Section 377A: Constitution will be amended to protect Parliament's right to define marriage, says Home Affairs and Law Minister K. Shanmugam
Government spells out plans to safeguard family as it repeals Section 377A
By Tham Yuen-C, Senior Political Correspondent, The Straits Times, 23 Aug 2022
As it repeals Section 377A, the Government will also make it clear in the Constitution that it is Parliament's prerogative to define marriage as being between a man and a woman and to make other pro-family policies on that basis, Home Affairs and Law Minister K. Shanmugam said on Monday (Aug 22).
This is different from enshrining the definition of marriage in the highest law of the land, which some religious groups and conservative Singaporeans have pushed for. But Mr Shanmugam said the move will stave off legal challenges on the definition of marriage.
His comments, in an interview with The Straits Times and Lianhe Zaobao, come a day after Prime Minister Lee Hsien Loong announced at the National Day Rally that Section 377A of the Penal Code, which criminalises sex between men, would be repealed.
In tandem, the Government would move to safeguard marriage, PM Lee said. As the law stands, he added, marriage as it is now defined can be challenged on constitutional grounds in the courts, just like Section 377A has been challenged.
Religious and conservative groups, some of whom see the colonial-era law as a moral marker, have welcomed this guarantee, and suggested that marriage will be defined in the Constitution.
To this, Mr Shanmugam said: "I want to be clear because I think there's some confusion. The definition of marriage is not going to be in the Constitution. That's not the intention."
Instead, the Government plans to explicitly state in the Constitution that Parliament can define the institution of marriage in the way it has been defined in the Women's Charter, and can make other pro-family policies on the basis of that definition. This will make it difficult to challenge the definition of marriage and the policies that rely on it, he added.
In a separate interview with CNA, Deputy Prime Minister Lawrence Wong said the Government was fully committed to uphold the current definition of marriage.
"This will not change... under the watch of the current Prime Minister, and it will not happen under my watch - if the PAP were to win the next General Election.
"Likewise, we will not change the laws and policies that rely on this definition of marriage, and that relates to public housing, adoption, what we teach our children in schools, advertising standards, film classification, and so on. Basically, the overall tone of society will not change - our laws and policies will remain the same," he said.
Meanwhile, the Ministry of Education said its policies on the issue would not change, and the Ministry of Communications and Information also said its approach to regulating media content would remain.
In the interview, Mr Shanmugam said that if the proposed amendments to the Constitution are not made, the prevailing definition of marriage risks being challenged on the basis of being discriminatory under Article 12 of the Constitution, which guarantees equal protection under the law.
"It can be challenged, it can be asked...why should marriage only be between a man and a woman? Why shouldn't it be possible for two men, or two women, to be married?, he said.
"Such arguments about marriage have been made elsewhere successfully."
If this happens, "everything could go in one sweep", including many of the other laws and policies built on the current definition of marriage, such as those on public housing, education and media policies, he added.
The danger of this happening became clear when the Court of Appeal said in a February judgment that Section 377A could be discriminatory under Article 12 of the Constitution which guarantees equal protection under the law.
Mr Shanmugam, who with Attorney-General Lucien Wong advised the Cabinet on the issue, said: "If Parliament doesn't act, either because of fear or because of a lack of will, and therefore doesn't deal with the law which may be in breach of the Constitution, then...(it) is not doing its job. Then, you make it difficult for the Courts to exercise restraint."
Keeping quiet and letting the Courts deal with it would have been more politically expedient, he noted, since emotions run high on both sides.
But if Section 377A or even the definition of marriage were struck down like that, it would risk damaging the fundamental fabric of society, he added. Such political issues should not be decided by the judiciary, but by the legislature.
In fact, the intended amendment to the Constitution leaves open the possibility for Parliament to change the definition of marriage through a simple majority.
While constitutional amendments require a two-thirds majority in Parliament to pass, changes to other pieces of legislation, including the Penal Code which Section 377A is a part of and the Women's Charter, requires a simple majority.
Mr Shanmugam said: "This government's position is very clear and you've also heard what Deputy Prime Minister Lawrence Wong has said.
"We are committed to strengthening the current structure of marriage, strengthening the family structure and the policies that surround that structure of family. We think that's what is fundamental for Singapore. And in fact, we are amending the Constitution to strengthen their position."
He added that any political party or group that wants to push for same-sex marriage will be able to do so. "They will have to put that in their manifesto, fight elections, get a majority and then change the definition of marriage," he said.
Asked when the repeal of Section 377A would happen, he said "the changes itself, in terms of legal drafting and so on, will not take much time".
He added: "I am not in a position to give you an answer on that right now. But I do not expect that it will be very long."
* Singapore Parliament debates repealing S377A
PAP will not lift whip for Parliament debate on Section 377A repeal: Lawrence Wong
By Goh Yan Han and Hariz Baharudin, The Straits Times, 22 Aug 2022
The People's Action Party will not be lifting the whip when Parliament votes to repeal a law that criminalises sex between men as the matter is one of public policy, said Deputy Prime Minister Lawrence Wong on Monday (Aug 22).
This means that its MPs will have to vote according to the party's position.
Referring to Section 377A of the Penal Code, DPM Wong said: "In our minds, this is a matter of public policy because we are repealing a law which the courts have already said is not going to be enforced. At the same time, even as we were to repeal this law, we are making sure that we are putting in place measures to make sure that it will not trigger further societal changes.
"From that point of view, this is a matter of public policy and we do not intend to lift the whip when this matter is debated in Parliament later on."
Prime Minister Lee Hsien Loong had announced during the National Day Rally that the Government will repeal Section 377A, but also amend the Constitution to protect the existing definition of marriage - between one man and one woman - from being challenged in the courts.
In an interview with local news broadcaster CNA on Monday, Mr Wong, who is also Finance Minister, said the Government's plans amount to a "very limited, careful and controlled repeal of Section 377A".
Some groups, including the Alliance of Pentecostal and Charismatic Churches of Singapore, had called for the party whip to be lifted so that MPs can vote freely according to their conscience.
The role of a party whip is to ensure good communication in the party ranks, contribute to the smooth running of its parliamentary machinery and serve as disciplinarian. Dr Janil Puthucheary, Senior Minister of State for Health and Communications and Information, is the current government Whip.
The Whip ensures the party's MPs vote according to the party's position. The PAP has lifted the whip several times in the past, including for the Nominated MP scheme and the Maintenance of Parents (Amendment) Bill.
The Workers' Party declined to comment when asked if it would lift its party whip for the debate.
Why marriage won't be entrenched in the Constitution
Minister for Culture, Community and Youth Edwin Tong, who spoke to CNA at the same interview with Mr Wong, said the Government will propose an amendment to safeguard the existing definition of marriage from constitutional challenge.
This protection will also be extended to other laws and policies which depend on this current definition of marriage, such as laws on adoption, public housing, school curriculum and advertising, he added.
Asked why the Government will not entrench the definition of marriage in the Constitution, as some churches had called for, Mr Tong said the main reason is it "may not be appropriate" to do so.
"This entrenchment would elevate marriage to the same level as fundamental rights in our Constitution, rights such as life and personal liberty," he noted. "And this would fundamentally change the whole complexion and the schema of the Constitution."
Although the move might satisfy some, it may also rile up other segments, the minister warned.
"And if we did this, if we hard coded marriage in this way, in the most fundamental legal document in Singapore, we may end up prompting those who disagree with this position to campaign to mobilise, agitate, perhaps even with greater intensity," he added.
"And we do not think this would be good for society."
'It will not happen under my watch'
Mr Wong said the Government is fully committed to upholding its family-centred policies and marriage as defined between one man and one woman.
Likewise, it will not change the laws and policies that rely on this definition of marriage, and the overall tone of society will not change, he added.
"PM himself said this very clearly in his speech - the PAP Government will not change the current definition of marriage," said Mr Wong.
"So this will not change, this will not happen under the watch of the current Prime Minister, and it will not happen under my watch - if the PAP were to win the next general election."
On whether there is a political price to pay in repealing Section 377A, Mr Wong replied that the Government has to focus on doing what is right.
It has sought to achieve a new balance that reflects societal attitudes while preserving unity, he said.
"We believe this package of moves is the right balance to strike. I know not everyone will be happy with this proposal. Some will want us to move further, others will say that we are going too far," he added.
"But in the end, the Government has to make a judgment and do what we believe is right for the wider good of Singapore and Singaporeans."
When asked why not hold a referendum here on the repeal of the anti-gay sex law, Mr Wong said that constitutionally, such a move is required only when sovereignty is at stake.
Historically, Singapore has had only one referendum on the merger of Malaysia, and the Deputy Prime Minister said the bar is set very high.
Repealing Section 377A law is "very far" from reaching this bar, as Singapore is repealing a law which the Court of Appeal has already said the country cannot enforce, Mr Wong noted. In February this year, the apex court ruled that Section 377A was unenforceable in its entirety.
"We believe this certainly does not meet the bar for a referendum," he said.
Referendums could, in fact, deepen divisions in societies, Mr Wong cautioned. He brought up how such moves during Brexit and the Scottish independence in Britain did not resolve the issues then.
"For those who think that having a referendum will provide resolution and make things better, that may not necessarily happen. In fact, it may well have the opposite effect."
Section 377A: Ministries looking at ways to deal with cancel culture, work pressure, says Shanmugam
By Tham Yuen-C, Senior Political Correspondent, The Straits Times, 22 Aug 2022
People should be free to express themselves without fear of being attacked, whether they are for or against the repeal of a law criminalising gay sex, said Home Affairs and Law Minister K. Shanmugam on Monday (Aug 22). The Government is looking at ways to ensure that no one will be cancelled for stating their views, he added.
It is also studying how it can protect employees and students from discrimination due to their beliefs. They should not feel pressured to signal any affiliation in workplaces and schools as these are secular spaces, Mr Shanmugam said.
He was speaking about how the Government would address concerns that the repeal of Section 377A could change the tone of society and spark intolerance towards differing views.
"We need to take the concerns seriously," he added.
For instance, many had said during consultations on reviewing Section 377A of the Penal Code that they worry their freedom to preach and express their views will be curtailed by groups that will "cancel them, harass them, attack them".
Such cancel campaigns, which involve marshalling people to ostracise those who are deemed to have said or done the wrong thing, can cause much harm, he said.
The Ministry of Law is looking at measures to deal with this, he said.
"We cannot sit by and do nothing," he added. "People ought to be free to express their views without fearing being attacked - on both sides... We have to look at the right boundaries between hate speech and free speech, in this context. We should not allow a culture where people of religion are ostracised, attacked, for espousing their views or their disagreements with LGBT (lesbian, gay, bisexual and transgender) viewpoints. And vice versa."
The minister said freedom of religion is a cornerstone, and people should be free to practise their faith or remain non-religious.
He warned that members of any religious group who attack those from a non-religious group, such as an LGBT group, on the basis of their beliefs, or vice versa, would fall afoul of the Maintenance of Religious Harmony Act.
