Just a narrow victory

The Singapore Government’s decision to repeal Section 377 is an important step toward the global decriminalisation of LGBTQ lives. Arvind Narrain writes about the likely implications of this decision

Just a few weeks away from India marking the fourth anniversary of the Supreme Court judgement in Navtej Singh Johar vs Union of India on September 6, 2022, Singapore Prime Minister Lee Hsien Loong announced that Singapore would repeal Section 377A of its Penal Code which criminalised acts of ‘gross indecency between men’. The announcement by the Singapore government follows the fall of anti-sodomy laws in Botswana (2019), Gabon (2020) and Angola in 2021 — all post-decriminalisation in India.

However, similar challenges in Kenya and Singapore were rebuffed by the courts. In making the announcement recently, Singapore signalled its intention to rid itself of the colonial legacy of anti-sodomy laws. In his televised address, the Prime Minister stated that Section 377A would be repealed, as “it is the right thing to do”. He went on to say that “private sexual behaviour between consenting adults does not raise any law and order issue. There is no justification to prosecute people for it nor to make it a crime and that most Singaporeans accept that sexual orientation is a private and personal matter.”

The fifteen-year-old battle in Singapore against its version of Section 377A received a renewed impetus with the decision in Navtej Singh Johar in 2018. A number of challenges were filed, only for the courts to uphold the law’s constitutionality. In the latest challenge filed before the Singapore Appeals Court by gay rights activist Roy Tan, the Court referenced the decision in Navtej Singh Johar, only to dismiss it saying that, “one cannot look to developments abroad without first appreciating the exceptional situation in Singapore.” The ‘exceptional’ situation in Singapore was that there was a prosecutorial policy in place not to enforce Section 377. On this basis, the provision’s constitutionality was again upheld in February 2022. This decision was subject to heavy criticism as the prosecutorial policy remains within the realm of executive discretion. Rights however cannot be founded on such flimsy foundations as executive policy can change with the change in government. In the light of this background of the repeated failures by the courts to strike down Section 377, the decision by the Singapore Prime Minister is to be welcomed. However, Singaporean activists pointed to it being a small step forward with there being a long way still to go. Activists were also concerned by the Prime Minister simultaneously promising to amend the constitution to state that marriage would be between a man and a woman. A coalition of 23 Singaporean non-governmental organisations, said that: “Any move by the government to introduce further legislation or constitutional amendments that signal LGBTQ+ people as unequal citizens is disappointing.” Another Singaporean activist, Kirsten Han was more caustic noting that what the government was doing was to ‘cut off a legitimate avenue of activism and advocacy (i.e. going to the courts)’ by amending the Constitution to prevent any challenge to heterosexual marriage. This mixed messaging by the Government of Singapore seems to recognise the impact of decriminalisation.

Decriminalisation decisions in any part of the world when based on the constitutional principles of equality and liberty inevitably lead to further assertions of the LGBTQI community to what the South African constitutional court called ‘full moral citizenship’. In the United States, the decriminalisation decision in 2003 in Lawrence vs Texas lead to the recognition of gay marriage in Obergefell vs Hodges in 2015. In South Africa, too decriminalisation in 1998 was followed by the recognition of same-sex marriage in 2006. In India as well, the decriminalisation in 2018 has paved the way for petitions before the court asserting marriage equality. On August 16, 2022, a bench headed by J Chandrachud, in a case involving the right of a woman to maternity benefits held that ‘Familial relationships may take the form of domestic, unmarried partnerships or queer relationships… Such atypical manifestations of the family unit are equally deserving not only of protection under law but also of the benefits available under social welfare legislation.’

It is precisely developments such as this which are a direct consequence of a strong decriminalisation decision founded on constitutional principles from which the Singapore government seeks to ring-fence itself from.

Decriminalisation has the potential to not just decriminalise but also become a charter of equality which can open the door to challenge other forms of discrimination on grounds of sexual orientation or gender identity. It is this promise of the law which is sought to be stilled by converting decriminalisation to a narrow, standalone victory with no consequences for the future of the LGBTQI movement. It is now up to the brave LGBTQI activists in Singapore to continue their struggle and neutralise the government’s intent to deny ‘full moral citizenship’ to LGBTQI Singaporeans.

Decriminalisation should not be allowed to become the pretext to constitutionalise the second-class citizenship of LGBTQI Singaporeans.

(The author is a lawyer & writer based in Bengaluru. He is the co-editor of Law like love: Queer perspectives on law.)