Religious Teachers Association (Pergas) could not be reached for comment. It had previously asked Muslims not to attend events that "support transgression" of Islamic teaching on the family, including events in support of the LGBT community.



Lawyer Lim Biow Chuan, who is Deputy Speaker of Parliament, said the Government has been taking a cautious stance on the issue for many years. The Government has stated that to "accommodate the sensitivities of different communities so that there is room for all to exist harmoniously together", Section 377A is not proactively enforced, and all citizens, regardless of their sexual orientation, are free to lead their lives and pursue their activities in their private space without fear or violence or personal insecurity.

Mr Lim thinks reviewing 377A now will divide society. "Maybe in the future, as people's values develop and change, we may find a better time to do so."

Additional reporting by Theresa Tan

















Indian Supreme Court decriminalises consensual gay sex in landmark verdict
By Nirmala Ganapathy, India Bureau Chief, The Straits Times, 7 Sep 2018

India's Supreme Court yesterday ruled that homosexuality is not a crime in the world's largest democracy, in a move hailed as a significant step for individual rights.

"We have to bid adieu to prejudices and empower all citizens," the Supreme Court said in the landmark judgment.



Chief Justice Dipak Mishra, who led a five-member bench that struck down the law, said the lesbian, gay, bisexual and transgender (LGBT) community "has the same rights as that of any other ordinary citizen", adding: "Criminalising gay sex is irrational and indefensible."

Section 377 of the Indian Penal Code, which made consensual gay sex a crime, had a maximum jail sentence of 10 years and was enacted in 1861, when India was under British colonial rule.

Based on Victorian-era criminal law, the statute remains on the books in several former colonies, including Singapore and Malaysia.

England and Wales decriminalised gay sex in 1967, and Scotland in 1980. The law prohibited "carnal intercourse against the order of nature with any man, woman or animal", and was interpreted to include consensual gay sex, creating an atmosphere of fear in the community.

Only consensual gay sex was decriminalised by the Supreme Court.



Lawyers working on the case called it a historic moment. "It is a great victory. The whole of India needs to understand we are in a new freedom era," senior lawyer Anand Grover told reporters.

Ruling party and opposition politicians alike welcomed the decision. Bharatiya Janata Party spokesman Gaurav Bhatia said on Twitter: "An archaic 156-year-old Section 377 makes way for fundamental rights of the LGBT community. Proud of our Supreme Court."

The Congress Party said: "We welcome the progressive and decisive verdict from the Supreme Court, and hope this is the beginning of a more equal and inclusive society."

Members of the LGBT community in India routinely face discrimination and are often threatened with legal action, even though the law was rarely implemented.



The road to decriminalisation was not a straight one. Section 377 was first struck down in the Delhi High Court in 2009 on the grounds that it violated the fundamental rights of life and liberty and the right to equality guaranteed in the Constitution.

But the Supreme Court reinstated it four years later following an appeal by a loose coalition of Hindu, Muslim and Christian groups, saying the law "does not suffer from the vice of unconstitutionality".



Five high-profile petitioners then challenged the Supreme Court order in a petition, culminating in yesterday's judgment. People who had gathered to hear the decision cheered and hugged one another.

College student Kabir Taneja, 18, who described himself as transsexual, said: "This is going to reduce police harassment. It is no longer a legal threat."

His sentiment was echoed by Mr Bhuvan Kathuria, who held a sign saying "Love is gender free".

"It was long overdue. It was worth the wait. But the battle has just begun," he said of the judgment. "We have got legal acceptance. Next, we need to fight for social acceptance... This is a step in the right direction."














The apex court ruling
The Straits Times, 8 Sep 2018

• India's Supreme Court on Thursday unanimously repealed one of the world's oldest bans on consensual gay sex in a groundbreaking victory for gay rights.

• Chief Justice Dipak Mishra, who led a five-member Bench that struck down the law, said the law was "irrational, indefensible and manifestly arbitrary".

• In their ruling, the justices said homosexuality was "natural" and that gays are to be accorded all the protections of the Indian Constitution.