He noted that some worry about pressure to accept LGBT ideology in their workplace, such as employees at foreign multinationals who might feel compelled to put up a Pride flag to signal support for the LGBT community.
"These are matters of conscience. There should be no compulsion or pressure, direct or indirect," said Mr Shanmugam.
"Workplaces should be part of the secular space shared by all Singaporeans. They should not be places where people are compelled or pressured to participate in, or support, non-business related causes. Employees should not be discriminated against at work just because they hold traditional family values or pro-LGBT values."
He said the Manpower Ministry is looking at these, but the law may not be the best solution.
"It may be that we have to advise employers, particularly foreign employers, to be more careful and sensitive in Singapore... This is a country where many people are religious, and that should be respected," he added.
Repealing Section 377A; strengthening marriage
On Monday, The Straits Times interviewed Home Affairs and Law Minister K. Shanmugam on the Government’s decision to repeal Section 377A of the Penal Code which criminalises sex between men. Here is an edited excerpt of the interview.
The Straits Times, 24 Aug 2022
Q: Could you take us through the thought process of why the Government has decided to repeal Section 377A now, in the context of the latest judgment?
Shanmugam: You heard the Prime Minister. I, the Attorney-General, both advised him that there is a significant risk of S377A being struck down in a future challenge, on the basis that it breaches the Equal Protection provision in the Constitution. The Attorney-General and I came to this view, we talked to other lawyers as well. We carefully studied the judgment, and, in this case, the Court of Appeal ruled on many points, but it expressly refrained from ruling on whether S377A breaches the Equal Protection provision in Article 12 of the Constitution.
Let me explain. There were several challenges to S377A based on the Constitution. For example, that it was in breach of Article 9, which protects life and personal liberty. The Court of Appeal dismissed it. It was argued that S377A was in breach of Article 14 which protects freedom of speech and expression. The Court of Appeal dismissed that argument.
But when it came to the challenge against S377A by reference to Article 12 - the Equal Protection clause - the Court of Appeal expressly said that they are not going to rule on whether S377A breaches Article 12, and they said that there were two ways in which Article 12 could be applied. Under one of the two ways, if you read the judgment, the Court of Appeal essentially said that S377A could be unconstitutional, it could be in breach of Article 12. The Court added that they did not have to decide on the right test now. They left it to "a suitable occasion in the future", which in my view means they can, and probably will, decide it in future. Subsequently, in other cases, the courts seem to have accepted the test which - if applied here - could mean S377A is likely to be held unconstitutional.
So, in summary, they dismissed the challenges on Articles 9 and 14, but left open the questions on Article 12, and signalled that S377A could potentially be unconstitutional, and they said they can deal with it in the future.
Now, our courts have over the decades exercised restraint in such questions, as they did in this latest judgment as well. They recognise what is in the sphere of Parliament, and what is in the sphere of the courts.
However, if Parliament doesn't act, then the legislature is not doing its job. Then, you make it difficult for the courts to exercise restraint.
Our system has worked well all these years, because all the three branches - Parliament, the Executive that is the Cabinet and the Civil Service, and the Judiciary, the courts - all three work within their respective boundaries, fulfil their respective roles, and work well, with mutual respect. If, however, Parliament doesn't deal with a law which is potentially unconstitutional, you may then leave the courts with no choice. They have to interpret, and, if a law is unconstitutional, they may well say so.
There are lawyers who believe that our courts will not take an activist approach, and aren't likely to strike down S377A. The point is this - it would be irresponsible for us as a government to assume that the courts won't strike down S377A, even if they thought it was not constitutional. Looking at the Court of Appeal's comments, and the state of the law as it is, we have to make a careful logical assessment. You can't proceed on these things on the basis of hope and wishful thinking. Our analysis led to the conclusion that there was a significant risk that S377A might be ruled unconstitutional in a future case. And the legal risk is not only to S377A. After that, the definition of marriage itself can be challenged.
Marriage in Singapore is now defined in the Women's Charter as between a man and a woman. It can be challenged, it can be asked - Article 12, Equal Protection, why should marriage only be between a man and a woman? Why shouldn't it be possible for two men, or two women, to be married? Someone could argue that marriage policies are in breach of Article 12. Such arguments about marriage have been made elsewhere successfully.
And it will not just be marriage. Many of our laws and policies built on the current definition of marriage - public housing, education, media, many others - all of these could be challenged. So, we decided the Government must take responsibility, and act now. These are issues that should be dealt with in Parliament by MPs, elected representatives, rather than in the courts, as the courts themselves recognised.
Then the next question is, if you think there is a significant legal risk, what do you do? Government had many different possibilities, courses of action.
Some have said enshrine S377A in the Constitution. Others have suggested other ways. And if you enshrine S377A, that would prevent a legal challenge. Or, do other things, such that a challenge to S377A will not matter. But is that the right thing to do?
We decided the right thing to do is the course that we have put forward. The Government has repeatedly said that what consenting adults do in the privacy of their bedroom is generally not a matter for criminal law. So, it would not be right to enshrine S377A in the Constitution. It will also not be right just to leave it be. The right thing to do is to decriminalise, stop making it an offence for gay men to have sex. It doesn't mean anyone has to approve it. It just means it is not criminal, and people can have their different views on this matter. And the right thing to do also is to protect the family structure.
Q: The Government has said in the past that it would only move on this law when society is ready. And yet, what you just described sounds like we're actually doing it now because there's a risk that the law can be struck down by a court in a future challenge. Can you tell us a bit more - why now and not later?
A: The more fundamental question was and is - what is the right thing to do? If you have been following the debates on both sides, very passionate viewpoints have been expressed. In this context, the easiest thing for the Government to do would have been to just leave it alone, do nothing.
And if we did nothing and we left it to the courts to strike out S377A, the Government would be able to just shrug its shoulders and say we didn't do it, the courts did it. It would have been the path of least resistance, the easier path. If you approach these issues simply and purely as a politician concerned about votes only, then you will take this course.
But if you ask yourselves, what is the right thing to do, regardless of political cost? Then, as PM said last night, our laws have to keep pace with social mores, society, changes. Gay people - they are our family, our colleagues, our friends. They deserve dignity, respect, and acceptance - as the rest of society does. And it would have been wrong to continue criminalising their sexuality, what they choose to do in private. Nobody deserves to be stigmatised because of their sexual orientation. So, repealing S377A, removing their pain, is the right thing to do.
At the same time, in our view, keeping quiet, passive, and letting the courts deal with it, carry with it the great risk of damaging the fundamental fabric of society, the structure of family. The current definition of marriage, why it should only be between a man and a woman, can be challenged. Our housing, education, social policies, many other policies, would be at risk. These are serious issues.
So, if the courts rule S377A to be unconstitutional, it would set a bad precedent of the judiciary intervening in what is really a political issue, which they recognise is a political issue, and the reason they have to intervene is that the Executive and the Parliament have failed to do our jobs, we've failed to do what we need to do. And then everything could go in one sweep.
The courts cannot do a balancing exercise. They just apply the law. They say what the law is. Parliament can do a careful balancing exercise on where to take society. That is the role of a responsible Parliament. And if Parliament doesn't discharge its duties, then the courts will apply the law, because they will be faced with it.
A responsible government therefore cannot stand by and be passive, and let this happen. If we believe in Singapore, and we believe what makes Singapore successful; if we believe that the family is important - and we do - then we must move to prevent legal challenges to the current family structure.
Some of the people who oppose the repeal of S377A don't appreciate this risk to the family. They don't realise that the Government has actually thought this through several steps and is moving strongly to protect the family structure in Singapore.
Q: Let's talk about political cost. You stressed that "it's the right thing to do". It's a contentious issue, S377A. You said the Government could have just let the courts deal with it, but you didn't. So, what is the political cost, what is the political hit there?
A: You see the tremendous amount of passion on both sides that this discussion has unleashed over the last several months. You see all the statements issued by religious groups, as well as non-religious groups, LGBT groups. Big arguments. We want to keep the social fabric intact, we want to keep social harmony, we want to achieve the right balance. However, if we just kept quiet, put on the helmet, go into the bunker, and pretend that nothing is happening, leave it to the courts. And when the courts did strike out S377A, we can come out and say well, the courts did it, not us.
By taking these steps, it is going to make people unhappy when they believe that a different course of action is the right course of action. What we have to do is to go and explain to them why we are doing it, why this is in the interest of Singapore, and how we are balancing all the different interests, and how the family structure will actually be better protected hereafter. These are not easy things to do. It would have been easier to have kept quiet.
Q: Minister, you spoke about protecting marriage, and last night PM Lee said the Constitution will be amended to ward off legal challenges against the definition of marriage. So, can you tell us a bit more about how this will be done?
A: I want to be clear, because there is some confusion. The definition of marriage is not going to be in the Constitution. That is not the intention. The risk is that the current definition of marriage in the Women's Charter can be challenged on the basis that it is in breach of Article 12 of the Constitution.
So, what we are planning to do is to put into the Constitution explicitly that Parliament can define the institution of marriage, and, in the way it is defined in the Women's Charter; and it can make other pro-family policies on the basis of that definition - that marriage is between a man and a woman. And that these laws and policies, which rely on the definition of marriage, cannot be challenged in court by reference to Article 12, by reference to the Constitution.
This means the definition of marriage in the Women's Charter - it will make it difficult to challenge that definition on the basis that it is unconstitutional. It will have to be dealt with in Parliament. So, if a party, a group of people, want to allow same-sex marriage, they will have to put that in their manifesto, fight elections, win the elections, get a majority, and then change the definition of marriage.
This Government's position is very clear. We are committed to strengthening the current structure of marriage, strengthening the family structure, and the policies that surround that structure of family. We think that is what is fundamental for Singapore, and, in fact, we are amending the Constitution to strengthen that position.
Q: You have been on the forefront of this contentious issue, and you have spoken at great lengths. To put it simply, you are like the face of it. So, following the announcement that S377A will be repealed, what are the concerns and responses that you have received so far?
A: I am not the face of it. But yes, I have spoken about it to many groups, but so have other ministers. We have all gone out there, gotten feedback, explained our thinking, explained our position, and there is a lot more of this that needs to be done. We need to take the concerns seriously. I take the concerns very seriously, and I can understand the concerns that have been expressed.
Let's look at these concerns.
I refer to a 2018 statement by the Presbyterian Church in Singapore. That statement, for example, says, and I am summarising - S377A should not be repealed as a moral marker, until and unless certain rights and guarantees are included in the Constitution. If you look at what they want: (a) Religious freedom and rights; (b) That there would be no legalisation of same-sex unions, adoptions by same-sex couples, and similar policies; and (c) That the laws will not penalise and discriminate against those who do not support the homosexual lifestyle.
