Parliament: Repeal of Section 377A

Introduction

Mr Speaker, beyond the bread-and-butter matters of economics and material well-being, Singaporeans must occasionally confront issues that concern our collective values – how we see each other as a citizen community and what kind of place we want Singapore to be.

Section 377A of the Penal Code – which I will henceforth refer to as 377A – that criminalises homosexual conduct in private, is such an issue. For some Singaporeans, it is a very difficult subject. For others, especially younger Singaporeans, they wonder why it has to be a difficult subject and why people of a different sexual orientation cannot be treated as equal Singaporeans.

In recent years, the issue has caused growing tensions between groups who identify themselves for and against the repeal of section 377A. Singaporeans have formed organisations and groups on the issue. At the personal level, the conversations can be uncomfortable and discussing the subject without measure and consideration can quickly pull people apart.

Lifting the Whip

Speaking in their individual capacities, the Workers’ Party Members of Parliament (MPs) have different views on the repeal of section 377A. In normal circumstances, I would not lift the whip for Parliamentary debates, given the party political structure that overlays elected MPs in this House. However, 377A is unique in that it is conceived through a religious lens by many in Singapore, in addition to being a matter of conscience for a no less significant number.

The People’s Action Party has announced that it is not lifting the whip for this debate. Given the very public opinion on the impending repeal of 377A, there is a risk that the democratic value of the Parliament could be diluted if the views of Singaporeans on this subject are not adequately ventilated in the House. 

Not lifting the whip would deny Workers’ Party MPs not in favour of a repeal of 377A 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. 

So, I have decided to lift the whip for the Workers’ Party MPs. In doing so, I have also asked all who will speak to carefully reflect on the position they take and to envision a set of principles or perspectives from which society as a whole, with its different views, can move forward. That is the challenge. We know society is divided on 377A. How can we mitigate this and contribute to lowering temperatures and ensuring Singapore is a home for everyone?

For the record, Mr Speaker, both MPs Muhamad Faisal bin Abdul Manap and Chua Kheng Wee Louis are not present for this debate as they are COVID-19 positive. Mr Faisal disagrees with the repeal of 377A as a matter of religion and conscience while Mr Chua agrees to the repeal. The other Workers’ Party MPs will state their positions on the matter in the course of their speeches.

WP on 377A

Mr Speaker, since 2007, the Government has settled on what was called an uneasy compromise – that 377A would be kept on the books but not enforced. In 2019, in my first term as Secretary-General of the Workers’ Party, I stated the Workers’ Party’s position on 377A in a speech to the National University of Singapore Political Association. The party position I advanced was similar to that of Singapore as a whole – it was varied and diverse, with no consensus as to whether 377A should be repealed. 

The depth of the impasse in Singapore society at that time was stark and encapsulated somewhat in a panel discussion between Senior Minister Tharman Shanmugaratnam and Prof Tommy Koh on the Institute of Policy Studies’ 30th anniversary in late 2018. Prof Koh said, “A mutual friend of ours was recently invited by one of our religious organisations to speak at a conference on a secular topic. He accepted, prepared the paper and then he was disinvited. Why was he disinvited? Because he signed the petition to repeal 377A.” Such has been the divisiveness over 377A.

In my 2019 speech, I said that the LGBTQ+ community should not be exploited for political points. At that time, I believe there was more to consider than deciding which was the right side in this matter, particularly in a society which generally eschews from posting open and frank conversations on difficult matters in the public realm. Against this political culture and background, the Workers’ Party neither took up the cause of LGBTQ+ rights, nor stood against it.

I still believe that had the Workers’ Party openly supported a repeal of 377A, it would not have been good for Singapore politics. More crucially, it would have not served the interest of the LGBTQ+ community. On issues of great social division and contending values, we do not need politicians to be seen as siding with particular groups.

What the repeal of 377A entails?

From my vantage point as the Leader of the Opposition, my personal belief is that the repeal of 377A does not in any way signal the state’s hostility towards the family unit or religious freedom. Rest assured, the family remains and, I dare say, will always be at the core of our social norms.

I would also like to reiterate that defending the Singaporean family also means doing more to protect its different forms, including families with single, widowed and divorced mothers and fathers. We must do more to help caregivers who perform the labour of caring for aged parents and those with special needs.

What the repeal of 377A certainly does not signal is Singapore becoming a more liberal or permissive society. 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.

Religious Singaporeans are free to maintain their beliefs about homosexuality, but this should not interfere with what is legal in our public sphere. Likewise, supporters of repeal have no business interfering with the private beliefs of religious Singaporeans. 

