8 Things To Ponder Concerning Govt’s Announcement To Repeal S377A

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On 21 August 2022, Prime Minister Lee gave his annual National Day Rally (NDR) speech. As usual, the nation expected to hear a whole slate of important announcements covering various economic and social aspects of our society. This year, the announcement to repeal Section 377A of the penal code has stolen the thunder and perhaps come as a shock to many.

For the uninitiated, S377A reads:

“Any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to 2 years.”

Here’s a quick overview of recent developments concerning S377A:

This announcement is the latest and perhaps final development of the S377A issue in Singapore. It should not be treated lightly by Singaporeans because of the effects of emboldened activism and unmitigated consequences flowing from the repeal.

Here are 8 things to consider about what PM Lee said during his announcement to repeal S377A:

1. How come PM Lee announced a repeal before robust Parliamentary debate on the matter?

This is perhaps the biggest shocker. Members of the public have yet to hear any public debate about the pros and cons of repealing or retaining S377A from Parliament. We are being deprived of a robust Parliamentary debate where Members of Parliament (MPs) from various parties would have been able to debate the merits and demerits of repeal, and represent the voice of their constituents on the matter.

Instead, we have been told that the whip will not be lifted since this is a “matter of public policy” and “collective responsibility”. One wonders what use it is for citizens to take the effort to speak with their MPs when the party can unilaterally decide to deny Members of Parliament the freedom to represent the voice of the people in a vote where conscience reasonably plays a significant role.

While the Government has clearly conducted rounds of closed-door discussions, Singaporeans who have yet to participate in any of these discussions are hearing this development for the first time. In our view, the debate concerning S377A would have made a great topic for the ForwardSG exercise to hear from the people in Singapore.

Perhaps people anticipated the Government to move on S377A, but were they expecting a repeal to be announced just like this?

2. Is repealing S377A the same as “the tudung issue”?

This is a throwback to the 2021 NDR where PM Lee announced that female Muslim uniformed workers across the public health sector would be allowed to wear tudung at work if they chose to. Interestingly, in this year’s NDR, PM Lee decided to compare the decision to repeal S377A to the above decision.

Are male homosexual sex acts comparable to religious dressing? While both issues are said to be sensitive, are they sensitive for the same reasons? We don’t think so.

The donning of tudung is a matter of personal religious expression. It has no bearing on public morality or health. The same cannot be said for male homosexual sex acts which a large majority of Singaporeans (religious and non-religious) consider immoral. Furthermore, male homosexual sex acts like anal sex are well known high-risk sexual activities which could harm both the individuals indulging in it and society’s public health.

Furthermore, the nature of public feedback around the tudung issue was very different from LGBTQ activism. The tudung issue was narrowly an issue within the Malay Muslim community and received almost no pushback from the larger society when advocated for. In contrast, at the heart of the S377A issue, is militant LGBTQ activism, which has wider social implications and people are beginning to share their concerns about it.

3. Doesn’t the existing compromise on S377A already accommodate both gay people in Singapore and the traditional mores of our society?

Based on the conclusion of the 2007 Parliamentary debate involving S377A, the “untidy” compromise has already been struck to ensure that S377A would not be actively enforced.

This position has been further established as in Feb 2022, the Court of Appeals declared S377A unenforceable in its entirety, effectively making it not a threat to any gay man by removing the possibility of it being enforced. Untidy as it may be, what Singapore presently enjoys is a stable equilibrium since nobody has standing to challenge S377A in the courts.

Gay men today no longer need to live in fear because of S377A. But repealing S377A sends a signal that homosexual acts are now “normal” and accepted by all of society, contrary to a past national survey where 63.6% felt “sexual relations between two adults of the same sex” was “always/almost always wrong”.

Although the government has signalled that society will not change, what of the social dynamics of LGBT activism that law and policy does not account for? How would other policies be affected by such a signal through repeal? This ought to be thoroughly investigated and debated in Parliament before a conclusion on the matter of S377A.

4. Is “the Government should not intervene with what consenting adults do in private” a good reason to repeal any law?

PM Lee said, “what consenting adults do in private is their personal affair, and the Government should not intervene.”

Can we think of anything that is “private” and “between consenting adults” which are also currently subject to Government or legal intervention? For starters: incest between adult family members, drug consumption and private sales of drugs. Furthermore, the non-consummation of your marriage may make it voidable under Section 106, and the Human Organ Transplant Act makes it illegal for you to sell your own liver to someone else.

If this reasoning is accepted to justify the repeal of S377A, should it not also apply to repealing laws concerning incest, drug consumption and its sales etc.? Regulation of consensual private acts, sexual or otherwise is also not extraordinary but rather is commonplace and done for many reasons.

If the Government truly accepts that regulation of private, consensual acts is inherently morally wrong, it will have to take a close look at the multitude of other laws and policies that do in fact regulate such acts.

5. What exactly does “move to amend the Constitution in tandem to protect the definition of marriage from being challenged constitutionally in the courts” mean?

This is a carefully worded statement and should NOT be confused with “enshrining the definition of man-woman marriage into the Constitution”. This was clarified by Minister Shanmugam a day after the 2022 NDR when he 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.”

In a previous article, Regardless discussed possible amendments to the Constitution which could be considered as “moves to protect the existing definition of marriage.” You can read it here.

PM Lee’s announcement and Minister Shanmugam’s clarification confirmed that the Government is not looking to protect the definition of marriage as between a man and woman only by enshrining it into the Constitution.