• Another judge, Justice Indu Malhotra, said "history owes an apology to members of the (gay) community for the delay in ensuring their rights".

• Section 377 of the Indian Penal Code, which made consensual gay sex a crime, was enacted in 1861, when India was under British colonial rule.

• The law was first repealed in the Delhi High Court in 2009, but was reinstated in 2013 following an appeal by a loose coalition of religious groups.

NYTIMES















Narendra Modi's govt silent as Indian media hails court ruling to decriminalise gay sex
The Straits Times, 8 Sep 2018

NEW DELHI • Indian media - including several conservative outlets - yesterday hailed a Supreme Court ruling to decriminalise gay sex, while highlighting a "deafening" silence from Prime Minister Narendra Modi's Hindu nationalist government.

Banner front-page headlines such as "Love at first right", "Rainbow nation" and "Independence day" greeted the verdict of the top court to strike down the heart of Section 377, a law introduced by the British rulers in 1861.



Many said the five justices may have opened the door to demands for greater civil rights for long-marginalised gays and lesbians, including same-sex marriage.

The conservative Hindu newspaper called the verdict "a reaffirmation of the right to love" and "a welcome departure from centuries of 'hetero-normative' thinking".

The judges had "furthered the frontiers of personal freedom and liberated the idea of personal rights from the pressure of public opinion," it added in an editorial.



The Hindustan Times warned that the lesbian, gay, bisexual and transgender community will still face condemnation from their families and colleagues.

"Harassment and violence will continue to occur," it warned.

"But if the long legal battle and the courage of queer people and communities are anything to go by, this fight for equal rights will not end. It will grow even stronger now that even the apex court has said there is no going back."

Amid pictures of celebrating activists, Google India put out a rainbow flag on its homepage and Facebook changed its display picture to a multi-hued icon. The United Nations and rights activists around the world gave Twitter support to the Supreme Court ruling. But Mr Modi's right-wing government has yet to make a comment on the ruling.

Mr Modi's administration had initially opposed dismantling Section 377, though in July, government lawyers said they would give in to the "wisdom" of the top court.

Justice D.Y. Chandrachud said the government should have taken a categorical stand one way or the other instead of being ambivalent, the Hindu newspaper reported the judge as saying.



The Indian Express daily said the ruling Bharatiya Janata Party's (BJP) silence on the issue was "deafening" and "deceptive".

India's main opposition Congress and other small regional parties have welcomed the verdict.

The BJP's ideological Hindu nationalist backer, the Rashtriya Swayamsevak Sangh (RSS), said it does not consider homosexuality a crime, but it did not support same-sex relations.

"Traditionally, Indian society does not accept such relations," it said in a statement.

AGENCE FRANCE-PRESSE





















More than 4,000 sign online petition to repeal 377A
By Sue-Ann Tan, The Straits Times, 10 Sep 2018

A petition to repeal a law that criminalises consensual sex between adult men - Section 377A - has attracted at least 4,000 signatories after it was created yesterday.

This comes after the Indian Supreme Court struck down a similar section of the Indian Penal Code last Thursday.

The petition, titled "Ready for Repeal" and hosted on website GoPetition, was created by Singapore film-maker Glen Goei and another person named Johannes Hadi.

Other named signatories of the petition include Mr Ho Kwon Ping and Ms Claire Chiang. It was not clear if they are indeed the Banyan Tree Holdings founder and his wife.

The petition will be sent to the Penal Code Review Committee and local Members of Parliament by Sept 24.



It is also supported by Pink Dot SG. The organisation wrote a statement on its website that it was dismayed that the latest report on criminal law reform did not include the consideration and repeal of 377A.

"Section 377A would have been the perfect candidate for such a review and repeal. It is a colonial relic of Victorian values that was left behind by the British from before Singapore's independence. The law treats an already unprotected segment of citizens as unequal by characterising them as unconvicted criminals," said the statement.

Meanwhile, there is another petition, called "Please Keep Penal Code 377A in Singapore", on website change.org. It has garnered at least 71,000 signatures and was created over the weekend.