If you look at the statement that was released by the National Council of Churches in Singapore, and again I am paraphrasing: (a) They are worried that there would be more contention and advocacy for civil unions, regardless of sexual orientation; (b) Our social policies on housing, education, adoption, advertising, film classifications - they don't want any change on that; (c) Three, the religious freedom for churches to teach or counsel should be protected; and (d) Four, that people should be protected from "reverse discrimination" in workplaces if they do not support LGBTQ+ activism or culture in workplaces.
So, if you go back to the 2018 statement by the Presbyterian churches - what are they asking? They are asking for safeguards to be in place, before S377A is to be repealed.
If you look at both statements, as well as the petitions and other statements that have been issued, I think I can summarise the concerns into four main areas:
• First, concerns over whether there will be a shift in our laws on marriage, and the laws and policies that are centred on marriage, like family formation, education, and so on;
• Two, freedom of religion;
• Three, pressure - they worry that there will be pressure to accept and conform to LGBTQ+ ideology in schools and workplaces; and
• Four, they worry about cancel culture, that they will not have the freedom to express their views on sex, gender, marriage, and family, without being silenced.
I think it is important that we deal with these points and be very clear where the Government stands.
On the first point, our policies on marriage, and other related policies centred on marriage - I have said housing, education, social policies - they are not going to change. In fact, we are going further. We are going to protect these policies from legal challenge, by amending the Constitution.
On the second issue, the Constitution guarantees full protection for freedom of religion - that is absolutely safeguarded, and it is a cornerstone, an article of faith for us. People must be free to practise their religion, and people must be free to be non-religious, not believe in any religion if they do not want to believe in a religion or agnostic. It is a free country, they would be able to do what they want, in that context.
If you look at the Maintenance of Religious Harmony Act, or MRHA. It sets out clearly that people should not be targeted on the basis of religion. It applies both ways. If a religious group or member is attacked by a non-religious group, such as an LGBT group, action can be taken, and will be taken. Likewise, action can be taken under the MRHA, if a religious group, using religion, attacks a non-religious group such as LGBT groups. Both sides should have freedom to share their views. They can express their disagreements with each other, as long as it does not cross the red lines in the law.
The third issue - pressure in workplaces and schools. Workplaces should be part of the secular space shared by all Singaporeans. They should not be places where people are compelled or pressured to participate in, or support, non-business related causes. Employees should not be discriminated against at work just because they hold traditional family values, or pro-LGBT values.
The Ministry of Manpower is looking at this issue, including:
• Protecting employees from being penalised or discriminated against in many respects.
• It is also looking at processes to protect those who report about workplace discrimination or harassment, so that people can feel safe about coming forward.
• People tell us that employees feel compelled, particularly at foreign MNCs, to put up the Pride flag, for example. These are matters of conscience. There should be no compulsion or pressure, direct or indirect.
It may be that we have to advise employers, particularly foreign employers, to be more careful and sensitive in Singapore. Don't get me wrong - they are looking at this, but it does not mean that all these things can be in the law, for example, non-discrimination. But I think they are looking at all of it. Certainly, I think we do not want pressure or compulsion, both on the side of LGBTQ as well as on the side of religion. People should be free in their conscience. This is a country where many people are religious, and that should be respected.
On education: Essentially, the Education Ministry says schools should be safe spaces for all students. Education policies, including sexuality education curriculum, will remain unchanged. Sexuality education will remain secular, based on traditional values, and sensitive to the multiracial and multi-religious make-up of our society. They have said that they will not tolerate bullying and cancel culture. Schools will partner with parents to guide children towards understanding, respect and empathy. Students should not be bullied because they have LGBTQ tendencies. They should not be bullied or ostracised if they do not hold pro-LGBTQ views, or if they hold religious views.
Fourth issue - cancel culture. In the feedback we have received, many are worried about being cancelled, and I take that very seriously. The Ministry of Law has been looking at measures to deal with the harm caused by cancel campaigns. People ought to be free to express their views without fearing being attacked - on both sides. So, we plan to do something about this. The religious groups feel that their freedom to express their views, to preach, is being curtailed by groups which cancel them, harass them, attack them.
We cannot sit by and do nothing. People must have the freedom to practise their religion. Preachers must be able to preach. Likewise, as I said, if you do not hold pro-religious views, if you hold views which are pro-religion, you must be free to hold your views. So, we intend to do something about this. We have to look at the right boundaries between hate speech and free speech, in this context. We should not allow a culture where people of religion are ostracised, attacked, for espousing their views or their disagreements with LGBT viewpoints. And vice versa, whether pro- or anti-LGBT.
NDR 2022: Govt will repeal Section 377A, but also amend Constitution to protect marriage from legal challenges
By Tham Yuen-C, Senior Political Correspondent, The Straits Times, 22 Aug 2022
Singapore will repeal Section 377A of the Penal Code, Prime Minister Lee Hsien Loong said on Sunday (Aug 21), confirming months of speculation that the Government might move on the law criminalising sex between men.
But to guard against the move triggering a drastic shift in societal norms, the Government will also amend the Constitution to protect the definition of marriage as one between a man and a woman to stave off future legal challenges, he added.
Explaining the rationale for repeal, he noted that there is a significant risk of the law being struck down by judges in future legal challenges, and it would be unwise to ignore this and do nothing.
Societal attitudes towards gay people have also "shifted appreciably" and it is timely to consider again whether sex between men in private should be a criminal offence, he added.
"We need to find the right way to reconcile and accommodate both the traditional mores of our society, and the aspiration of gay Singaporeans to be respected and accepted," he said.
"I believe (repeal) is the right thing to do, and something that most Singaporeans will now accept. This will bring the law into line with current social mores, and I hope, provide some relief to gay Singaporeans."
His announcement at the National Day Rally comes months after the Court of Appeal ruled in February this year that Section 377A of the Penal Code was unenforceable in its entirety. Following the judgment, Cabinet ministers held extensive consultations with religious leaders, lesbian, gay, bisexual and transgender (LGBT) groups as well as regular Singaporeans on the best way to deal with the law.
The court, led by Chief Justice Sundaresh Menon, ruled that Section 377A would remain on the books, but cannot be used to criminalise gay sex - going further than the Government's earlier promises that the law would not be proactively enforced on consensual sex between men.
On Sunday, PM Lee said that following this judgment, Minister for Home Affairs and Law K. Shanmugam and Attorney-General Lucien Wong have advised the Government that in a future court challenge, there is a significant risk of the law being struck down on the grounds that it breaches Article 12 of the Constitution - the Equal Protection provision.
When the House debated amendments to the Penal Code in 2007, then Nominated MP Siew Kum Hong had filed a citizen's petition to repeal Section 377A, sparking a passionate debate on the topic with fierce arguments from both sides.
PM Lee had argued then that it was better to accept the legal untidiness and ambiguity of keeping the law on the books, while not proactively enforcing it to "maintain a balance, to uphold a stable society with traditional heterosexual family values, but with space for homosexuals to live their lives and to contribute to the society".
It would have been too divisive to force the issue then, he said on Sunday.
PM Lee noted that Section 377A was originally introduced in the 1930s by the British colonial government, and reflects moral attitudes and social norms that prevailed back then.
He said that over time, homosexuality has become better understood scientifically and medically, resulting in greater acceptance of gay people for who they are instead of being shunned and stigmatised. This has been so in Singapore and many other societies, he added.
Many countries with similar laws have since repealed them, including several Asian countries, PM Lee added.
"It is timely to ask ourselves again the fundamental question: Should sex between men in private be a criminal offence?" he said, adding that it is a sensitive issue that needs to be resolved.
"Like every human society, we also have gay people in our midst. They are our fellow Singaporeans. They are our colleagues, our friends, our family members. They, too, want to live their own lives, participate in our community and contribute fully to Singapore," he added.
PM Lee acknowledged that Singaporeans still have differing views on whether homosexuality is right or wrong, but said most people accept that a person's sexual orientation and behaviour is a private and personal matter, and that sex between men should not be a criminal offence.
Even among those who want to retain Section 377A, most do not want to see it being actively enforced, he said. From the national point of view, private sexual behaviour between consenting adults also does not raise any law-and-order issue, he added.
"There is no justification to prosecute people for it, nor to make it a crime."
The months-long government review on what to do with the law had attracted pushback from religious groups and conservative Singaporeans, who have raised concerns that it could pave the way for LGBT activists to push for marriage equality.
Acknowledging these concerns, PM Lee said it had come through clearly over several months of engagement on the issue that while some feel strongly about keeping Section 377A itself, many of those who had reservations about the law being abolished worry about what repeal could lead to.
They want to preserve the status quo on how marriage is defined, what children are taught in schools, what is shown on television and in cinemas, and even what is generally acceptable in public, said PM Lee, adding that the Government, too, does not want the repeal to trigger wholesale changes in society.
Therefore, it will also move to amend the Constitution in tandem to protect the definition of marriage from being challenged constitutionally in the courts, he said.
"This will help us to repeal S377A in a controlled and carefully considered way. It will limit this change to what I believe most Singaporeans will accept, which is to decriminalise sexual relations between consenting men in private," he said.
"But it will also keep what I believe most Singaporeans still want, and that is to retain the basic family structure of marriage between a man and a woman, within which we have and raise our children," he added to applause from the audience at the Institute of Technical Education headquarters in Ang Mo Kio.
Marriage is defined as a union between a man and a woman in the Interpretation Act and the Women's Charter, and many national policies rely upon this definition, including public housing, education, adoption rules, advertising standards and film classification, he added.
PM Lee said the Government has no intention of changing the definition of marriage or these policies.
However, as the law stands, marriage as it is now defined can be challenged on constitutional grounds in the courts, just like Section 377A has been challenged, he added.
For same-sex marriages to become recognised here like that would not be ideal, as Parliament may not be able to restore the status quo ante even if the majority of MPs opposed the changes, since changing the Constitution would require a two-thirds majority, he added.
Ultimately, judges are trained and appointed to interpret and apply the law, and have neither the expertise nor the mandate to rule on social norms and values, he said. "These are fundamentally not legal problems, but political issues."
PM Lee said this has been wisely acknowledged by the courts in their judgments dealing with such cases.
If those seeking change try to force the pace through litigation, which is by nature adversarial, it would highlight differences, inflame tensions and polarise society, he added.
He called on all sides to avoid aggressive and divisive activism, noting that if one side pushes too hard, the other side will push back even harder.
In some Western societies, this has resulted in culture wars, contempt for opposing views, cancel culture and bitter feuds splitting society into warring tribes, and Singapore should not go in this direction, he cautioned, adding that there are already some signs of such developments here.
He urged all groups to exercise restraint and work hard to keep society harmonious so Singapore can move forward together.
"What we seek is a political accommodation that balances different legitimate views and aspirations among Singaporeans," he added.
"For some, this will be too modest a step. For others, it will be a step taken only with great reluctance, even regret. But in a society where diverse groups have strongly held opposing views, everyone has to accept that no group can have things all their way."