By “amending the Constitution”, the Government is most likely going to simply add a provisional clause to make the existing definition of marriage in the Women’s Charter and Interpretation Act immune to court challenges based on constitutionality (similar to how S377A is being challenged over the past decade).

What is the difference? Significant.

PM Lee’s proposal simply shields the definition of marriage from challenges in court. It does nothing to improve the standing and prevent a redefinition of marriage via the Parliament.

Enshrining the definition in the Constitution would make a big difference. Doing so will not only shield it from challenges in court, it also significantly improves its standing by making it much harder to redefine. If marriage is enshrined in the Constitution, instead of a decision by a simple majority (half of Parliament), a super majority (two-thirds of Parliament) will be required to redefine marriage.

But currently, as announced by PM Lee, the Government intends to only protect the definition of marriage from court challenges, and Parliament will reserve the right to amend this definition in future if a new definition can pass a simple majority vote among the MPs. The effect is to empower Parliament rather than protect marriage per-se. Secondarily, it makes the protection of heterosexual marriage an election promise which locks conservative Singaporeans into voting for the PAP should opposition parties be emboldened to run on a pro-same-sex marriage platform.

6. Could the proposal to amend the Constitution inadvertently send the wrong message about the Interpretation Act and Women’s Charter?

Even if the Government thinks that amending the Constitution to shield the definition of marriage from constitutional challenges, rather than enshrining the definition of marriage in the constitution outright, will protect the definition of marriage, this move could backfire.

Trying to shield the definition of marriage (and any policy based on that definition) from a constitutional challenge (either on the basis of Article 12 or any other constitutional right) may inadvertently send the wrong message—that the existing definition is indeed unconstitutional or cannot withstand legal challenge at the moment. At least from a political point of view, it suggests that the existing definition of man-woman marriage is unequal and discriminatory. It cannot be, since marriage as a human institution is by definition, heterosexual in nature. Yet, could this misunderstanding be an unintended message that the Government might end up sending with such a ‘shielding’ move?

Yet, if we were to give credence to the argument that the definition could have been deemed unconstitutional by an activist court acting on jurisprudence hitherto unseen in Singapore, then should we not move to directly enshrine the definition of marriage into the Constitution since direct enshrinement will achieve the goal of upholding pro-family values in Singapore without sending a mixed or unintended message about the ‘unconstitutionality’ of pro-family policies and positions in Singapore.

In other words, “If it ain’t broken, don’t fix it”. And if the intention is to genuinely protect the institution of Marriage from novel constitutional challenges and a future, activist court, then the sincere and responsible thing to do would be to place a positive definition of marriage into the Constitution just as other nations have, being cognisant of the shortfalls of merely ‘shielding’ the Woman’s Charter.

7. What “unintended” consequences could a repeal of S377A bring?

One possible “unintended” consequence of repeal is an impact on sexuality education in public schools. The Ministry of Education (MOE) has stepped up to clarify that “education policies and school curriculum will remain anchored on Singapore’s prevailing family values and social norms”. It is, however, unclear how this is going to be done.

The current syllabus stated on the Ministry of Education’s website states:

“Sexuality Education teaches students what homosexuality is, the importance of respect and empathy, and the law concerning homosexual acts in Singapore.”

In a post-repeal S377A Singapore, this line would have to read:

“Sexuality Education teaches students what homosexuality is, the importance of respect and empathy.”

The above could be a reality due to the fact that there is no definitive proscription against homosexual acts in Singapore after repealing S377A. Even with MOE’s latest announcement, there is no mention of what is to happen for the above statement about the programme.

What will MOE do to prevent the normalisation of homosexuality through sexuality education in public schools? Beyond teaching “family as the cornerstone of our social fabric, and marriage between a man and a woman,” our students need to understand the difference between homosexuality and heterosexuality (and by extension, common sex acts and their associated risks).

MOE must also stand firm and state facts as they are for the sake of our younger generation and the nation’s public health. Facts about the risks of homosexual sex acts must be able to be shared in schools, not to be wrongly branded “discriminatory” and muted.

The act of repealing S377A sends a strong signal to the rest of society, especially those that trust the Government to do what is right. Most people have not had the time to read up on these matters and heavily rely on the Government to preserve what is good. More than simply reflecting social mores, the repeal itself is likely to influence social mores, especially from Singaporeans that have trusted the Government to provide moral leadership and signalling.

8. Are LGBTQ activists appeased with the repeal? Will they really not challenge the definition of marriage in the near future?

“For Oogachaga and, to the best of our knowledge, others in the local LGBTQ community, there are no immediate plans to mount legal challenges to redefine marriage as it presently stands in the Women’s Charter.” How believable is this statement?

Quoting PM Lee in this NDR:

“Among those with reservations, some feel strongly about s377A itself. But for most, their main worry is what they feel s377A stands for, and what they fear repealing it may quickly lead to. They also worry that this may encourage more aggressive and divisive activism on all sides.”

Immediately after the announcement of the repeal of S377A, several LGBTQ activists took to social media to express their blatant dismay at an attempt to shield the definition of marriage from legal challenges (see screenshots below).

Will LGBTQ activists be appeased with the repeal? No. Have they instead become emboldened to push for further changes in society? Most definitely. What safeguards need to be in place in light of the wave of LGBTQ activism to come? Is Deputy Prime Minister Lawrence Wong’s assurance sufficient to keep the definition of marriage intact?

Organisers of the Protect Singapore Townhall have prepared a report which highlights (non-exhaustively) areas to be safeguarded.

So, in light of these things to ponder, what are your thoughts about the announcement at NDR to repeal S377A?

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