Penal Code section 377A

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In 2007, the government reviewed the Penal Code and introduced the Penal Code (Amendment) Bill which proposed significant changes to the law.¹ The topic that caught much attention involved section 377 which prohibited oral and anal sex between consenting adults. The Bill had proposed the repeal of section 377, but opted to keep section 377A which prohibited similar acts between homosexuals. This proposal was hotly debated between gay supporters, who claimed the clause was discriminatory, and their opponents, who supported the retention of section 377A.²  

Background
In November 2003, a police coast guard officer, Annis Abdullah, was convicted under Section 377 of the Penal Code for having oral sex with a teenage girl, although the act was consensual.³ The conviction generated much debate in Singapore about whether oral sex should continue to be considered an offence in modern times.⁴ The law in contention was the Penal Code of the Straits Settlement, which was enacted in 1871 during colonial administration. It mirrored the Indian Penal Code and was the primary criminal statute in Singapore.⁵  

The 2003 case caused the Ministry of Home Affairs to begin a comprehensive review of the Penal Code. In September 2007, the ministry submitted to Parliament the Penal Code (Amendment) Bill, which proposed 77 amended provisions and four repealed provisions.⁶ 

Description
Section 377 of the Penal Code had stated that “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animals, shall be punished with imprisonment for life, or with imprisonment for a term which may extend to 10 years, and shall also be liable to fine”.⁷ This clause was repealed in the Penal Code (Amendment) Act in 2007 and a new section 377, which criminalises sex with a human corpse, was instituted in its place.⁸

Section 377A of the Penal Code had stated that “any male person who, in public or 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 two years.” This clause was retained in the same 2007 Penal Code review.⁹ Whether the act was performed privately or publicly was not relevant in the eyes of the law.¹⁰

In the second reading in Parliament to amend the Penal Code on 22 October 2007, the senior minister of state for Law and Home Affairs, Associate Professor Ho Peng Kee, laid down the justifications for the retention of Section 377A, stating that Singapore was generally still a conservative society and the majority of its people still found homosexual behaviour unacceptable. Hence, the government had chosen to allow section 377A to remain status quo to maintain the country’s social cohesion and let the situation evolve naturally.¹¹

The ministry’s proposal to keep the clause sparked strong comments and protests from gay supporters and attracted wide media coverage. Prior to the second reading of the Bill in Parliament, an open letter was sent to the prime minister and an online petition site, Repeal377a.com, was set up. The site collected 2,341 signatories to appeal against the retention.¹² 

The petition was presented to Parliament by nominated member of parliament (NMP) Siew Kum Hong ahead of Parliament’s sitting on 22 October 2007.¹³ The petition argued that the clause discriminated against homosexuals and bisexuals and was an “unconstitutional derogation” of the Constitution, where all persons were equal before the law and entitled to equal protection of the law [Article 12(1)].¹⁴ In his speech to Parliament, Siew argued that a private consensual act between adults should not be treated as a criminal act as it did not harm others, regardless of one’s view on homosexuality.¹⁵ However, another member of parliament, Indranee Rajah, rebutted him on the interpretation of Article 12(1), stating that it was taken out of context.¹⁶ 

A group calling itself “the Majority” also set up a website to collect signatures calling for the government to retain Section 377A. The group argued that repealing Section 377A would force homosexuality on “a conservative population that is not ready for homosexuality”, and could lead to calls for same-sex marriages and the trend of adoption by same-sex couples.¹⁷ 

Parliament eventually concluded that legislation had to reflect both societal norms and the views of the majority, and opted to keep section 377A. Speaking on the issue, Prime Minister Lee Hsien Loong stressed that the social norms in Singapore called for heterosexual and stable family units, but assured that the government acknowledged homosexuals’ contributions in society and would not actively enforce section 377A. He highlighted that people on both sides held strong fundamental views on the matter and discussions would not bring the views of the two groups any closer, and hence it was better for the issue to remain as status quo.¹⁸

Aftermath
An NMP, Thio Li-Ann, reported that she received hate mails for her stand on homosexual issues. One of these was an email that was “full of vile and obscene invective”, which prompted her to make a police report.¹⁹ The author of the email was poet and playwright Alfian Sa’at, who admitted that he wrote the mail in a fit of anger after thinking that Thio had made a police report that had led to the cancellation of a National Day picnic organised by gay activists. Thio decided not to sue Alfian after he apologised to her.²⁰ Shortly after the incident, she made a second police report, after receiving an anonymous letter threatening her and her family with bodily harm.²¹  

Siew was also targeted by some netizens who insinuated that he was promoting a homosexual lifestyle, taking sides when he should have remained neutral as an NMP.²²  