He said: "I hope the new balance will enable Singapore to remain a tolerant and inclusive society for many years to come."
NDR 2022: LGBTQ community expresses relief at repeal of Section 377A; religious groups voice concerns
By Jean Iau The Straits Times, 22 Aug 2022
Lesbian, gay, bisexual, transgender and queer (LGBTQ) community groups have expressed relief that the law which criminalises sex between men will be repealed, and called it a "powerful statement that state-sanctioned discrimination has no place in Singapore".
Prime Minister Lee Hsien Loong had announced the repeal of Section 377A of the Penal Code during his National Day Rally on Sunday (Aug 21), but also said the Constitution will be amended to safeguard the definition of marriage between a man and a woman from legal challenges.
Religious groups such as the National Council of Churches of Singapore (NCCS) said they appreciated the Government's assurance that it will safeguard the institution of marriage, but expressed concern that the repeal would lead to advocacy for civil unions to be legalised.
The Roman Catholic Archdiocese of Singapore urged the Government to define marriage in the Constitution before repealing Section 377A. "Otherwise, we will be taking a slippery road of no return, weakening the fabric of a strong society which is founded on the bedrock of holistic families and marriages," said the Archbishop's Communications Office.
For LGBTQ community groups, any move by the Government to introduce further legislation or constitutional amendments that signal they are unequal citizens is disappointing.
"Such a decision will undermine the secular character of our Constitution, codify further discrimination into supreme law, and tie the hands of future Parliaments," said 22 groups, including Pink Dot SG, Oogachaga and Action for Aids Singapore, in a joint statement.
"The repeal of Section 377A is the first step on a long road towards full equality for LGBTQ people in Singapore," they said, adding that their immediate priorities will be to tackle discrimination at home, in schools, workplaces, and in the housing and healthcare system.
In its statement, the NCCS said it was concerned that the repeal would lead to an intensification in efforts for civil unions to be legalised in Singapore, on the same argument of guaranteeing constitutional rights for all citizens, regardless of their sexual orientation.
It said repealing Section 377A would serve to replace the symbolic role of the law as a "moral signifier" that society's laws, policies and values remain strongly in support of marriage and the family unit as between a man and a woman.
The NCCS also sought the Government's assurance that the religious freedom of churches to teach against gay sexual acts will be protected.
Venerable Seck Kwang Phing, the president of the Singapore Buddhist Federation, said traditional family values have to be preserved. "(But) we cannot force our values onto others or instil our own ideas, especially in the young. Let them have their own choices when they come to a mature age."
Mufti Nazirudin Mohd Nasir, Singapore's top Islamic leader, said it is important that religious values remain the same, even as laws change. The Islamic Religious Council of Singapore will continue to work with the Government to strengthen the institution of marriage while ensuring that society remains cohesive, he added.
Reverend Yang Tuck Yoong, the chairman of the Alliance of Pentecostal & Charismatic Churches of Singapore, called the repeal an "extremely regrettable decision". The alliance also reiterated that the party whip should be lifted so MPs can vote freely on the matter when it is debated in Parliament.
Speaking to reporters, Progress Singapore Party Non-Constituency MP Leong Mun Wai said his party is happy that the Government has come up with a clear position that appears to balance the interests of both sides very well, but added that it will have to look at the details of the legislation.
Meanwhile, Association of Small and Medium Enterprises (ASME) president Kurt Wee said it supports the repeal and added that it is now the right move for businesses to treat sexual orientation the same way they do with race and gender.
"Businesses should be progressive to be a step ahead of general social norms. ASME supports the Government's well-thought and timely move to repeal 377A."
Additional reporting by Jessie Lim and Dominic Low
Five things to know as Singapore moves to repeal Section 377A
By Jean Iau , The Straits Times, 21 Aug 2022
Prime Minister Lee Hsien Loong said during the National Day Rally on Sunday (Aug 21) that Singapore will do away with Section 377A of the Penal Code that criminalises sex between men.
Along with the widely anticipated repeal of the colonial-era law introduced by the British in 1938, the Government will also amend the Constitution to uphold and safeguard the definition of marriage between a man and a woman.
Here are some of the highlights around the announcement.
1. Why repeal the law now?
PM Lee said attitudes have shifted and gay people are now better accepted in Singapore, especially among younger Singaporeans.
Most Singaporeans now accept that a person's sexual orientation and behaviour are a private matter, and even many of those who want to retain 377A do not want to see it being actively enforced and criminal penalties applied.
At the same time, Section 377A, which has been the subject of multiple constitutional challenges in the past decade could also be struck off in a future challenge.
After the most recent case, which was thrown out by the Court of Appeal in February, Minister for Home Affairs and Law K. Shanmugam and the Attorney-General Lucien Wong advised that there is a significant risk the law could be struck down in a future challenge on the grounds that it breaches Article 12 of the Constitution, said PM Lee.
He added: "We have to take that advice seriously. It would be unwise to ignore the risk, and do nothing."
In its judgment in February, the apex court considered various scenarios under which 377A could fall foul of the Article, which states that "all persons are equal before the law and entitled to the equal protection of the law".
2. Safeguarding marriage and other policies
Along with the repeal, the definition of marriage will be protected from legal challenges in future, through amending the Constitution, PM Lee said.
The Interpretation Act defines marriage as "a voluntary union of one man and one woman to the exclusion of all others during the continuance of the marriage", while according to the Women's Charter, "a marriage solemnised in Singapore or elsewhere between persons who, at the date of the marriage, are not respectively male and female, is void."
PM Lee said the Government has no plans to change the existing definition of marriage or any of the policies that rely upon it, such as those on public housing, education, adoption rules, advertising standards and film classification.
Protecting this will help Singapore repeal Section 377A in a controlled, carefully considered way by decriminalising sexual relations between consenting men in private but retaining the basic family structure of marriage between a man and a woman, he added.
3. Why is there a need to protect marriage?
As the law stands, marriage, as it is now defined, can be challenged on constitutional grounds in the courts, just like Section 377A has been challenged, PM Lee said.
He added that it would not be ideal for same-sex marriage to become recognised here this way, noting that the court is not the forum for political issues to be decided.
If this happens, Parliament may not be able to change the law even if the majority of MPs oppose the changes, since changing the Constitution would require a two-thirds majority, he said.
Judges are trained and appointed to interpret and apply the law, and have neither the expertise nor the mandate to rule on social norms and values, and this has been wisely acknowledged by the courts in their judgments dealing with such cases, he added.
4. Repeal was many years in the making
In October 2007, as the House debated amendments to the Penal Code, then Nominated MP Siew Kum Hong filed a citizen's petition to repeal Section 377A. The move sparked a passionate debate on the topic, with fierce arguments from both sides.
PM Lee said that at the time, he acknowledged that what consenting adults do in private is their personal affair, but that not everyone was equally accepting of homosexuality, particularly within certain religious groups, including the Muslims, Catholics and many Protestant denominations.
The Government decided to leave Section 377A on the books, but not enforce it as it would have been too divisive to force the issue then.
He noted that the compromise did not satisfy every group. "But by and large, it has enabled all of us to get along, and so we have lived with this sensitive issue, without it monopolising our national agenda or dividing our society," he added.
He said one of the delicate tasks of the Government is to update laws and practices from time to time to reflect evolving social values and norms, and that its cautious approach on such matters has gone down well with Singaporeans.
5. What are the next steps?
PM Lee said he anticipates further reactions and discussions arising from his announcement. He added that there will be a full debate on the matter when the legislation is brought to Parliament for amendment, but did not say when this would happen.
"I hope the new balance will enable Singapore to remain a tolerant and inclusive society for many years to come," he said.
* Bills tabled to repeal Section 377A, amend Constitution to protect definition of marriage from court challenge in Parliament on 20 October 2022
By Lim Yan Liang, Assistant Political Editor, The Straits Times, 20 Oct 2022
A Bill to repeal Section 377A of the Penal Code, which criminalises sex between men, was introduced in Parliament on Thursday, paving the way for the colonial-era law to be struck from the books.
At the same time, a Bill to amend the Constitution was introduced to protect the current definition of marriage as being between a man and woman – and laws and government policies made on that basis – from being challenged in the courts on constitutional grounds.
There are two laws that define marriage in the Republic. The Women’s Charter states that a marriage that is not between a man and a woman is void, while the Interpretation Act states that a monogamous marriage is the union of one man and one woman.
The two Bills tabled on Thursday will be debated together when Parliament sits on Nov 28, and then voted on separately. This is because repealing a law requires just a simple majority of MPs, while any amendment to the Constitution has to be supported by at least two-thirds of MPs, excluding Nominated MPs.
The Penal Code (Amendment) Bill to repeal 377A was introduced in Parliament by Minister for Home Affairs and Law K. Shanmugam.
It comes after Prime Minister Lee Hsien Loong said at the National Day Rally in August that the Government will repeal S377A and decriminalise sex between men, as attitudes towards homosexuality have shifted appreciably. Most people accept that a person’s sexual orientation and behaviour is a private matter, and that sex between men should not be a criminal offence.
A recent Court of Appeal decision and advice from the Attorney-General also point to significant risk of S377A being struck down by the courts in a future challenge to declare the law unconstitutional on the grounds that it breaches Article 12, the equal protection provision of the Constitution, PM Lee said then.
Article 12 states that all persons are equal before the law and entitled to the equal protection of the law. As the Constitution is the highest law in the land, any law enacted in Parliament but found to be inconsistent with it could be struck down by the courts.
At the same time, most Singaporeans do not want the repeal to trigger a drastic shift in societal norms across the board, PM Lee had said of the Government’s consultations with the public, including on the definition of marriage and what is taught in schools.
Following the rally, Cabinet ministers stated that the Government would move to safeguard marriage and pro-family policies, while emphasising that it would not enshrine the definition of marriage as between a man and a woman in the Constitution.
The constitutional amendment, tabled by Minister for Social and Family Development Masagos Zulkifli, will introduce a new Article 156 (Institution of Marriage) clause to the Constitution.
Article 156 states that Parliament can define the institution of marriage, and make pro-family laws on the basis of that definition. The proposed amendment also spells out that the Government and the public authorities may enact policies that protect, safeguard, support, foster and promote the institution of marriage.
The amendment also protects existing laws that define marriage as a union between a man and a woman, and states that such laws and policies cannot be found unconstitutional by the courts on the grounds that they contravene the fundamental liberties set out in the Constitution, such as Article 12.
Examples of such policies include those on public housing, where married couples receive financial benefits, as well as education and media policies that promote and safeguard the institution of marriage, said the Ministry of Home Affairs and the Ministry of Social and Family Development in a joint statement after the Bills were introduced.
Should the amendment pass, any change to the heterosexual definition of marriage and laws made on that basis can happen only through Parliament and not through the courts, added the ministries.
“Such issues should be decided by Parliament, where there can be a full debate that accounts for different perspectives and considerations, and is not tied to a binary (win-lose) decision like in the courts,” the ministries said.