* Singapore DJ files fresh court challenge against Section 377A, arguing it is unconstitutional
Court should depart from 2014 precedent, he says; lawsuit comes days after India ruling
By Selina Lum, Law Correspondent, The Straits Times, 12 Sep 2018

A disc jockey has filed a court challenge against Section 377A of Singapore's Penal Code, arguing that the law, which criminalises sex between men, is unconstitutional.

Mr Johnson Ong Ming, 43, who goes by the stage name DJ Big Kid, filed his challenge with the High Court on Sept 10, four days after India's Supreme Court struck down a similar law.

That decision sparked a renewed debate on Section 377A here, with camps on both sides starting petitions either to keep the law, or repeal it. In the wake of the Indian decision, Singapore's former ambassador Tommy Koh also suggested that a new attempt be made to challenge Section 377A in the courts.



Mr Ong is being represented by lawyer Eugene Thuraisingam, who confirmed to The Straits Times that the case has been filed. He said he is acting pro bono. The Attorney-General has been listed as the defendant. A pre-trial conference has been fixed for Sept 25.

A legal challenge against Section 377A failed in 2014, when the highest court in Singapore rejected that the provision was unconstitutional. Gay couple Gary Lim, 46, and Kenneth Chee, 38, as well as Mr Tan Eng Hong, 51, had then argued that the provision was discriminatory.

In his filing, Mr Ong, who is in a relationship with a man, said he was aware of the 2014 decision, but argued the court should depart from that precedent given international judicial developments since 2014, including the India Supreme Court's decision to strike down its version of the law.

He is also relying on a 2015 report by the United States Substance Abuse and Mental Health Services Administration which argues that "sexual orientation is unchangeable or suppressible at unacceptable personal cost".

Mr Thuraisingam told The Straits Times: "We will be presenting medical and scientific evidence to show that sexuality is inherent and is not a choice."

He said the previous challenge here did not deal strongly with this point. If sexuality is found to be inherent, then Section 377A falls foul of Article 9 of the Singapore Constitution, which guarantees life and personal liberty, he argued.



In the court filing, which was seen by The Straits Times, Mr Ong also argues that Section 377A targets only gay men and not gay women, and so goes against the right to equality enshrined in Article 12 of the Constitution.

Last week, Home Affairs and Law Minister K. Shanmugam said Singapore society has to decide which direction it wants to go on this issue of Section 377A, noting that the nation is "deeply split" and that the Government is in the middle.

A recent survey by Ipsos Public Affairs, an independent market research company, found that 55 per cent of the people in Singapore support Section 377A, while 12 per cent said they opposed it.













** Church groups say they do not support repeal of gay-sex law, Section 377A
By Melody Zaccheus, Heritage and Community Correspondent, The Straits Times, 14 Sep 2018

The National Council of Churches of Singapore (NCCS) said in a statement on Thursday (Sept 13) that it does not support the repeal of Section 377A of the Penal Code, adding that it believes "that the homosexual lifestyle is not only harmful for individuals, but also for families and society as a whole".

Although it is not enforced, Section 377A criminalises sex between men.

The council, which represents about 200 churches, said it agrees with the 2014 ruling of Singapore's apex court that Section 377A is constitutional, and "supports the Government's decision to retain it".

The statement goes on to say that the Bible "clearly and categorically prohibits homosexual behaviour because it is a perversion of the way in which God has ordered human sexual relationships".

"The repeal of Section 377A would result in the normalisation and promotion of this lifestyle, which in turn would lead to undesirable moral and social consequences, a slippery slope as seen in some countries taking this step," it said.



The Straits Times reported this week that a disc jockey filed a court challenge against Section 377A with the Singapore High Court. The move comes days after India's Supreme Court struck down a similar law. That decision sparked a renewed debate on the legislation here.

A legal challenge against Section 377A failed in 2014, when the highest court in Singapore rejected that the provision was unconstitutional.

The NCCS said in its statement: "Above all, the council urges Christians to pray that God will protect the institutions of marriage and family because they are indispensable for the well-being of the future generation and the flourishing of our society."

The Alliance of the Pentecostal-Charismatic Churches of Singapore, which has about 50 churches, in a statement echoed the council's stance.

