‘Not possible’ to keep status quo on Section 377A given vulnerability to legal challenges: Edwin Tong

SINGAPORE: The current legal position on Section 377A is a “very untidy compromise”, with the law criminalising sex between men being “vulnerable” to legal challenges, said Minister for Culture, Community and Youth Edwin Tong, who is also Second Minister for Law.

This means that it was “not possible” for the Government to “keep to (the) status quo for much longer”, he told CNA on Monday (Aug 22).

Prime Minister Lee Hsien Loong on Sunday announced that Singapore will repeal Section 377A of the Penal Code, which was first introduced in the 1930s by the British colonial government.

Mr Lee, in his National Day Rally speech, added that the Constitution will also be amended to protect the definition of marriage as that between a man and a woman from being challenged in the courts.

In the interview with CNA, Mr Tong noted that there have been four applications to the Supreme Court in recent years to challenge the constitutionality of Section 377A. None of them has succeeded so far.

But in the most recent challenge earlier this year, the court, led by Chief Justice Sundaresh Menon, refrained from ruling on whether Section 377A violated Article 12 of the Constitution, which guarantees equality before the law, and reaffirmed that the law was “unenforceable in its entirety”.

The Government studied the judgment “very carefully” and with advice from Attorney-General Lucien Wong, it took the overall view that there is a “significant risk” that Section 377A could be struck down on the grounds that it breaches the Constitution’s Equal Protection provision, said Mr Tong.

The minister noted that instances of Section 377A being struck down by the courts have happened in other countries, including Asian countries like India.

“So we felt we can’t ignore this risk and do nothing. Because if that happens, if 377A is struck down, our marriage laws will also come under challenge on the same grounds,” Mr Tong said.

“This could lead to same-sex marriages being recognised in Singapore and this, in turn, will also have an impact on other laws and policies that are built on our existing definition of marriage.”

As these issues are best resolved by the elected Government rather than the courts which look at issues “only from a strict legal position”, Mr Tong said the Government felt that it “should take responsibility and act now”.

Deputy Prime Minister and Finance Minister Lawrence Wong, who was at the same interview on Monday, described court processes as “adversarial” by nature.

“Any court judgment will lead to a win-lose outcome for the parties involved, and such an outcome will divide and polarise our society further,” he said.

“The courts themselves have said that the political realm is the more obvious choice for such decisions to be made because through a political process, we can accommodate and balance the different views and aspirations of Singaporeans.”