In any secular society, sin and crime are separate categories. They may sometimes align. For example, we have laws prohibiting crimes such as murder that are also considered wrong in many belief systems. But we also do not outlaw many activities considered sinful in some religious communities. Consuming alcohol and pork are legal but not permissible to Muslims. There are also no laws against eating meat, though this is not an option for Jains and some Hindus and Buddhists.

One may argue that 377A is much more complex – that not regulating sexual practices has greater social consequences. But let us remember that when section 377A of the Penal Code was amended in 2007, it decriminalised other sex acts that some still find unorthodox. In singling homosexuality between men in particular, the decision to keep 377A appears to the LGBTQ+ community and not a small number of Singaporeans, to be unjust and unequal.

An important reality is that the political compromise in place since 2007 undermined the sense of belonging of Singapore’s LGBTQ+ community. Though unenforced, one should not underestimate its symbolic message that they are outsiders. Additionally, this so-called compromise is not binding on future governments who could choose to enforce the law.

Yet, repealing 377A will no doubt cause anxiety, if not outrage, amongst Singaporeans who believe that our laws must also reflect cultural or religious attitudes towards homosexuality. There are Singaporeans who see this as an erosion of the family as a basic unit of Singapore society. The reality of our political culture, which leans towards conservatism on social issues, is that such concerns cannot be summarily ignored or dismissed.

In the main, the Court of Appeal judgment in Tan Seng Kee vs Attorney-General appears to have precipitated the Government’s decision to repeal 377A. But the stark reality before this House and Singaporeans today is that there were never any good options before the Government that could please everybody with regard to managing the tensions of 377A.

Keeping to the status quo indefinitely would only shine an ever brighter spotlight on the issue, particularly as social mores regionally and locally continue a steady shift towards greater acceptance and accommodation of LGBTQ+ individuals. 

Like many Singaporeans, I could understand why the uneasy compromise set out by the Prime Minister in 2007 was deemed to be a midpoint that would keep any excessive social cleavage in check. Likewise, I see the decision to protect marriage from constitutional challenge as an institution between man and woman only, through a very narrow lens. It also represents a balancing exercise to ensure that society does not fray over the decision to repeal 377A.

I hope Singaporeans who are against the repeal of 377A approach this issue – in spite of their personal beliefs and religious convictions, which I and my colleagues respect, and I suggest everyone in this House respects – through this lens of compromise and accommodation. In repealing 377A, religious Singaporeans are not asked to endorse homosexuality but instead honour the equality of all Singaporeans in the eyes of the law – that no consenting adult should be regarded as criminals because of what they do in private.

Equality and justice, both stars in our flag, are plenty and bountiful. Unlike finite resources, we do not have less of either by extending it to our fellow citizens. We all gain from a more just and equal society.

We can also look to some of the timeless principles shared amongst all great faiths. The blessed irony here is that religion plays a huge part in inspiring our best qualities as human beings – to be generous, to love our neighbour, to be merciful. These qualities do not weaken but strengthen our faith.

Wherever you stand on this decision, I hope Singaporeans approach our LGBTQ+ community, who are a small minority of the population, like they are anywhere in the world, with these qualities in mind. More than ever, with the impending repeal of 377A, Singaporeans on all sides must come together in good faith and mutual trust to not let this issue further tear our social fabric.

I am certain the decision of this House is not a panacea that repairs the tension between camps. We should anticipate that new battle lines will be drawn. For the LGBTQ+ community, the march towards greater equality has not ended. Some conservatives are likely to mobilise to try and stop any further expansion of LGBTQ+ rights. 

Looking Ahead

In view of the socially divisive nature of 377A, I would suggest three points that could help in keeping things from boiling over. I hope Singaporeans can consider these as guideposts should they deem them useful.

First, any conversation must recognise that there is a distinction between public and private perspectives. Just because one group has a position on an issue does not mean it can impose that position as a public expectation on everyone else.

Why? Because in Singapore, there must be a place for everyone. The public space is for all to share and where we encourage a “live and let live”, “give and take” attitude towards our fellow Singaporeans. The public space is where we create conditions for all Singaporeans to succeed and certainly, not to feel marginalised. The public space is where we are tolerant of Singaporeans who are different, insofar as the law allows.

Second, the fact that we are a secular society does not stop religious Singaporeans from holding views that are reflective of their religious norms and values. It is fully understandable that the faithful wish to propagate their religious convictions. There is no basis for us to feel cancelled, provided our views are not set as an expectation for all society. There must be a secular approach to politics and governance, even as we celebrate and protect the freedom of religion in Singapore. The Workers’ Party cannot conceive of any other way for different groups and religious communities to live harmoniously with each other in Singapore.

