Tommy Koh makes good points about Section 377A

Published: 11th September 2018

Professor Koh made several good points when he commented on Facebook on the Indian Supreme Court’s decision to strike down Section 377 which bans consensual sex between gay men but not women. In Singapore, as in India, Section 377A is a colonial era law imposed by our former colonial masters and should be abolished. Abolishing 377A has been part of the Reform Party manifesto since before the 2011 GE.

While our apex court may have dodged the question of the unconstitutionality of Section 377A by saying that the constitutional right of equal protection under the law does not apply to gender or sexual orientation, this reading does not appear to be justified by a reading of Article 12(1). It is also increasingly out of step with modern democracies and even the rest of developed Asia.

Even Lee Kuan Yew could see that criminalising sex between gay men was unfair because sexual orientation is an immutable characteristic like skin colour or gender. In 2007 he said:

“If in fact it is true, and I have asked doctors this, that you are genetically born a homosexual – because that’s the nature of the genetic random transmission of genes – you can’t help it. So why should we criminalise it?”

Of course in LKY’s case he was only being consistent with his belief in eugenics.

377A is an archaic law, never used. Increasingly we are out of step with other advanced nations and our laws are not compatible with the need to maintain Singapore’s position as a global city and financial centre, and an attractive place to live and work. Recently we saw a case where a gay father was unable to adopt his own child and more of these clashes are bound to follow.

There are inevitably religious objections to repealing 377A but we maintain harmony and freedom of religious expression by being a secular society. Even the Pope recently admitted that it is unfair to discriminate against people who are homosexual and that they are all God’s children. We have a plethora of other laws to cover crimes such as rape, gross indecency, offending of modesty and so forth though unfortunately not rape in marriage.

Tommy Koh suggests a class action suit and unlike my IMF case where it was ruled I had no standing because I had not suffered any special damage, Singapore’s LGBTQ community will have standing.

I hope our judges will step up and quietly strike it down or that Parliament will act before such a class action suit embarrasses us on the world stage.

I would also like to see us Singaporeans not only upholding the spirit of the pledge that we recited by rote every day while we were in school but working towards a more tolerant and caring society in every sense.

 

 

 

Kenneth Jeyaretnam
Secretary General