They also noted that the Bill does not codify or enshrine the definition of marriage into the Constitution.
On Thursday, Mr Masagos reiterated the Government’s position that families are foundational to society here, and that the constitutional amendment is aimed at protecting the current definition and laws and policies that rely on this definition from a court challenge.
“This significant amendment to our Constitution demonstrates our commitment for Singapore to be a pro-family society and build a Singapore made for families,” he said at a dialogue with volunteers from social service agencies after the Parliament sitting.
Deputy Prime Minister Lawrence Wong had said previously that the People’s Action Party will not be lifting the whip when Parliament votes to repeal S377A, which means MPs will have to vote according to the party’s position. This followed calls by some quarters for the party whip to be lifted so that MPs can vote freely according to their conscience.
Mr Wong had said in August that repealing the law is a matter of public policy, given that the courts had already said the law would not be enforced, and that measures would be put in place so that doing so would not trigger further societal changes.
The changes come after over a decade of contention and growing polarisation over how to move forward from S377A. In 2007, Parliament decided after a spirited debate to retain the law without enforcing it as an untidy but practical compromise given evolving societal attitudes and norms.
Multiple court challenges were launched between 2010 and 2019, culminating in the Court of Appeal’s decision in February 2022 that a future challenge by a person with standing to do so cannot be ruled out.
In his rally speech this year, PM Lee had called for restraint on this sensitive matter, noting there were signs that contempt for opposing views, cancel culture and bitter feuds splitting society which have been seen in some Western societies were beginning to manifest here.
Move to protect definition of marriage from court challenges will satisfy most Singaporeans: Observers
By Hariz Baharudin, Assistant News Editor, The Straits Times, 20 Oct 2022
Amending the Constitution to protect the current definition of marriage from court challenges will satisfy most Singaporeans, said observers, as it balances the move to repeal the law that criminalises sex between men.
On Thursday, two Bills were introduced in Parliament – one to repeal Section 377A of the Penal Code and the other to amend the Constitution to prevent the current definition of marriage – between a man and woman – and government policies made on that basis, from being challenged in the courts on constitutional grounds.
Singapore Management University (SMU) sociology professor Paulin Straughan said the vast majority of Singaporeans are sympathetic to concerns of having Section 377A on the books, but they also continue to “valorise” the idea of marriage as between a heterosexual couple, she said.
“Because of the sentiments here to uphold the definition of marriage as being between a heterosexual couple, I think that the vast majority of Singaporeans would probably find this middle ground comfortable for now,” she added.
Most Singaporeans knew that the moves in Parliament on Thursday were coming up since Prime Minister Lee Hsien Loong had announced them in August, and most would be fine with them, said National University of Singapore sociologist Tan Ern Ser.
Dr Mathew Mathews, the Institute of Policy Studies’ principal research fellow and head of social lab, noted that some people were concerned that Singapore would follow the path of other countries to legalise gay marriage after Section 377A is repealed.
The constitutional amendment will provide the assurance that Singapore is not making such plans, he added.
It provides safeguards that “such decisions will need to go through the political process where there is expectedly much negotiation, rather than be adjudicated through the courts, where matters tend to be decided in a binary, win-lose decision,” said Dr Mathews.
Associate Professor of Law at SMU Eugene Tan said the moves should help reduce lawsuits on the constitutionality of laws and policies that are premised on marriage being a union of a woman and a man, while also facilitating the accommodation of differences in society here.
He added that the constitutional amendment does not overreach, as it maintains the status quo on how marriage is defined and on laws and policies based on that definition. “This is very much aligned with the preference of most Singaporeans.”
But there is no guarantee that culture wars will not happen, he cautioned.
The topics of homosexuality and family continue to be divisive unless more conversations about them are had, said political observer Felix Tan from Nanyang Technological University.
Extremists on both the conservative and liberal sides of these issues will not be satisfied with changes, and there is a stronger need for dialogue to understand each other’s concerns that goes beyond simply instituting laws, he said.
“These changes will have ramifications on civil society moving ahead. One can only hope that with this new law and the removal of 377A, it will reduce the propensity of all to denigrate each other’s beliefs; values and/or sexual orientation,” he said.
What to know about the constitutional changes to protect the definition of marriage
By Goh Yan Han, Political Correspondent, The Straits Times, 21 Oct 2022
Amendments to the Constitution were introduced in a Bill on Thursday to protect the current definition of marriage – as that between a man and a woman – from legal challenge.
This follows the Government’s move to repeal Section 377A of the Penal Code, which criminalises gay sex between men.
The constitutional amendments are being introduced in a new Article 156 in Part 13 of the Constitution.
Here is what you need to know about them:
What does the proposed Article 156 say, exactly?
It reads:
156. (1) The legislature may, by law, define, regulate, protect, safeguard, support, foster and promote the institution of marriage.
(2) Subject to any written law, the Government and any public authority may, in the exercise of their executive authority, protect, safeguard, support, foster and promote the institution of marriage.
(3) Nothing in Part 4 invalidates a law enacted before, on or after the date of commencement of the Constitution of the Republic of Singapore (Amendment No. 3) Act 2022 by reason that the law
(a) defines marriage as a union between a man and a woman; or
(b) is based on such a definition of marriage.
(4) Nothing in Part 4 invalidates an exercise of authority before, on or after the date of commencement of the Constitution of the Republic of Singapore (Amendment No. 3) Act 2022 by reason that the exercise is based on a definition of marriage as a union between a man and a woman.
What does Part 4 refer to?
Under Part 4 of the Constitution, certain fundamental liberties are protected. These include Article 10, which prohibits slavery and forced labour; Article 12 on equal protection of the law; and Article 15, which guarantees freedom of religion.
So what is the effect of Article 156?
The first clause basically clarifies that the power to make laws to do with the institution of marriage lies with Parliament (the legislature).
The second clause adds to this by noting that the Government and public authorities may protect, safeguard, support, foster and promote the institution of marriage through policies.
In Singapore’s case, these include public housing policies, where married couples get financial benefits. In education, too, policies and curricula are anchored on Singapore’s prevailing family values and social norms.
The other clauses of Article 156 protect laws defining marriage as a union between a man and a woman, and laws that are based on such a definition, from being invalidated by Part 4 of the Constitution, which deals with fundamental liberties.
These include Article 12, which comes under Part 4 of the Constitution, which states that all individuals are equal before the law and entitled to the equal protection of the law.
As the Constitution is the highest law of the land, any law enacted in Parliament but found to be inconsistent with it could be struck down by the courts.
In fact, a recent Court of Appeal decision on Section 377A raises a significant risk that the courts would strike down Section 377A in a future challenge, on the grounds that it breaches the equal protection clause in Article 12 of the Constitution. Under Section 377A, it is an offence for men to engage in gay sex, but the law does not cover women.
Article 156, if passed, will prevent the current definition of marriage (as between a man and a woman) from being struck down by the courts based on such a constitutional challenge.
During the National Day Rally in August, Prime Minister Lee Hsien Loong had said that the courts are not the right forum to decide on such important sociopolitical issues that are fundamental to society. Such issues should be decided by Parliament, where there can be full debate that accounts for different perspectives and considerations, and is not tied to a binary (win-lose) decision like in the courts.
This is why the Government said it will amend the Constitution to protect the heterosexual definition of marriage, and laws and policies based on the heterosexual definition of marriage, from a successful constitutional challenge.
The Government has said that even with the repeal of Section 377A, most Singaporeans still want to maintain the current family and social norms, where marriage is between a man and a woman, and children are brought up in such a family structure.
“The Government supports this view, and has affirmed that it will uphold the current heterosexual definition of marriage and the family structure that arises from it,” said the Home Affairs and Social and Family Development ministries on Thursday.
What laws currently define marriage in Singapore?
There are currently two laws that do so. The Women’s Charter states that a marriage that is not between a man and a woman is void, while the Interpretation Act states that a monogamous marriage is the union of one man and one woman.
Various policies – as mentioned above, housing and education – take their lead from this definition.
Does Article 156 amount to defining what marriage is in the Constitution?
No. The Bill does not codify or enshrine the definition of marriage in the Constitution.
Why isn’t the definition permanently written into the Constitution, as some groups have suggested?
The definition of marriage may be subject to change in the future, depending on the attitudes of society at the time.
However, it will not change under PM Lee’s watch, Deputy Prime Minister Lawrence Wong has said.
Mr Wong, who is slated to be Singapore’s next prime minister, has also said that the definition will not change, should the People’s Action Party win the next election.
In an earlier interview, Mr Wong had said: “Likewise, we will not change the laws and policies that rely on this definition of marriage, and that relates to public housing, adoption, what we teach our children in schools, advertising standards, film classification, and so on. Basically, the overall tone of society will not change – our laws and policies will remain the same.”
In the same interview, Minister for Culture, Community and Youth Edwin Tong said that it may not be appropriate to entrench the definition of marriage in the Constitution, as some churches had called for.
“This entrenchment would elevate marriage to the same level as fundamental rights in our Constitution, rights such as life and personal liberty,” he noted. “And this would fundamentally change the whole complexion and the schema of the Constitution.”
Mr Tong said: “If we hard-coded marriage in this way, in the most fundamental legal document in Singapore, we may end up prompting those who disagree with this position to campaign to mobilise, agitate, perhaps even with greater intensity.”
He added that this would not be good for society.
Does it mean a future government can change the definition of marriage? What will it need to do?
Yes, it can. In a previous interview, Law and Home Affairs Minister K. Shanmugam said that any political party or group that wants to push for same-sex marriage will be able to do so.
“They will have to put that in their manifesto, fight elections, get a majority and then change the definition of marriage,” he said.
For example, changing the Women’s Charter, which is the piece of legislation that currently defines marriage, requires a simple majority of votes in Parliament.
What next, now that the constitutional amendment Bill on Article 156 has been introduced?
The Bill will be debated at the Nov 28 parliamentary sitting. MPs will speak about the changes before it is put to a vote.
As an amendment to the Constitution is involved, a two-thirds majority of all 92 elected MPs and the two Non-Constituency MPs, but excluding the nine Nominated MPs, is required for the Bill to be passed, as compared with the usual simple majority for other pieces of legislation. In other words, it needs 63 votes to get passed. The PAP has 83 MPs.
The repeal of Section 377A of the Penal Code, on the other hand, requires a simple majority – or 52 – of the 103 MPs.
Mr Wong had said in August that the PAP will not be lifting the Whip when Parliament votes on the move to repeal Section 377A as the matter is one of public policy. This means that its MPs will have to vote according to the party’s position.
The Workers’ Party declined to comment when asked then if it would lift its party whip for the debate.
Once the Bill is passed by Parliament, it will be scrutinised by the Presidential Council for Minority Rights to ensure that it does not discriminate against any racial or religious community. This is generally completed within 30 days of a Bill being passed.
Following that, President Halimah Yacob will give her assent, and once it is gazetted, the Bill will be in force.
