Retention of gay sex laws “cannot be justified”: Singapore’s law society to government

Retention of gay sex laws “cannot be justified”: Singapore’s law society to government

The Law Society of Singapore has released a statement disagreeing with the Ministry of Home Affairs' proposal to retain the country's laws against gay sex.

The Law Society of Singapore – at the invitation of the Ministry of Home Affairs (MHA) last November to comment on the government’s proposed amendments to the Penal Code – has advised the government that “the retention of s.377A in its present form cannot be justified.” Last November, MHA announced their intention to retain gay sex laws although laws which criminalise anal and oral sex between consenting heterosexual adults will be repealed as part of Singapore's first major penal code amendments in 22 years. Section 377A currently makes “gross indecency” between two males an offence punishable by up to 2 years’ imprisonment.

The Law Society, the professional association of lawyers in Singapore, which formed an ad hoc committee of 16 members to study the matter has issued a report which was reproduced in part by gay activist group People Like Us on its web site: “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.”