Timeline
9 Nov 2006: Ministry of Home Affairs releases public consultation paper on amendments to Penal Code.²³
17 Sep 2007: First reading of the Penal Code (Amendment) Bill by Deputy Prime Minister and Minister for Home Affairs, Wong Kan Seng.²⁴
22 & 23 Oct 2007: Second and third reading of the Penal Code (Amendment) Bill. Bill is passed without further amendments.²⁵ 



Author
Lim Puay Ling



References
1. Penal Code (Amendment) Bill 2007, Act 38/2007, Singapore Statutes Online.
2. Selina Lum, “Law on ‘Unnatural’ Sex Acts to Be Repealed,” Straits Times, 9 November 2006, 3 (From NewspaperSG)
3. “Mistake in Court: Girl Was a Minor: Policeman Jailed for Oral Sex,” Straits Times, 15 November 2003, 1; “Ex-Cop Appeals against Jail Term for Oral Sex,” Straits Times, 19 November 2003, 8. (From NewspaperSG)
4. “Ex-Cop Appeals.”
5. Chan Wing Cheong and Andrew Phang Boon Leong, “The Development of Criminal Law and Criminal Justice,” in Essays in Singapore Legal History, ed. Kevin Y. L. Tan (Singapore: Marshall Cavendish Academic & the Singapore Academy of Law, 2005), 247–8. (Call no. RSING 349.5957 ESS)
6. Penal Code (Amendment) Bill 2007, Singapore Statutes Online; Li Xueying, “On Homosexuality, Religious Offences and Marital Rape,” Straits Times, 9 November 2007, 25. (From NewspaperSG)
7. Penal Code, Cap 224, Statutes of the Republic of Singapore, rev. ed. 1985.
8. Penal Code, Statutes of the Republic of Singapore.
9. Penal Code, Statutes of the Republic of Singapore.
10. Andy Ho, “Time to Put Straight Some Legal Quirks?” Straits Times, 27 October 2006, 29. (From NewspaperSG)
11. Loh Chee Kong, “A Code to Fit the Crime,” Today, 23 October 2007, 1. (From NewspaperSG)
12. Ansley Ng, “A Rare Petititon and a Spirited Debate,” Today, 23 October 2007, 1; Ansley Ng, “Keep377A.om vs Repeal377A.com,” Today, 19 October 2007, 3. (From NewspaperSG)
13. Chua Hian How, “NMP to Submit Parliamentary Petititon to Repeal Gay Sex Law,” Straits Times, 12 October 2007, 47. (From NewspaperSG)
14. Parliament of Singapore, Petition, vol. 83 of Official Reports - Parliamentary Debates (Hansard), 22 October 2007, col. 2121.
15. Ng, “Rare Petititon and a Spirited Debate.” 
16. Parliament of Singapore, Petition, col. 2242.
17. Ng, “Keep377A.om vs Repeal377A.com.” 
18. Lee Hsien Loong, “Why We Should Leave Section 377A Alone: PM,” Straits Times, 24 August 2007, 30. (From NewspaperSG)
19. Chong Chee Kin, “Police Question Poet over E-mail to NMP,” Straits Times, 30 October 2007, 3. (From NewspaperSG)
20. Li Xue Ying, “Poet Sends ‘Civil’ E-mail Apology So NMP Drops Plan to Sue Him,” Straits Times, 1 November 2007, 34. (From NewspaperSG)
21. Li Xue Ying, “NMP Thio Files 2nd Police Report after Getting Threat,” Straits Times, 8 November 2007, 53. (From NewspaperSG)
22. Chia Sue-Ann, “NMP Candidates Attacked Online,” Straits Times, 15 May 2009, 41. (From NewspaperSG)
23. “Broad Changes to Penal Code Proposed,” New Paper, 9 November 2006, 18. (From NewspaperSG)
24. Parliament of Singapore, Penal Code (Amendment) Bill, vol. 83 of Parliamentary Debates: Official Report, 17 September 2007, col. 1522.
25. Parliament of Singapore, Penal Code (Amendment) Bill, vol. 83 of Parliamentary Debates: Official Report, 22 October 2007, col. 2175; Parliament of Singapore, Penal Code (Amendment) Bill, vol. 83 of Parliamentary Debates: Official Report, 23 October 2007, col. 2445.



The information in this article is valid as of 2010 and correct as far as we are able to ascertain from our sources. It is not intended to be an exhaustive or complete history of the subject. Please contact the Library for further reading materials on the topic.

Subject
Politics and Government
Criminal law--Singapore