* Day 1 of Section 377A debate in Parliament: 28 November 2022
Repealing S377A the right step for Government, Parliament: Ministers
By Goh Yan Han, Political Correspondent, The Straits Times, 28 Nov 2022
Repealing the longstanding law criminalising gay sex is the responsible thing for the Government and Parliament to do, two ministers said on Monday.
There is a real risk that the courts could strike down Section 377A of the Penal Code, with an impact on marriage and other policies, and this would not be in Singapore’s interests, they said.
That is why the Constitution is being amended with a new Article 156 to protect the current definition of marriage as between a man and a woman, and related policies, from legal challenges, they told Parliament at the start of a debate on the amendment as well as the repeal of S377A.
“This Bill is what a responsible Government, carrying out its duty to the people of Singapore, would introduce,” said Social and Family Development Minister Masagos Zulkifli, who opened the debate by elaborating on the constitutional amendment. “It allows the political process to balance different interests and perspectives and does not pass the buck to the court to rule on social issues which are best dealt with via parliaments.”
On the repeal, Law and Home Affairs Minister K. Shanmugam said leaving the decision to the courts would divide society.
“Housing, education, other policies – they could all be at risk. Knowing all these risks and refusing to take a position or be clear in how we will deal with it, is avoiding our responsibilities as MPs,” he said. “It is easier politically, but it is also worse for Singapore and Singaporeans. To put it bluntly, that will be an abdication of duty.”
The debate, which resumes on Tuesday, comes after Prime Minister Lee Hsien Loong said at the National Day Rally in August that the Government will repeal S377A. This follows a Court of Appeal decision in February and advice from the Attorney-General that signalled the risk of S377A being struck down by the courts in a future challenge.
At the same time, most Singaporeans do not want the repeal to trigger a drastic shift in societal norms, the ministers said.
Article 156 will protect the prevailing consensus in society that marriage is between a man and a woman, and children should be born and raised within such families, said Mr Masagos. Future governments are also not prevented from amending this definition in Parliament, should they choose to do so.
Mr Shanmugam said society is more ready now for repeal since S377A was last extensively debated in 2007, when the Government said that while the law remained, it would not be enforced. On Monday, he acknowledged that the law had continued to hurt gay people. “Let us start to... heal these divides, remove their pain. S377A should no longer be in our books. Repealing S377A makes it clear that gay people are not criminals.”
Many of the 25 MPs who spoke on Monday echoed these sentiments.
Senior Parliamentary Secretary for Sustainability and the Environment and Transport Baey Yam Keng cited various famous foreign personalities who are openly gay, such as Apple chief Tim Cook and actor Ian McKellen. “These are people who walk among us every day… They should not be treated (as) any lesser for what they would like to do in private. We need to be inclusive of different lifestyles just as we’d like to have the choice and freedom to lead our private life in peace.”
A number of MPs expressed concern about cancel culture, religious freedom, and discrimination that could be faced by those with differing views on homosexuality. Mr Fahmi Aliman (Marine Parade GRC) asked that companies not penalise and discriminate against workers who choose not to attend diversity and inclusion programmes or events.
Workers’ Party (WP) MP Leon Perera (Aljunied GRC) said that those who question lesbian, gay, bisexual, transgender and queer (LGBTQ) relationships on the grounds of religious faith or deep personal conviction should have the freedom to espouse their views respectfully, while those who believe in LGBTQ equality have the right to respectfully criticise opposing views. “They should not be cancelled. They should not be demonised. To criticise a choice someone makes in their personal life is not tantamount to criticising, denigrating or disenfranchising the person, but this depends on how the criticism is made,” he said.
Some MPs also called for continued commitment to pro-family values. Foreign Minister Vivian Balakrishnan said he believed “absolutely, with no apology and with no reservations, in the traditional family form as an ideal”. He said: “We have to find ways to continue to protect this precious and fragile institution of the traditional family and marriage and we have to remember that the welfare and the rights of our children are paramount.”
Leader of the Opposition Pritam Singh (Aljunied GRC) said in repealing S377A, religious Singaporeans are not asked to endorse homosexuality, but to instead honour the equality of all Singaporeans in the eyes of the law, that no consenting adults should be regarded as criminals because of what they do in private.
MPs will vote on both Bills – the constitutional amendment and the repeal – at the end of debate on Tuesday.
The People’s Action Party has said it will not lift the party Whip – requiring all its MPs to vote as a bloc – as the changes are a matter of public policy. But Mr Singh said on Monday he would lift the Whip on his party’s MPs, who are divided on the issue, adding: “Not lifting the whip would deny WP MPs not in favour of a repeal of S377A the opportunity to vote freely and in doing so, to also represent Singaporeans who see this issue as a matter of deep religious belief and conscience.”
Of the five WP MPs who spoke on Monday, Mr Singh and Mr Perera said they agreed with both Bills; Mr Dennis Tan (Hougang) and Mr Gerald Giam (Aljunied GRC) said they were against the repeal but for the constitutional amendments; while Ms Sylvia Lim (Aljunied GRC) said she was pro-repeal but would abstain from voting on the constitutional amendments.
Mr Singh said Mr Faisal Manap (Aljunied GRC) was against the repeal as a matter of religion and conscience, while Mr Louis Chua (Sengkang GRC) was pro-repeal. Both men had tested positive for Covid-19 and did not attend Parliament.
Ms Hazel Poa, a Non-Constituency MP from the Progress Singapore Party, said the party had strong differing views but decided to support the repeal of S377A. However, it also called for a national referendum on the definition of marriage.
Meanwhile, Nominated MPs Mark Chay and Cheng Hsing Yao said they were pro-repeal while Professor Hoon Hian Teck said he was against it.
A common thread among MPs was a call for mutual respect and civil discussion despite differing views. Ms Cheryl Chan (East Coast GRC) said: “For us to move forward as a country, there needs to be more ability in us to actively hear different viewpoints. Let’s not allow divisive voices to break us apart, but rather for us to consider when and how we want to be inclusive while maintaining our own beliefs and values.”
S377A repeal: Constitutional amendment will protect policies that promote heterosexual marriage, says Masagos
By Chin Soo Fang,Senior Correspondent, The Straits Times, 28 Nov 2022
There is strong consensus in society that marriage should be between a man and a woman, with children born and raised within such families. Amendments to the Constitution to protect this definition from legal challenge will help uphold policies that reflect this consensus, Minister for Social and Family Development Masagos Zulkifli told Parliament on Monday.
These include public housing policies that give preference to married couples, policies on adopting children, guidelines on what media content is acceptable, and what children are taught, he said. For instance, the pre-school and primary school curriculum will not feature same-sex parents, and at older ages, the focus will be on treating everyone with respect and empathy, but not promoting same-sex relationships.
The amendment introduces a new Article 156 of the Constitution, which makes clear that Parliament can act to define, regulate and protect the institution of marriage. It also allows the Government and public agencies to safeguard, support, foster and promote marriage, which the law currently defines as between a man and a woman.
Speaking at the start of the debate on the changes, which are being debated together with the repeal of Section 377A of the Penal Code, which criminalises gay sex, Mr Masagos noted that the PAP Government has been consistent in its strong support for the institution of marriage and the family through its policies and legislation dating back to the Women’s Charter in 1961.
Various policies also reflect and reinforce this support for marriage and family, he said. These include encouraging parenthood within marriage, not supporting same-sex family formation, and maintaining Singapore’s policy against planned and deliberate single parenthood, including via assisted reproduction techniques or surrogacy.
Likewise, what is taught in pre-schools and schools is based on marriage as between a man and a woman, and family as the basic unit of society. Higher age ratings apply for media content depicting non-traditional family units, such as same-sex families, and public libraries do not carry books that depict such family units for very young children, he added.
“Singapore’s public policy is and has always been to uphold heterosexual marriage and promote the formation of families within such marriages,” he said. “Consistent with this policy, an overseas same-sex marriage will, generally, not be accorded legal recognition in Singapore.”
However, just as there have been challenges on the constitutionality of Section 377A, there can also be challenges to laws and policies related to marriage, said Mr Masagos, citing examples from jurisdictions such as India to show how changes led by the courts could polarise society.
“This Bill is what a responsible Government, carrying out its duty to the people of Singapore, would introduce. It allows the political process to balance different interests and perspectives and does not pass the buck to the court to rule on social issues which are best dealt with via parliaments,” he said.
He acknowledged that many Singaporeans had written to the Government about the subject, and some had wanted to go further – by enshrining the definition of marriage in the Constitution.
“We understand that these calls come from a sincere belief in the sanctity of marriage and reflect a genuine worry that the institution of marriage might be changed in the future to include same-sex marriages.”
But he added: “Elevating marriage to the same level as fundamental rights in the Constitution would not be appropriate.”
Mr Masagos said that while marriage and family are the bedrock of society, to elevate marriage to the same level as fundamental rights would change the whole complexion of the Constitution. The definition of marriage is and will remain in the Women’s Charter, Interpretation Act and Administration of Muslim Law Act, he added.
“Importantly, this Government will not use our current super-majority in Parliament to tie the hands of the future generations,” he said. “Hence, the constitutional amendment will not prevent future governments, elected by the people, from amending the legal definition of marriage by a simple majority in Parliament, should they choose to do so.”
What is clear is that the definition of marriage and related policies should not be determined by the courts, he said. “In fact, this constitutional amendment provides greater protection than today, not just for the definition of marriage, but also related policies.”
Mr Masagos also reiterated Prime Minister Lee Hsien Loong’s assurance that the Government has no intention of changing the definition of marriage, and Deputy Prime Minister Lawrence Wong’s assurance that it will not change this under his watch.
Singapore must also continue to protect all individuals from scorn or harm, he said. “This includes homosexuals who are members of our society, our kith and kin,” he added. “Homosexuals have a place in our society, and space to live their lives in Singapore.”
At the same time, religious groups can continue to preach about homosexuality according to their religious beliefs, but not instigate violence or intimidation towards others or a particular group, the minister said.
He also made clear that Singapore’s pro-family values and position are not a result of a majoritarian or religious approach.
“It is one that we share in common as Singaporeans, and what this Government believes in and stands for,” he said. “It is how we have come so far and will enable our society to perpetuate and flourish in the future.”
Repealing 377A is right thing to do; duty of MPs, not courts, to act on the law: Shanmugam
By Ng Wei Kai, The Straits Times, 28 Nov 2022
Consensual sex between adult men does not raise concerns about law and order and thus should not be looked at as a criminal issue, Home Affairs and Law Minister K. Shanmugam said in Parliament on Monday.
Furthermore, Section 377A of the Penal Code, which criminalises such acts, harms gay people in Singapore, he said during the debate on repealing the law.
He added that there has been a clear risk of the law being struck down in the courts and if Parliament allowed this to happen, MPs would be avoiding their duty and the outcome would be worse for Singaporeans.
