IREGION NA where governments often ignore or distort their own laws, Singapore stands out for its scrupulous compliance. This is why a recent judgment of its high court has raised eyebrows. On February 28, the Court of Appeal rejected a complaint filed by three gay rights activists against a colonial-era law that criminalizes sex between men. The bill will stay on the books, but the court actually told the government it could go on pretending it didn’t exist.
Section 377A of the Penal Code, which punishes acts of “gross indecency” between men with up to two years in prison, is a “lightning rod of polarization”, as the judges put it. They did their best not to be electrocuted. The court sidestepped the issue of the law’s constitutionality by arguing that the judges should consider the government’s position. When parliament debated 377A in 2007, Lee Hsien Loong, the prime minister, said it would stay but not be “proactively enforced”.
Mr. Lee argued that it was necessary to strike a balance between accepting gay people and respecting the “traditional” mores of society. The court said this “political compromise” took on legal force in 2018 when the attorney general said it was not in the public interest to prosecute consenting men who engage in sex acts in private. The law cannot violate the plaintiffs’ constitutional rights, the court held, if authorities do not enforce it.
“It’s really a ‘live and let live’ approach,” says Eugene Tan, a law professor at Singapore Management University. Still, it hasn’t satisfied anyone. Singaporeans, this is actually “a partial but significant victory” for them, one of the plaintiffs said, as the court gave legal weight to the Attorney General’s position.
This will displease many conservatives in Singapore. But gay activists are also unhappy. As the court recognized, there is nothing stopping the government from deciding to start enforcing the law again. The legislation should “clarify how citizens conduct their lives”, says Remy Choo Zheng Xi, a lawyer for one of the plaintiffs. The judgment rather muddyed the waters. Keeping the law on the books, he says, is “a mockery of what the rule of law is supposed to be”.
This article appeared in the Asia section of the print edition under the headline “Crime Not Punishment”