How Should the Government Move on 377A

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Give-and-Take Approach 

In debates over contentious moral issues, the Singapore Government has increasingly adopted a “give-and-take” approach in order to balance the concerns of different groups over its policy moves, after holding consultations with various stakeholders. Such an approach usually involves dialogues, assurances, and concrete legal or policy moves with the aim that no one feels like it is a “zero-sum” or “win-lose” game in the context of the entire issue. 

Three examples serve to highlight such an approach. 

Transexual Marriage 

In Singapore, a person who has undergone sex reassignment surgery can be legally recognised as the opposite sex on that person’s NRIC. The Registry of Marriages (ROM) has typically determined the sex of the parties intending to be married by reference to their NRICs.

In 1991, the Singapore High Court invalidated the marriage between a post-operative (female-to-male) transexual on the basis that it was not the voluntary union of one man and one woman. The court rejected ROM’s practice of determining the sex of the parties on the basis of their NRICs, and took the position that one’s birth certificate should be used also. 

In 1996, Parliament reversed the High Court decision by amending the Women’s Charter so that ROM could determine the sex of the parties by referring to their NRICs, clearly legalising transexual marriages. It did so “after much discussion and deliberation with several parties”, noting the implications on “moral, cultural and religious values”.

At the same time, Parliament sought to assuage concerns by introducing clear language to prohibit same-sex marriages: “A marriage solemnised in Singapore or elsewhere between persons who, at the date of the marriage, are not respectively male and female is void.”

Then-Minister for Community Development Abdullah Tarmugi further clarified in his speech that the amendments were “not a move to encourage or promote lesbianism, homosexuality, transvestism or sex reassignment among our people”, but instead to seek “a practical and humane approach to address the problems faced by [transexuals] and the families they have set up”.

Casinos

A similar approach was taken in relation to the Integrated Resorts (IRs), which was controversial even amongst the various Ministers and the Members of Parliament (MPs). Social workers, religious groups, family-based voluntary welfare organisations (VWOs) and others were clear in their opposition to the casinos, citing the various social harms that would be caused by gambling. 

After extensive study and consultation, the Government decided to proceed with the IRs, while at the same time seeking to limit the negative social impact of the casinos. During the debates in Parliament in 2004, there remained many different views that were expressed on the issue.

To address the concerns, the Government put in place a set of “comprehensive measures” to minimise the social impact of casino gambling: 

  • Admission of locals was restricted, 
  • There was a system of exclusions (e.g. for those in financial distress or receiving social assistance, or exclusion of self or family members)
  • Casinos will not be allowed to extend credit to locals
  • The IRs will similarly channel revenue collected from the entrance fee to the Totalisator Board for charitable purposes
  • A national framework to address problem gambling was set up, which included the National Council on Problem Gambling

The Government sought to make the IRs a “plus” for Singapore on the whole, by – the words of Prime Minister Lee Hsien Loong – “bringing in more tourists, creating more jobs, and teaching Singaporeans about the risks and follies of gambling”.

Amicable Divorce

The final and most recent example of such a “give-and-take” approach is the issue of “amicable divorce” and its impact on the institution of marriage. 

In 1979, there was a draft provision in a Bill amending the Women’s Charter to allow couples to dissolve their marriage by “mutual consent” without any pre-conditions being fulfilled. This “no-fault” divorce provision was controversial, and was ultimately deleted because it was felt that Singapore’s divorce law “should not make it easy for a couple to terminate their marriage without first making an effort to overcome their difficulties”.

More than 40 years later, in 2021, the Ministry of Social and Family Development (MSF) held a public consultation “to better understand how to support those undergoing divorce and their children, and how to reduce acrimony in the divorce process”. The “amicable divorce” option was the third proposal in the Consultation Paper, and was presented alongside two other proposals which were far less controversial in nature. 

The first proposal was to provide more support to children affected by divorce by having all parents of children under 21 attend a programme so they understand the impact of the divorce on them and their children. It also proposed that all children under 21 whose parents are undergoing divorce should attend programmes to help them cope better with the divorce.