It said that while many cosmopolitan cities have prided themselves on their quick adaptation of popular views and culture, "Singapore is a nation that remains unique in its strong preservation of family values - including its view on marriage as a union between a man and a woman".



Its chairman, Reverend Dominic Yeo, added that repealing it would have wider consequences, as it "brings to question the legitimacy and morality of every act the Penal Code currently deems as an offence".

He said: "When viewed in relation to Sections 375 through 377C, Section 377A serves a broader purpose of setting a moral position with regard to sexual activities and relationships, and in turn strengthen the social fabric of society.

"While our position may be viewed as 'conservative' or 'outdated', the church remains committed to upholding and promoting traditional family values that are the building blocks of our nation."

A petition to repeal the law has amassed almost 37,600 signatures since it was launched on Sunday.

Meanwhile, a petition to retain it has gathered almost 99,400 signatures since it was launched last Saturday.













Law that criminalises sex between men

The debate over 377A: Why repeal v remain is a hot issue in Singapore
The Penal Code's Section 377A, which criminalises sex between men, is in the spotlight again. Insight examines why the issue continues to stir up strong debate between opposing camps.
By Yuen Sin and Amelia Teng, Education Correspondent, The Sunday Times, 16 Sep 2018

Keep or repeal Section 377A of the Penal Code? This debate has been reignited in Singapore after a similar colonial-era ban on gay sex in India was struck down.

The issue came to the fore when Ambassador-at-large Tommy Koh, in a Facebook comment on a post by National University of Singapore law school dean Simon Chesterman earlier this month, suggested that Singapore's gay community bring a class action to challenge the constitutionality of Section 377A.

Last Monday, deejay Johnson Ong Ming, 43, filed a case at the High Court arguing that the law is unconstitutional.

Another group led by film-maker Glen Goei and legal trainee Johannes Hadi, whose petition against Section 377A has got more than 41,000 signatures since Sept 9, are appealing to the Ministry of Home Affairs for the statute to be included in an ongoing review of the Penal Code.

At the same time, a petition to retain 377A has gathered more than 102,000 signatures since it was launched on Sept 8.

Churches here have also expressed their concern and maintained their stance that the "homosexual lifestyle" is not acceptable, and the traditional family unit must be kept intact. Among those in favour of keeping 377A, some have shared videos or messages about the possible implications of making gay sex legal.

WHY IS 377A SO EMOTIVE?

Section 377A, says Singapore Management University (SMU) law don Eugene Tan, has become "valorised as being the last frontier for both camps".

"The 'retain' camp sees it as a high-water mark or 'safe harbour' for societal values they regard as desirable and wholesome."

This does not necessarily mean they want the law to be actively enforced or for the LGBT (lesbian, gay, bisexual and transgender) community to be discriminated against in other ways, he says. For some, the retention of 377A is "more of a shield, rather than a sword, for their values".

For the repeal camp, the presence of 377A on the statute books "is a clear sign of discrimination", adds Professor Tan. "A complete victory for either camp will be seen as a complete annihilation of the other, and that's not an outcome that is desirable. There will be a very strong pushback from the camp that lost or is seen to have lost."

Observers also point out how opposing sides have become more vocal in recent years. The annual Pink Dot rally, which supports the LGBT cause, has gained traction over the years and marked its 10th anniversary in July. The movement has encountered religious opposition from Christian and Muslim circles.

As Prime Minister Lee Hsien Loong noted back in 2007: "The more gay activists push this agenda, the stronger will be the pushback from conservative forces in our society."


DOES INDIA'S RULING CHANGE ANYTHING?

Attempts to overturn 377A in Singapore have been made before. In 2014, the highest court in the land rejected that the provision was unconstitutional after gay couple Gary Lim and Kenneth Chee, and another plaintiff, Mr Tan Eng Hong, argued it was discriminatory.

Among other things, the Court of Appeal ruled that Section 377A fell outside the scope of Article 12 of the Constitution, which forbids discrimination of citizens on grounds including religion, race and place of birth. The court observed that Article 12 did not contain the words "gender", "sex" and "sexual orientation".

