The minister noted that Section 377A was discussed at a law forum in September which he participated in. The legal scholars, practitioners and experts in attendance “were pretty unanimous on the legal risks” surrounding the law, said Mr Shanmugam.
“As the Prime Minister said during the National Day Rally, the AG (Attorney-General) and I have advised the Government that in a future court challenge, there is a significant risk of Section 377A being struck down, ” he added.
“When Parliament does not act, when it should act, then we may leave the courts with no choice. If fundamental constitutional rights have been violated and yet Parliament abdicates its duties, then the courts may have no choice but to act.”
Mr Shanmugam warned against assuming that the courts would never strike down Section 377A just because the Government chooses to retain it.
He said that in Singapore, so far, the courts have recognised that Parliament, as the elected branch of Government, is better suited to resolve such difficult societal issues.
“In Parliament, there can be consultation, discussion, debate. Considerations going well beyond the law can be taken into account, whereas courts can only consider the legal issues,” said Mr Shanmugam.
“Consensus can be forged, in Parliament, to bridge divergent viewpoints. Open-ended resolutions are possible, instead of binary, win-lose outcomes.”
The minister said court processes were adversarial by nature with “no middle ground, no balancing of competing interests”.
“The courts cannot consider competing social norms and social consequences of their decisions,” he added.
A situation where the courts strike down Section 377A “could lead to a whole series of consequences which would be very damaging to our Singaporean society”, said Mr Shanmugam.
For instance, laws defining marriage as between a man and a woman, and policies based on that, could be at risk in future. He said: “It could be argued that equal protection means we cannot discriminate against same-sex couples, in the same way that Section 377A can be said to discriminate against gay persons.”
“Going further, if the definition of marriage is changed through a court challenge, there can be a cascading effect,” he added.
“It could impact questions relating to same-sex marriage, media content, housing policies, various other policies … Such changes through the courts are not in Singapore’s interests.”
Mr Shanmugam reiterated that it would have been simpler to leave it to the courts and “pretend that these issues do not exist”.
“If we approached this purely as politicians, concerned only with votes and not making anyone unhappy, or making as few people unhappy as possible, then that route (would) have been easier,” he said.
“But this Government will not take that approach. As elected representatives of the people, we cannot do that,” he added.
“If we see a risk that a law may be found unconstitutional, it is our duty to act and deal with it in Parliament.
“Both because it is our duty to do so and because taking the easy way out would have serious negative consequences for our society. It will be very bad for Singapore.”