The second proposal was to enhance support for couples undergoing divorce, including counseling for those who are unsure about divorce and want to save their marriages; counseling before, during, and after the divorce process, and mediation.

When the Bill to legalise “divorce by mutual agreement” (DMA) was laid before Parliament, the Government took pains to emphasise that DMA “will not lead to a quick and easy divorce” because of various safeguards. These include requirements that the parties must explain the reasons leading them to conclude that their marriage has broken down irretrievably, and to allow the court to reject the agreement if there remains a reasonable possibility that parties might reconcile. 

At the same time, the Government sought to strengthen the institution of marriage by introducing a slew of measures to enhance the marriage process and strengthen safeguards to protect the institution of marriage, such as mentorship for young couples.

What the Government is Likely to Do with 377A

So, suppose a day comes when the Government intends to repeal Section 377A. What is it likely to do?

As predicted, they began by holding extensive consultations with various groups, in closed-door dialogues. These included religious groups, LGBTQ+ advocacy groups, social workers, family-based VWOs, and other individuals.

Presumably, the Government first engaged in a process of canvassing opinions before conveying its intention to repeal Section 377A at such dialogues, pointing to the shifts in the moral views of Singaporeans. At the same time, it would have reiterated its commitment to heterosexual marriage and the traditional family unit, while adding that there should be space for LGBTQ+ persons to live within Singapore society.

During the consultative period the Government may invite legal or policy proposals as well.

Ideally, it would present certain concrete legal or policy proposals (including the repeal of Section 377A) to the various groups in closed-door dialogues, before presenting the proposals for public consultation. The goal is to create a comprehensive political package with something that may satisfy the interests of the different individuals and groups, while making a small, gradual and incremental change.

Drawing toward the close of the period of deliberation, the Government traditionally prepares the ground via doorstops, interviews and the press. We’ve begun to see this already. This may include general comments around the contours of a possible package at the National Day Rally without firmly committing to a position.

Once the comprehensive political package (including the repeal of Section 377A) is ready in the form of a White Paper, the matter will go before Parliament, where the Government will once again explain the rationale for its decision and its various commitments as a matter of law and policy.

Debate will ensue and the matter will be put to a vote. If the whip is lifted, members of Parliament will be able to represent the voice of the people and vote according to their conscience on the matter.

What Should Various Groups Do?

If the above analysis of our Regardless Team is correct, what should various groups do? 

1. Firstly, it would not be sufficient or helpful for groups on any side of the debate over Section 377A to simply insist on keeping or repealing Section 377A (without more). It is important to articulate the reasons for keeping or repealing Section 377A and underlying concerns concerning the law. The opportunity to bring these reasons to members of parliament is open up till the point where the matter is to be decided upon by parliamentary vote.

2. Secondly, all sides of the issue should be willing to provide concrete legal or policy proposals to meet the legitimate interests and needs not only of their own group, but also of those whose views are opposed to theirs. A conservative group should consider, for example, how society should address situations where LGBTQ+ persons are rejected by their families and communities. An LGBTQ+ group should consider, for example, how society should address the concerns of parents who wish to raise their children in environments free from the reach of LGBT political messaging around marriage and family.

3. Finally and most importantly, everyone should reject an “us versus them”, “zero sum game” or “win-lose” mentality. While individuals and groups may have different views on LGBTQ+ issues, it is important to emphasise our common humanity and common identity as Singaporeans.

Ultimately, issues relating to Section 377A are not merely about a law criminalising homosexual acts. Chief Justice Sundaresh Menon, delivering the judgment on behalf of the Court of Appeal, summarised it thus.

“Section 377A has long been a lightning rod for polarisation, in large part because it raises a wider question, which admits of no ready answers, of how a State can best maintain harmony between different communities with deeply held, and sometimes conflicting, views on important issues of moral conscience. As the socio-political debate over [Section] 377A continues, the balance between various interests in society grows more delicate, and the need to create space for peaceful co-existence too becomes more pressing.”

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