Thursday, 25 August 2022

Singapore moves to repeal Section 377A

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announced at the National Day Rally that Section 377A of the Penal Code, which criminalises sex between men, would be repealed.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.



"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."











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.


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.







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