Finally and perhaps most pertinently, as we are free to share our views and propagate our beliefs, let us be thoughtful and put ourselves in the other person’s shoes as we welcome conversation and even vigorous debate. But as with most difficult conversations in search of a landing point, it will be crucial to adopt a gentler tone and enlightened perspective that extends and considers the impact on broader community and society, and most fundamentally, a spirit of empathy.

Mr Speaker, I support both the Penal Code and Constitution amendment Bills.

Clarifications

Mr Pritam Singh (Aljunied): Thank you, Mr Speaker. I think the Minister – I refer to Minister Shanmugam – has mischaracterised my speech somewhat. What I said was specific to the party position in 2019 and here, there was a context. The party position, as I mentioned, was varied and divided, with no consensus as to whether section 377A should be repealed – and as I said, somewhat similar to Singapore society.

I lifted the whip and did not fetter the voting rights of Members of Parliament (MPs). I did not say speaking rights. I did not fetter the voting rights of MPs. This is consistent with the party position. What has been the result arising from this debate? Six for the repeal of section 377A; three against, for reasons of conscience.

The party position has now been established by way of a majority in Parliament.

On the Constitution, seven for and two abstentions for the reasons the Members mentioned. All the Workers’ Party MPs, apart from Mr Faisal Manap who is down with COVID-19, put their personal positions on the record. And, in my view, they behaved like a loyal Opposition, not loyal to the PAP, but loyal to Singaporeans, knowing the position of Singaporeans outside of this House.

I have two clarifications for the Minister, Mr Speaker.

My first question pertains to an understanding of how and why the PAP chooses to lift the whip for some Bills and not others. And I raise this because the Minister raised it in his closing address. 

Deputy Prime Minister Lawrence Wong announced that the PAP did not lift the whip for this debate because section 377A is a matter of public policy. The Prime Minister, in his National Day address this year, said that not everyone is equally accepting of homosexuality and there were considerable reservations within certain religious groups.

For the Human Organ Transplant Bill of 2009, the PAP lifted the whip so that MPs could vote based on their religious and ethical beliefs. The first generation of PAP leaders under Lee Kuan Yew did the same with the Abortion Bill of 1969, where Mr Lee Kuan Yew himself rose to deliver a speech but was absent when it came to voting.

If I follow the Minister’s reasoning, would it be correct to say Mr Lee Kuan Yew was abdicating his responsibilities?

There would be compelling reasons to suggest that for both these Bills, public policy could have been deployed as a reason not to lift the whip – but the PAP lifted it anyway. Can the Minister please clarify the consistency or lack of consistency with regard to lifting the whip?

My second question pertains to implications of the constitutional amendments for the LGBTQ+ community in the political context. With these amendments, the effect would be that the Courts are not the correct forum to determine questions of housing policies and same-sex marriage, for example. 

At the 2011 General Elections some 11 years ago, the sexual orientation of an Opposition candidate came into the spotlight with the PAP asking the Singapore Democratic Party to “come out of the closet” and the PAP statement on this issue pursued an innuendo that made an allusion to paedophilia.

In view of the speeches made by PAP MPs over the last two days and the call for any change on the definition of marriage to be a political question, can I confirm the PAP’s position with regard to LGBTQ+ candidates standing in General Elections?

Mr K Shanmugam: Thank you, Mr Speaker, Sir. Mr Singh mentioned democracy. He said that in the pursuit of democracy, he will lift the whip. If he now says that is not so, then he can state that for the record. He said, “We are more democratic, we lift the whip”. And I just wanted to point out, let us just be accurate.

People can speak their minds even with the whip imposed. And when Mr Singh says the whip will not be imposed on his MPs, he is referring to voting positions. He is referring to a party position, that when he came into the Chamber here yesterday, the party did not have a position. That is what we are talking about.

And his MPs spoke on both sides; the party did not have a position.

It is not a question of totalling up the numbers at the end of the day. It is a question of coming upfront and saying, “This is our position as a party even though individuals have their different views and they will speak about them”. That is the point I was addressing.

When will a whip be lifted and when will a whip not be lifted? I made it clear in this case, why is the whip being imposed. It is because it is a policy question with serious consequences for Singaporeans.

If we do not repeal section 377A, then we are saying we will not do what we have to do and we will pass on the buck to the Courts. That is an abdication of responsibility as Parliamentarians. 

In such a situation, lifting the whip is not acceptable for the PAP because societal interests are at stake. But where it is purely matters of conscience and you do not quite see such a significant issue for society as a whole, where the very institution of marriage, all your housing policies and your education policies and your rules on the structure and basic content of society can change overnight and where societies get rent asunder by cultural wars, those are the risks we are talking about. Do we duck and say, “Well, you know, we do not have a position”? You are leaving it to the Courts.

