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Colonial-era laws in a post-colonial Singapore: A look at Section 377A of the Penal Code

Updated: Dec 4, 2020

Written By: Joshua Pua

Beginning as a colony of the British Empire, Singapore has grown to become a sovereign city-state. Post-colonial Singapore has joined the ranks of first world countries worldwide, being the third on the global competitiveness index from 2017-2018[1] based on GDP.

Despite the substantive economic growth experienced by the country, Singapore seems to have fallen into a glut when it comes to modernizing its laws; specifically, section 377A of the Singapore Penal Code (PC).[2] Section 377A states as follows:

377A. Any male person who, in public or in private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to 2 years.”

It should be noted that the Singapore PC was essentially a local re-enactment of the Indian Penal Code of the same period.[3] Over the years, there have been many amendments made to the PC to keep it “up to date, and make it more effective in maintaining a safe and secure society in today’s context”.[4] However, s377A was never amended.

S377A presents numerous legal issues, with many of them being constitutional in nature such as discrimination and an interference with the right to life and personal liberty. In short, s377a is ultra vires.

There relevant Articles of the Constitution of the Republic of Singapore are Articles 9 and 12 and are extracted as follows:

9. –(1) No person shall be deprived of his life or personal liberty save in accordance with law.”

12. –(1) All persons are equal before the law and entitled to the equal protection of the law.”

In a recent judgment, the High Court of Singapore dismissed three challenges against the legality of s377A,[5] and touched upon the compliance of s377A with Articles 9 and 12 of the Constitution specifically.

See Kee Oon J stated, with reference to Article 12 of the Constitution, that there exist other areas of law in Singapore where distinctions are drawn between men and women, i.e. women are exempt from caning.[6] Further, he explained that Parliament had decided to retain s377A despite the numerous Parliamentary debates held on the subject.

Despite the existence of s377A, the Singapore Government approached towards the enforcement of s377A is rather lax – the police will not proactively conduct patrols or enforcement raids for offenders under this section.[7]

The Singapore Parliament’s decision to retain s377A is troubling, not only does s377A provide constitutional challenges, but it also shows a startling stagnation in societal mindsets. It shows that the top brass of Singapore does not accept male-male relationships, even if the 'gross indecency’ is committed in the privacy of the home.

The stagnation is relevant not only in the area of criminal law, which is what the PC concerns, but further in the area of family law. In Singapore, only traditional marriages are allowed. There is no provision for same-sex couples, as there is in the United Kingdom under the Marriage (Same Sex Couples) Act 2003. Nor are same-sex couples allowed to legally adopt children.

Further, the decision to retain s377A is mindboggling. Why should the government retain this provision of the PC given the fact that the official stance of the Singapore Government is not to actively enforce it? See Kee Oon J stated in his judgment that it would be fair to conclude that there was no significant change in the degree of societal disapproval towards male homosexual conduct, as opposed to female homosexual conduct, as well as the impact the former was understood to have on public morality.[8]

Personally, I find the above to be rather misleading. Pink Dot Sg is a non-profit organization in Singapore which aims to support and promote awareness of the LGBTQ community in Singapore.[9] For the past 11 years,[10] Pink Dot Sg has organized an annual rally in which countless Singaporeans, including the brother of the Prime Minister, have turned up to show their support for the LGBTQ community.[11] As such, stating that there has been no change in the degree of societal disapproval towards homosexual conduct over the years in Singapore is a far-reaching and unsupported statement.

Singapore, as a successful country, should amend s377A. The country should take a look at its archaic and discriminative laws and amend them in light of the new societal mindsets.

Disclaimer: The opinions expressed in this post are those of the authors, and do not reflect the views or opinions of the Durham Asian Law Journal.

[1] [2] Chapter 224, 2008 Rev Ed; [3] [4] Ministry of Home Affairs, Consultation Paper on the Proposed Penal Code Amendments (8 November 2006), para. 3. [5] [6] [2020] SGHC 63, [172] [7] S 377A Hansard, col 2401 [8] (n 6), [177] [9] [10] [11]

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