Singapore’s Law Society has advised the government that “the retention of s.377A in its present form cannot be justified.” This refers to the section in the Penal Code that makes “gross indecency” between two males an offence punishable by up to 2 years’ imprisonment.
People Like Us welcomes the Law Society’s stand on the matter and urges the government and Parliament to take its advice and add the repeal of Section 377A to the long list of amendments intended for the Penal Code.
The Law Society’s reasons for urging repeal coincide with arguments long made by PLU: that law and morals should be separate matters, with law seeking only to address harmful conduct, and private consensual homosexual conduct is not, by today’s understanding, harmful; and that deliberately unenforced statutes only bring the law in its entirety into disrepute.
The Law Society did not come to any conclusion about the constitutionality of Section 377A, but noted that “in other jurisdictions, legal discrimination based on sexual orientation has been considered against constitutional guarantees of equal protection.” PLU hopes that in future the Society will take a more definitive, pro-civil-rights stance on this point.
The Law Society, the professional association of lawyers in Singapore, was invited by the Ministry of Home Affairs last November to comment on the government’s proposed amendments to the Penal Code. The Society formed an an ad hoc committee of 16 members to study the matter. This committee reported to the Society’s 21-member Council, whose report has now been issued.
The Section of the Council’s report pertaining to s.377A is appended below:
The majority of the Council considered that the retention of s.377A in its present form cannot be justified. This does not entail any view that homosexuality is morally acceptable, but follows instead from the separation of law and morals and the philosophy that the criminal law’s proper function is to protect others from harm by punishing harmful conduct. Private consensual homosexual conduct between adults does not cause harm recogniseable by the criminal law. Thus, regardless of one’s personal view of the morality or otherwise of such conduct, it should not be made a criminal offence.
Moreover, the assurance given by [the Ministry of Home Affairs (MHA)] in the Explanatory Notes to Proposed Amendments to the Penal Code that were initially issued by MHA that prosecutions will not be proactively prosecuted under this section is an admission that the section is out-of-step with the modern world. The retention of unprosecuted offences on the statute book runs the risk of bringing the law into disrepute.
Council also recognised that the above view did not necessarily represent the views of its members collectively. A significant minority of Council members as well as members of the Society at large have an opposing view, and strongly support retention of s.377A in the Penal Code. They took the view that the criminal law can and should be deployed to define what the majority or a significant proportion of society believe to be unacceptable conduct even when it takes place in private between consenting adults, and that there are sufficient jurisprudential and logical grounds for this.
Differing views were expressed on the constitutionality of s.377A. In other jurisdictions, legal discrimination based on sexual orientation has been considered against constitutional guarantees of equal protection. Council did not come to a concluded view on the constitutionality of s.377