Singapore’s highest court on Monday upheld a lower court’s decision to dismiss three challenges to a law that criminalizes sexual relations between men.
While delivering the judgment, given by a bench of five judges, Chief Justice Sundaresh Menon of the Singapore Court of Appeal said that the appeals are not about “whether (Section) 377A (of the penal code) should be retained or repealed, that being a matter beyond our remit.”
“Nor are they about the moral worth of homosexual individuals,” said Menon. “In the words of our prime minister, Mr. Lee Hsien Loong, homosexual individuals are ‘part of our society’ and ‘our kith and kin.’”
The appeal court went ahead and said the appeals are also “not about the fundamental nature of sexual orientation, whether immutable or not, which is an extra-legal question well beyond the purview of the courts.”
The court also suggested that political resolution of the issue is more appropriate than litigating it. The chief justice said that the advantage of the political process is its ability to accommodate divergent interests and opinions, while litigation is “not a consultative or participatory process.”
“This is so for good reason because litigation is a zero-sum, adversarial process with win-lose outcomes,” said Menon. “The political process, in contrast, seeks to mediate — it strives for compromises and consensus in which no one side has to lose all.”
The chief justice also said that it is “unnecessary” for the court to address a constitutional issue.
“They do not face any real and credible threat of prosecution under 377A at this time,” said Menon while delivering the judgment. “Therefore, (they) do not have the standing to pursue their constitutional challenges to that provision.”
“We, as organizations advocating for LGBTQ+ equality in Singapore, are disappointed with the Court of Appeal’s landmark ruling on Section 377A, which comes as a setback for all who were hoping for a resounding conclusion to this decades-long fight for equality,” said Ready4Repeal, a Singapore-based LGBTQ rights group, in a press release. “Despite recognizing the current situation as deeply unsatisfactory for the LGBTQ+ community, the Court of Appeal has still decided to retain the law, albeit with legal assurances on its unenforceability.”
Last year, three men, DJ Johnson Ong Ming, retired general practitioner Roy Tan Seng Kee, and Bryan Choong Chee Hoong, the former executive director of Oogachaga, an LGBTQ non-profit organization, decided to appeal against a Supreme Court’s decision to dismiss their cases against Section 377A.
“While this is a small step in the right direction, this simply does not go far enough to provide real protection to the LGBTQ+ community, who continue to be impacted by the cascading effects of Section 377A,” said Ready4Repeal. “The judges themselves acknowledged that even with the assurance of unenforceability, homosexual men will still be left open to police investigations as if a crime had been committed.”
Ready4Repeal started a petition in 2018 to pressurize the Singaporean government on repealing the colonial-era law. The petition has received 51,047 online signatures.
Section 377A is a highly debated law in Singapore that prohibits sexual relationships between two men. According to the law, any man in public or private who commits an act of gross indecency with another male shall be punished with to years in prison.
Last year, Home Minister Affairs K Shanmugam said that everyone in Singapore will be protected regardless of community and social, religious, or sexual beliefs. He also said that the government’s position is clear. He also said that amendments to the Maintenance of Religious Harmony Act make it an offense to urge violence on the grounds of religion or religious belief against any person or group.
Finance Minister Lawrence Wong last year reiterated that different sections of the society have valid concerns, and it needs to be addressed.
“Tribalism is inherently exclusionary, and it’s based on mutual hate: ‘us’ versus ‘them,’ ‘friend’ vs ‘foe,’” said Wong. “Once this sort of tribal identity takes root, it becomes difficult to achieve any compromise. Because when we anchor our politics on identity, any compromise seems like dishonor.”
Ankush Kumar (Mohit) is a freelance reporter, who has covered many stories for Washington Blade and Los Angeles Blade from Iran, India, and Singapore. Recently covered story for The Daily Beast. He can be reached at [email protected].