Mr Shanmugam said: “So I say, the time has come for us to remove Section 377A, because it humiliates and hurts gay people.
“Most gay people do not cause harm to others; they just want to live peacefully and quietly and be accepted as part of society the same as any other Singaporean.”
He said gay Singaporeans do not deserve to be stigmatised for their sexual orientation.
“To a gay person, even if Section 377A is not enforced, it is there: Memorialised in law, a sword hanging over his head, a daily reminder that every time he engages in private sexual activity, behind closed doors in the sanctity of his bedroom, he is nevertheless a criminal.
“We have to ask: Is it fair that gays have to live in this way?”
He said this is not a situation that Singaporeans should accept, even if they personally disagree with homosexuality. He added that even many of those who do not want the law to be repealed do not want it enforced.
Mr Shanmugam said that for this reason, the law should no longer be on the books and repealing it makes it clear that gay people are not criminals.
He was speaking in a wide-ranging debate on repealing the law that more than 30 MPs are expected to participate in over two days, following an announcement by Prime Minister Lee Hsien Loong at the National Day Rally in August that the Government would remove the law, which has stood since colonial times.
At the time, PM Lee added that the Government would also amend the Constitution to ensure that the legal definition of marriage defined as between a man and a woman would be left to Parliament and not the courts.
377A is an issue for Parliament, not the courts
Mr Shanmugam also spoke on a second reason for repealing the law: a significant risk that the courts may strike it down in the future if Parliament were to leave it alone.
The law sustained two challenges in the courts in the last 10 years on the claim that it violates Singapore’s Constitution, but the Court of Appeal on Feb 28 ruled that the law was “unenforceable in its entirety”.
Mr Shanmugam went through the legal arguments surrounding the decisions the courts made before making the point that allowing the courts to decide such a difficult societal issue would be an abdication of responsibility on the part of Parliament and could lead to a cascade effect of challenges to various policies.
Mr Shanmugam said that in Singapore’s system, it is not the role of the courts to deal with such issues that need Parliament’s ability to build consensus and consider various points of view.
He said: “Court processes are adversarial by nature. Their decisions are binary – it is a zero-sum game; you either win or you lose. There is no middle ground, no balancing of competing interests.”
“The courts cannot consider competing social norms and social consequences of their decisions.,” he added.
Allowing Section 377A and even the definition of marriage to be changed through a court challenge could create a cascading effect affecting questions relating to media content, housing and other policies, he said.
Such changes through the courts are not in Singapore’s interests, Mr Shanmugam said.
He said that to act in the best interests of society, the Government must move on this issue, given the legal analysis.
“We can look at the US to see how court decisions on such issues can seriously affect the fabric of society, divide the society and unleash partisan views on both sides of the divide,” he said.
“If we have that in Singapore, our social fabric will fray.”
He implored MPs to do what is expected of them and chart a path forward on the difficult issue.
377A’s roots reach back to 16th-century England
Mr Shanmugam also sketched the historical context behind the adoption of the law in Singapore, going back to its roots in 16th-century England.
The law – which outlaws “any act of gross indecency with another male person” – was introduced in Singapore in 1938 when it was a British colony.
But the roots of that law lie deeper and it is almost word-for-word a copy of a law from the United Kingdom, said Mr Shanmugam.
This law was passed in 1885, and its own origins are obscure, he added.
He said the Government has not been able to find any background on why the law was introduced, but it did find that the law was introduced at 2.30am, with few MPs present in the British Parliament, as a last-minute amendment to an entirely unrelated Bill meant to protect women and girls and suppress brothels.
It was introduced by an MP named Henry Labouchere, whose motives for doing so are unclear.
There are two schools of thought on the issue in Britain, Mr Shanmugam said – Mr Labouchere had either intended to use the amendment to derail the main Bill or he was personally fiercely homophobic.
Mr Shanmugam also spoke on the legal situation surrounding homosexuality in England at the time, adding that it entered secular law from church law through the Buggery Act as the result of a political struggle at the time.
When the 16th-century English king, Henry VIII, wanted to divorce his first wife, he broke with the Catholic Church in Rome and started the Church of England as the Roman Church would not grant him the divorce.
He wanted to reduce the power of the Church, and one way he did it was by converting many of its laws into secular laws, said Mr Shanmugam.
This and other laws outlawing consensual homosexual acts were reviewed in the UK by a committee appointed in August 1954.
Known as the Wolfenden Committee, it published a report in 1957 that said it was not a function of criminal law to intervene in the private lives of citizens or to seek to enforce any particular pattern of behaviour, Mr Shanmugam said.
The committee said the law must continue to criminalise homosexual behaviour in public and to protect the young and intellectually disabled.
It eventually recommended that private and consensual homosexual acts should not be criminal offences, a position that was debated throughout the 1950s and 1960s as societal attitudes in the UK began to change.
The UK began the process of decriminalising homosexual acts in 1967, completing it in 2003.
Diversity of views on homosexuality around the world
Mr Shanmugam also spoke on the views on homosexuality held around the world, saying it remains a deeply divisive issue.
He said divisions can be seen even in religiously homogenous communities such as the global Anglican Church, adding that some churches in the United States and Canada are supportive of homosexuality, while other churches are not.
He also said that the US is considered more accepting of lesbian, gay, bisexual and transgender (LGBT) people than many other countries, but remains internally split.
Some Republican states such as Florida and Texas still have strong objections to LGBT rights, he said, and many believe that homosexuality is an abnormal lifestyle choice – a view that is espoused by the Republican Party of Texas. But other Republicans disagree.
Mr Shanmugam added: “The challenge is much greater for us in Singapore: We don’t have a single ethnic society, or a single religious denomination.
“It is not a matter that has a straightforward answer, but we will still have to try and find the right way forward for us as a society without tearing up our social fabric.”
He added that globally, there is a general movement even in Asian countries towards the decriminalisation of homosexual sex.
Mr Shanmugam said: “In Singapore, we chart our own path based on what we believe is in our best interests.”
Touching on the debate about the law in 2007 in a review of the Penal Code, Mr Shanmugam said that Singapore society is now at a stage where it can accept a repeal of the law.
He said: “From our engagements, we see that most Singaporeans accept that sex between men should not be a crime.”
He added that the Government has made it clear to foreign governments and companies that these are political, social and moral choices for Singaporeans to decide and they should not interfere.
In August, US politician Nancy Pelosi issued a statement when she was in Singapore asking business groups to support the LGBT community here, in response to which the Ministry of Home Affairs asked foreign businesses to be careful about advocating socially divisive issues in Singapore.
He said: “To US politicians who feel strongly on such issues, they should first try to convince people in Texas and other such places before they issue statements about Singapore.”
MPs raise concerns over cancel culture in discussion of LGBT issues
By Jean Iau, The Straits Times, 28 Nov 2022
The spectre of cancel culture that could come with discussions surrounding lesbian, gay, bisexual and transgender (LGBT) issues was raised by several MPs in Parliament on Monday.
During the debate on the repeal of Section 377A and the amendment to the Constitution to protect the definition of marriage from being challenged in court, Ms Jessica Tan (East Coast GRC), Mr Alex Yam (Marsiling-Yew Tee GRC) and Mr Lim Biow Chuan (Mountbatten) noted that LGBT issues are divisive and asked what measures were in place to protect people from cancel culture.
Ms Tan said she had received feedback from young people and working professionals that while they accept their gay friends and family, they find it difficult to voice their opinions when they do not share their values and ideas, for fear of being labelled, bullied or cancelled in school or at the workplace.
“The fear, real or perceived, is that the repeal of S377A will amplify the activism,” she said.
Cancel culture, or being “cancelled”, is a form of social ostracism which happens mostly online to people who are deemed or proven to have crossed social boundaries.
Mr Yam asked what protections there are to ensure that businesses and institutions, such as religious organisations, are freed from legal challenges regarding teachings and beliefs on marriage.
“For example, if a religious institution declines to conduct a ceremony for a transgender or same-sex couple, will they be subjected to a lawsuit?” he said, asking for clarification from the Government.
Mr Lim said he had received feedback that employees at international organisations or multinational corporations based in Singapore were harassed at their workplaces if they did not support gay people or refused to attend events that support the LGBT community.
He added that organisations, companies and schools must have the scope to allow their employees or students to subscribe to different views on sexuality without being discriminated against.
He also called on the Government to consider making it an offence for anyone to send hate messages or make derogatory comments aimed at intimidating others into keeping silent.
“This law should apply equally to those who are anti-gay and those gays who seek to bully others into silent submission. There should be no space for people to propagate hate messages within Singapore,” he said.
Several MPs urged the public to refrain from labelling and focus instead on having open dialogues among those with opposing views.
Workers’ Party MP Gerald Giam (Aljunied GRC) called for LGBT issues to be treated like religious beliefs, where people who subscribe to one faith do not force their beliefs on others.
He said: “We should not force people to accept one view or another with the risk of being labelled as bigoted or immoral. This is not to say that the issue should not be discussed at all. On the contrary, discussion should be encouraged but as a balanced discussion on different viewpoints, not as a lesson on facts.”
Mr Darryl David (Ang Mo Kio GRC) and Nominated MP Mark Chay said schools in particular should be safe places for students to have respectful conversations and suggested that teachers be trained on how to handle such conversations.
Mr David said: “There could also be instances where students themselves are exploring their own identity, and having trained educators who could help them in this journey of discovery would be important.”
Progress Singapore Party supports repeal of S377A, calls for national referendum on definition of marriage
By Jean Iau, The Straits Times, 28 Nov 2022
The Progress Singapore Party (PSP) supports repealing Section 377A, but believes that the definition of marriage should be decided via a national referendum, said PSP Non-Constituency MP Hazel Poa.
Joining the debate to repeal the law that criminalises sex between men and to amend the Constitution to protect the institution of marriage from court challenges, Ms Poa said many Singaporeans are concerned about the effect the repeal will have on marriage.
“PSP’s position is that the definition of marriage should be decided via a national referendum rather than by Parliament. This will allow the many Singaporeans who have expressed concerns to have a say in this matter,” she added.
Ms Poa was stating PSP’s position on the issue in Parliament for the first time since April, when she had said in response to Home Affairs and Law Minister K. Shanmugam that there was no consensus in the party. She said the party had believed then that this was an issue where it should allow members to hold on to their personal beliefs, and to let society at large determine the right time to change the law.
But following discussions to seek common ground, she said that PSP recognised that while S377A is unfair to the gay community, many fear the effect repealing the law would have on families. The party also recognised the difficulties many faced in reconciling with their religious beliefs.
“Eventually, recognising that S377A is unenforceable, some members were prepared to put aside their personal opinions, and not pursue their objection to the repeal of S377A,” she said. “The willingness to compromise is not a sign of weakness, but instead one of maturity, resilience and community spirit.”
WP MPs take differing positions on repeal of S377A, after Pritam Singh lifts party whip
By Clement Yong, The Straits Times, 28 Nov 2022
Four Workers’ Party (WP) MPs said they would support the repeal of Section 377A, while another three said they would vote against the scrapping of the colonial-era law.