Abortion is quite different in that it was a matter of individual conscience, at least at that point in time. I think, today, the issue is well settled in Singapore at least, unlike in some other countries. But at that time, it was a matter that raised very serious personal concerns. People would know the arguments. And, Ireland, much more recently. 

I was not in the House at that point in time and I do not think we should draw conclusions from the fact that one or another Member was present or was not present. But I would be careful if I were Mr Singh to bring Mr Lee Kuan Yew into this and suggest that he had somehow acted dishonourably.

If Mr Singh can remind me of his second question?

Mr Pritam Singh: It was about the LGBTQ question vis-à-vis the PAP’s position as to whether the LGBTQ community would not be a victim of some personal attacks.

Mr K Shanmugam: I think Mr Singh mentioned paedophilia. Again, I do not recall the facts. So, I can only answer in hypotheticals. I think if a paedophile was standing for elections, I am surprised Mr Singh would advocate that cause. Thank you, Sir.

Mr Speaker: Mr Pritam Singh.

Mr Pritam Singh: Mr Speaker, let me take up the last point. But before that, sorry, the point of abdication and suggesting that I am saying Mr Lee Kuan Yew was dishonourable. I never used those words. I think I made the point in the context of the question that I put to the Minister.

On the issue of paedophilia, let me share the specific statement that the PAP made which led me to make that point.

This was the statement that was released by the PAP. “What is its agenda? A video has been posted on the Internet showing Vincent Wijeysingha participating at the forum which discussed the promotion of the gay cause in Singapore.” I do not think there is a problem with that statement. And thereafter it says, “The discussion at the forum also touched on sex with boys and whether the age of consent for boys should be 14 years of age.” The innuendo I think is clear.

In the video, Mr Wijeysingha was introduced as being from the SDP. In addition to other comments, Wijeysingha stated, “I think the gay community has to rally ourselves. Perhaps, one outcome of today’s forum would be for those of us who are interested to come together to further consider how we can address the 377 issue as well as further rights issues in relation to gays and lesbians.”

I do not have any issue with the PAP coming up and saying, “Look, what is the political agenda of a candidate?” But what is the relevance of that point on sex with boys, if not to cast aspersions on the candidate himself and to suggest that. Did he make that point? Was this a forum where this was the only issue that was discussed? So, that was intentionally included. That is my view of the statement.

Mr K Shanmugam: Mr Speaker, Sir, I hope we do not have to go into an extended discussion on this. Mr Singh started out the second question by saying that paedophilia was talked about. Let me make it clear to him. If there is a candidate who is standing for elections, whether for the PAP – and I hope the PAP will never field such a candidate – or for the Workers’ Party or SDP. And if there is a suggestion of paedophilia, I will certainly speak about it and I am sure all right-thinking Singaporeans will speak about it and will say it is not acceptable.

So, I do not quite know the precise context. But as I said in my speech, sexual offences against minors continue to remain serious offences and we take a very serious view. I hope Mr Singh is not suggesting that paedophiles stand for elections and we do not need to talk about it.

As to whether there are broader innuendoes, I think let us get to the point, Mr Singh.

As the Workers’ Party trooped into Parliament yesterday, there was one point. And that point is: Mr Singh, Sir, as Leader of the Opposition, was not prepared for his party to take a position. That is what we are talking about; not about an election held in 2011. We are talking about 2022. What is our position on section 377A? And whether we come here prepared to take a position or we are abdicating.

I think I have made my points. We leave it to Singaporeans to judge.

Mr Speaker: Mr Singh.

Mr Pritam Singh: Likewise, Mr Speaker, I think I have made my point with regard to what Minister has said. But the issue was not about paedophilia and I agree with him I do not think anybody in Singapore would be thrilled to have a person who is a paedophile standing for elections.

But the question I asked was: what is the PAP’s position with regard to LGBTQ+ candidates standing in general elections? I do not think that question has been answered.

Mr K Shanmugam: It appears to me that, as usual, Mr Singh wants to move the goalpost and start an entirely new debate about who can and who will stand for elections. I am not the Prime Minister or the Secretary-General of the party, but my personal view is that anyone who is not a criminal and who is of good character and of sound mind and who can work for the residents ought to be able to stand for elections. In all of this, in a democracy, it also depends on how people are perceived and accepted in society. All of these are relevant considerations. One has got to look at individual candidates.

But Mr Singh started out by talking about paedophilia. I am sure the records, the Hansard, will show that. And that is why I answered. Because I was shocked that he would even ask that question.

Mr Speaker: Mr Singh.

Mr Pritam Singh: Indeed, Mr Speaker, the record will show what the context was with regard to that point on paedophilia. But I accept the Minister’s reply to my second question. Thank you, Mr Speaker.