And in the last comprehensive review of the Penal Code back in 2007, a petition filed by Nominated MP (NMP) Siew Kum Hong on behalf of a group of activists to repeal Section 377A stirred an emotional debate in Parliament.

That bid was unsuccessful, with PM Lee saying that while Singapore should recognise homosexuals as part of society, they should not set the tone for society or be considered a minority like Malays and Indians.

He also said that Singapore is "basically a conservative society" and that a "heterosexual, stable family is a social norm".

Has the latest Indian decision changed anything?

Legally, no, says National University of Singapore (NUS) law professor and former attorney-general Walter Woon, explaining that it is not binding in Singapore.

NUS law professor Thio Li-ann adds that Singapore's courts in matters of public law "do not blindly follow other courts", particularly when other judiciaries deal with politicised and highly controversial issues. "That would violate the separation of powers - the matter falls within the ambit of Parliament as the people's representatives. An overly politicised court degrades the rule of law."

In remarks to the media last week, Law and Home Affairs Minister K. Shanmugam said a decision on whether a piece of legislation should be amended or repealed would be a matter for the Executive and the Parliament to decide.

But the Indian decision has also set a fresh stage for the matter to be discussed again, given how Section 377A has similar colonial origins as India's Section 377, a law introduced by British rulers in 1861, NMP Kok Heng Leun, who is for repeal, points out.

This time, prominent members of the public, such as former senior diplomat Kishore Mahbubani, have also come forward to add their voice for change.

Mr Shanmugam said his personal view is that care has to be taken against criminalising lifestyles and sexual attitudes, and treating people involved as criminals. But he added that it would be wrong for him to impose his personal views on society or as a policymaker.

Former NMP Kanwaljit Soin, who has signed Mr Goei's petition to repeal Section 377A, says: "India is a traditional society which is very family orientated and they have repealed 377. (If 377A is repealed here), we are therefore not following the footsteps of Western liberals but in the footsteps of an Asian society."

WHY DO WE HAVE A LAW THAT IS NOT USED?

On Sept 8, Mr Janadas Devan, chief of government communications at the Ministry of Communications and Information, said in a Facebook post that the "uneasy compromise" to keep but not enforce Section 377A - a term used by PM Lee during a BBC interview last year - "remains the only viable position" for Singapore at the moment.

Still, in 2007, former MP Hri Kumar Nair, in giving what he said was a "lawyer's point of view", noted how Section 377A falls short of what a good law is or should be in some respects.

On the issue of not pursuing the law proactively, he asked: "Does it mean that the police will not act on complaints or that suspects may be investigated but ultimately not arrested or prosecuted? Or is it the case that the Attorney-General, who has prosecutorial discretion, may prosecute some but not all offenders?... But if the intention is not to do anything at all, then what is the purpose of having the law?"

During the same debate, Holland-Bukit Timah GRC MP Christopher de Souza pointed out that enforcement alone could not test how effective a law was. He highlighted how, despite a lack of prosecution, attempting suicide is an offence because it conveys the message that people should not take their own lives.

He added that it is a misconception to argue for the repeal of Section 377A on the grounds that "what goes on behind closed doors will not affect us, so no point criminalising it". Any repeal, he argued, "puts homosexual lifestyle on (a) par with heterosexual lifestyle".

Insight contacted seven People's Action Party MPs for comment on the 377A issue but they declined to comment or did not respond.

During the 2007 377A debate, the Workers' Party had said that its leadership was divided on the issue and, therefore, would not push for the law to be repealed or kept. WP media chair and Non-Constituency MP Daniel Goh says the party has not changed its position.

SMU law professor Tan Seow Hon tells Insight that if the longstanding law against gay sex is abolished, it would send the signal, as PM noted in 2007, that "our stance has changed".

She adds that "laws shape the moral ecology within which people live and make their choices", citing the example of the Media Development Authority's decision in 2013 to ban extramarital dating website Ashley Madison.

Given the divide in views, it will be difficult to build consensus. But Mr Kok believes that both sides should "sit down and have conversations, instead of accusations".


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