Singapore: Long overdue decriminalisation of adult consensual same-sex relations between men overshadowed by discriminatory constitutional amendment purporting to “protect” definition of marriage
28 November 2022
While long overdue, the welcome incoming repeal of Section 377A of Singapore’s Penal Code is overshadowed by the proposed constitutional amendment barring judicial review of laws and policies that discriminate against lesbian, gay, bisexual, transgender and intersex (LGBTI) persons. If passed, this amendment will undermine human rights, the separation of powers and the Rule of Law in Singapore, said the International Commission of Jurists (ICJ), together with ILGA Asia, the International Bar Association’s Human Rights Institute (IBAHRI) and Sayoni, in a joint statement and accompanying legal analysis today.
On 28 November 2022, Singapore’s Parliament will debate two Bills. The first one, if enacted, will repeal Section 377A of the Penal Code, which, to date, criminalizes consensual same-sex relations between men; the second one, if it passes, will amend the Constitution so as to insulate the existing definition of marriage – that is, as a union exclusively between a man and a woman – from being challenged before the courts.
The incoming repeal of Section 377A is a victory for human rights defenders and lawyers in Singapore who have been tirelessly advocating for a fairer and more inclusive country. Section 377A discriminates against LGBTI persons and is inconsistent with human rights, including the rights to non-discrimination, equality before the law and equal protection of the law without discrimination, privacy and freedom from arbitrary arrest and detention.
“The repeal of Section 377A is long overdue. Section 377A has caused untold harm and suffering to generations of LGBTI Singaporeans, and the discrimination it engendered has caused an entire community of Singaporeans to be treated unequally before the law. The effects of this discrimination are entrenched, and will not evaporate overnight with the repeal of Section 377A,” said Remy Choo, Managing Director of Remy Choo Chambers LLC, and one of the lawyers involved in the constitutional challenges to Section 377A in 2013 and 2018.
However, ILGA Asia, IBAHRI, ICJ and Sayoni express serious concern about the proposed constitutional amendment, whose stated aim is “to protect the definition of marriage” from constitutional challenges on the basis of the fundamental liberties protected under Part 4 of the Constitution of Singapore.
The constitutional amendment, if passed, will limit the ability of the courts in Singapore to review whether any laws, regulations, policies and practices (including executive actions), which based on a definition of marriage as a “union between a man and a woman”, have violated fundamental liberties.
This will, in effect, curtail independent judicial oversight and review over institutionalized discrimination against LGBTI persons and members of their families resulting from Singapore’s laws and policies. If adopted, as the Explanatory Statement appended to it notes, the constitutional amendment will, for example, apply to Singapore’s housing, education and media policies, which are all based on the notion of promoting and safeguarding the institution of marriage. As a result, discrimination enshrined in laws, regulations, polices and practices against LGBTI persons with respect to housing, education and media will be shielded from any legal challenges in the courts if such laws, regulations, policies and practices are said to promote and safeguard the institution of marriage as a “union between a man and a woman”.
“Section 377A, a relic of the British colonial era, is discriminatory and inconsistent with rights to non-discrimination, privacy, and freedom from arbitrary arrest and detention. While the repeal of Section 377A is the first step in the right direction towards equality for the LGBTIQ community, the proposed constitutional amendment intended to protect the definition of marriage from future constitutional challenges is of grave concern,” said Ajita Banerjie, Research and Policy Officer at ILGA Asia. “Not only will this codify institutional discrimination against LGBTIQ persons but also deny them the right to family, housing, health, education, employment, and underpin further acts of discrimination with no scope for redress.”
In Singapore, LGBTI persons continue to be discriminated against in multiple facets of their lives by the State. Such discrimination ranges from censorship of LGBTI-related expression and information in both offline and online spaces; housing policies that restrict LGBTI persons from purchasing public housing before the age of 35; and sexuality education policies to encourage “healthy, heterosexual marriages”.
“The government has said they want to do the right thing by repealing 377A. However, repealing is only the start of the journey in equality. LGBTI persons continue to face intersecting and compounding barriers of discrimination in their lived realities. Instead of trying to prevent the courts from reviewing whether laws and policies violate fundamental liberties and human rights, it should instead continue to do the right thing by rectifying laws, policies and practices that cascade violence and discrimination against LGBTI persons,” said Jean Chong from Sayoni, a LGBTI rights group in Singapore.
The ouster clauses contained in the constitutional amendment also risk eroding Singapore’s adherence to the Rule of Law and separation of powers. In an accompanying legal analysis of the two Bills, the ICJ underscores how the constitutional amendment intended to protect the definition of marriage will:
Entrench State discrimination against LGBTI persons by curtailing independent judicial review and oversight over discriminatory laws, policies and practices;
Place impermissible barriers to LGBTI persons accessing justice and effective remedies when their fundamental liberties and human rights are violated by the State;
Undermine the fundamental principles of the Rule of Law and separation of powers by placing limits on the courts’ constitutional functions to review legislative and executive actions; and
Continue the worrying trend of Singapore’s legislature passing ouster clauses that curtail the role of the courts to carry out judicial review.
“All power has legal limits, and ouster clauses that prevent the courts from protecting the fundamental liberties and human rights of LGBTI persons are harmful to the Rule of Law and the separation of powers. The ouster clauses in the proposed constitutional amendment will arbitrarily prevent LGBTI persons from seeking effective redress for violations of their human rights,” said Sam Zarifi, ICJ Secretary General.
We call on Singapore’s lawmakers to repeal Section 377A of the Penal Code without delay. In addition, however, we urge them not to pass the proposed constitutional amendment, since its adoption would legitimize further discrimination against LGBTI persons and threaten the Rule of Law and separation of powers.
We also call on Singapore’s authorities to review and rectify all existing laws and policies that are discriminatory against LGBTI persons, and take concrete steps to protect LGBTI persons and members of their families from discrimination, including through passing comprehensive anti-discrimination laws, and continuing their constructive engagement with the LGBTI community in Singapore.
The ICJ’s full legal analysis of the two Bills can be downloaded here.
Background
Section 377A of the Penal Code criminalizes acts of “gross indecency” between men, or the procurement or attempted procurement thereof, with a penalty of up to two years’ imprisonment.
There have been several rounds of constitutional challenges against Section 377A before the courts. Most recently, on 28 February 2022, the Court of Appeal, in Tan Seng Kee v Attorney General, ruled that Section 377A could not be used to prosecute consenting partners engaged in private sexual activity, but fell short of declaring Section 377A unconstitutional.
On 21 August 2022, Singapore Prime Minister, Lee Hsien Loong, announced in his National Day Rally speech the government’s intention to repeal Section 377A. He noted that this decision was made following the most recent judgment in the Court of Appeal, “the Minister for Law and the Attorney General have advised that in a future court challenge, there is a significant risk of s377A being struck down, on the grounds that it breaches the Equal Protection provision in the Constitution”. At the same time, he noted that the government intends to amend the Constitution to “protect the definition of marriage from being challenged constitutionally in the courts”, as the government does not think that the “courts are the right forum to decide such issues”.