WP MPs came down on both sides of the issue after Leader of the Opposition Pritam Singh lifted the party Whip to allow his MPs to vote according to their conscience.
He said this would let them represent the many Singaporeans who see the matter as one of deep religious belief and conscience.
On Monday, five WP MPs spoke on S377A, which criminalises sex between men. Three of them – Mr Singh, Ms Sylvia Lim and Mr Leon Perera (all Aljunied GRC) – support the repeal, and two – Mr Gerald Giam (Aljunied GRC) and Mr Dennis Tan (Hougang) – have voiced their opposition to it.
Another two, Mr Faisal Manap (Aljunied GRC) and Mr Louis Chua (Sengkang GRC), could not be in Parliament on Monday because of Covid-19. Mr Faisal is voting against the repeal as a matter of religion and conscience, while Mr Chua supports the repeal.
Mr Singh said during the debate in Parliament that the WP had neither taken up the cause of the lesbian, gay, bisexual, transgender and queer (LGBTQ+) community, nor stood against it in previous years, as the party believes the community should not be exploited for political points.
Politicians should not be seen siding with particular groups on issues of great social division and contending values, he said.
Ms Lim, the WP chairman, said she supports the repeal of S377A but will abstain on the constitutional amendment to protect Parliament’s right to define marriage, as she is concerned that doing so would exclude judicial scrutiny on this topic.
It is the job of the courts to assess if laws are constitutional, said Ms Lim. “It is not the same thing to say that the courts are intervening in a political sphere when they are doing their constitutional duty.”
She recognised that some fundamental liberties in the Constitution have been qualified, but said these tend to be “scoped very tightly and justified on the grounds of national emergencies, security, public order and public health”.
Mr Tan and Mr Giam both said they were guided by their conscience and faith in voting against repeal, with Mr Tan saying it was “the most difficult speech I have to make to date”.
They both support the constitutional amendment to better protect families, while noting Ms Lim’s reservations. Mr Tan said: “If the repeal were to proceed without the proposed constitutional amendments, those who have reservations about the repeal may be even more concerned that there will be no other enhancement in law to address their concerns.”
Mr Perera, who supports repeal, said the law has no place to intervene in private behaviour among consenting adults.
S377A, which is not enforced, has become a symbolic marker, but such markers are not written into Singapore’s laws for other issues of importance, he said.
There are other, better ways to register views on matter of conscience, outside the realm of laws and criminal penalties, he added.
In his speech during the debate, Mr Singh noted that the People’s Action Party has elected not to lift its Whip. This means that its MPs will have to vote according to the party’s position.
“Given the varied public opinion on the impending repeal of S377A, there is a risk that the democratic value of Parliament could be diluted if the views of Singaporeans on this subject are not adequately ventilated in this House,” he said.
Mr Singh added that while he understood the compromise struck in 2007 to retain S377A without actively enforcing the law, doing so undermined the sense of belonging of Singapore’s LGBTQ+ community.
While it was not enforced, the law’s symbolic message that those who identify as LGBTQ+ are outsiders should not be underestimated, he added.
Keeping this stance indefinitely would only “shine an ever-brighter spotlight on the issue”, particularly as social mores in Singapore and around the world steadily shift towards greater acceptance of LGBTQ+ individuals, he said.
Mr Singh said he still believes that had the WP openly supported repeal earlier, it would not have been good for Singapore politics. “More crucially, it would have not served the interests of the LGBTQ+ community.”
He added: “My personal belief is that the repeal of S377A does not, in any way, signal the state’s hostility towards the family unit or religious freedom.” Neither does repeal signal that Singapore is becoming a more liberal or permissive society, he said.
“What it does is make room in our shared public space, for members of our common Singaporean family to not be discriminated against due to their sexual orientation.”
Amid debate on polarising issue of repeal of S377A, a call to come together as a nation
Members of the House call for unity, understanding and moderation, even if the decision may be a personally difficult one.
By Grace Ho, Insight Editor, The Straits Times, 28 Nov 2022
Given how contentious the issue of Section 377A is, it wasn’t surprising that Monday’s debate on a Bill repealing the law that criminalises sex between men – and another Bill amending the Constitution to protect the definition of marriage from legal challenges – went on for over six hours, with more to come on Tuesday.
There was one notable difference in approach: The ruling People’s Action Party (PAP) did not lift the Whip for its Members to vote according to their conscience, but the Workers’ Party (WP) did.
WP chief Pritam Singh explained – albeit, in my view, a tad too expediently – that this was because of the risk that Parliament’s democratic value could be diluted if the varied views of Singaporeans on the subject, many of whom view it through a religious lens, are not adequately ventilated in the House.
On the other hand, Deputy Prime Minister Lawrence Wong had explained in an earlier interview that the matter is one of public policy, and the Government is repealing a law that the courts have already said is not going to be enforced.
Mr Wong had also said that the definition of marriage, as being between a man and woman, will not change under his watch, should the ruling PAP be re-elected at the next general election.
The debate was a measured affair. While agreement was not unanimous – Mr Dennis Tan (Hougang) opposed the Penal Code (Amendment) Bill, as did Mr Gerald Giam (Aljunied GRC) – the House was conscious of the weight of its responsibility in striking a balanced tone and setting an example for all Singaporeans.
Members cautioned against taking extreme positions and stirring discord. Many sought assurance that Singaporeans would not be cancelled in schools and workplaces because of their beliefs.
Ms Jessica Tan (East Coast GRC) asked what measures would be in place to protect people from discriminatory pressures, cancel culture and bullying – a concern shared by Mr Lim Biow Chuan (Mountbatten).
Mr Alex Yam (Marsiling-Yew Tee GRC) asked what protections there would be to ensure that non-government entities won’t be taken to court for their teachings and beliefs on marriage, for example, when a religious institution declines to conduct a blessing or ceremony for a same-sex or transgender couple.
Other MPs called for more trained educators to support students who are exploring their own identities, while stressing that this is not a gateway for schools to promote lesbian, gay, bisexual, transgender and queer (LGBTQ) lifestyles.
Mr Darryl David (Ang Mo Kio GRC) said schools must be safe places for students to engage in respectful conversation, while Mr Zhulkarnain Abdul Rahim (Chua Chu Kang GRC) asked if there are plans to better equip parents and educators. These can include providing faith or value-based support where available.
Schools should remain neutral on the issue, said Mr Henry Kwek (Kebun Baru). He added that because a minority of young people experience fluidity in gender self-identification, if the issue becomes polarised, it can rob them of the opportunity to do an authentic self-evaluation.
Some Members used the opportunity to spark a larger conversation about equality and inclusivity beyond the LGBTQ community.
Nominated MP Mark Chay suggested a government-wide policy review so that those who are not married can be actively considered part of the policymaking process. Policies, he noted, should protect the rights of those who do not fit squarely into the definition of the traditional family unit, and this includes single parents.
Echoing Mr Chay, Ms Cheryl Chan (East Coast GRC) pointed out that housing demands come from many groups besides those with a family nucleus, such as singles and lone seniors. Yet, their applications are currently either limited by conditions or considered on a case by case basis, which raises the question of fairness.
Among Members who supported the repeal of S377A, several chose distinctly different approaches. Non-Constituency MP Hazel Poa stated the Progress Singapore Party’s position that the definition of marriage should be decided via a national referendum rather than by Parliament.
WP chairman Sylvia Lim supported the repeal, but abstained from voting on the constitutional amendment. She clarified that she was not advocating for gay marriage, and her concern was purely about whether it is justified to exclude judicial scrutiny on this topic.
“From a governance standpoint, I find this position very difficult to accept,” she said. “Will the Government, present or future, come up with other areas of life, where the courts are to be excluded from reviewing laws and policies for constitutionality?’‘
The overall mood of the House was introspective, at times personally conflicted.
From Mr Christopher de Souza and Dr Vivian Balakrishnan (both Holland-Bukit Timah GRC), to Messrs Yam, Lim, Giam and Tan, they spoke of finding the decision deeply difficult in the light of their religious convictions, even as they acknowledged the pain that the LGBTQ community has suffered.
Some were honest about their own past behaviour towards LGBTQ schoolmates. Dr Balakrishnan said: “If many of us think back to our school days, I think we all fell short. I will confess to having fallen short, and for that, I apologise to my gay friends.”
But personal conflict aside, it’s important to circle back to the nub of the issue which Home Affairs and Law Minister K. Shanmugam highlighted in Parliament on Monday: Consensual sex between adult men does not raise concerns about law and order, and hence should not be looked at as a criminal issue. This is the right thing to do, and society is more ready now for the repeal.
“To a gay person, even if S377A is not enforced, it is there: Memorialised in law, a sword hanging over his head, a daily reminder that every time he engages in private sexual activity, behind closed doors in the sanctity of his bedroom, he is nevertheless a criminal,” he said.
“We have to ask: Is it fair that gays have to live in this way? This is not something that we should accept, even if we personally disagree with homosexuality.”
Mr Shanmugam also noted the significant risk that courts may strike down the law in the future, if Parliament leaves it alone and does nothing.
He said: “Court processes are adversarial by nature. Their decisions are binary – it is a zero-sum game; you either win or you lose. There is no middle ground, no balancing of competing interests. The courts cannot consider competing social norms and social consequences of their decisions.”
On the issue of whether to enshrine the definition of marriage in the Constitution, Minister for Social and Family Development Masagos Zulkifli said that while the institution of marriage and family are the bedrock of society, to elevate marriage to the same level as fundamental rights would fundamentally change the whole complexion and schema of the Constitution.
He pointed out that this isn’t unique to the institution of marriage and family. There are many other important laws and principles that are not in the Constitution but are in Acts of Parliament, such as national service, corruption, zero tolerance of drugs and home ownership.
It would be naive to think that the issue is closed once the House debate concludes. But I would venture to say that most Singaporeans, especially at a time when there are more pressing cost-of-living issues to deal with, don’t wish to see further skirmishes over what has become a wedge issue in other countries.
On the subject of wedge issues, I found comfort in a statement put out by the Methodist Church in August, part of which reads like this: “We do not expect God to save the world through our human reason, our pursuit of justice, our struggle for human rights, or even by our best efforts to order the world for the better, important as they are.
“While we live in the world, we submit to the God-given authority bestowed on a legitimate government, for the ways of judgment. We will not project our hopes for public life upon the world by sheer force of will, or by drowning out other voices in the public square.”
Even if one does not believe in a god, there’s something to be said for treating others with kindness, and realistically appraising what it means to be a citizen of the world in all its diversity, despair, brokenness and hope. I share the hope of Mr de Souza, who said: “My prayer is that we will not be torn apart by discord, but instead stay united as one nation.”
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Opening Speech by Minister Masagos Zulkifli for Second Reading Of Constitutional Amendment -28 November 2022
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