Singapore Prime Minister Lee Hsien Loong recently announced that a colonial era law that criminalizes sex between men would be repealed. The law, Section 377A (s377A) of the Penal Code, was found to be “unenforceable in its entirety” by Singapore’s highest court earlier this year.
I’m not celebrating.
What happened, in short, is that the Singapore government feared that future legal challenges would succeed in abolishing the law, and acted under the belief that they had no better options. Lee, in his speech announcing the repeal at last weekend’s National Day Rally, said “There is a significant risk of s377A being struck down.” (The court, in fact, had dismissed the legal challenges to the law while declaring it unenforceable.) And Lee said that he was acting under the advice of law minister K. Shanmugam and Attorney-General Lucien Wong.
Why might the government fear a court decision? As Shanmugam said in an interview, “the legal risk is not only to s377A.” After s377A, Shanmugam added, “the definition of marriage itself can be challenged.”
So despite the impression given by some in the media, the Singapore government repealed 377A not out of genuine human rights concerns for the LGBTQ community. They felt compelled to prevent same-sex marriage from becoming law in Singapore.
Shanmugam also revealed that some have suggested that instead of repealing the law, the government could “enshrine s377A in the Constitution, that would prevent a legal challenge,” but he acknowledged it “would not be right” to do so. A “ right thing to do,” he added, “is to protect the family structure.”
More important than Shanmugam’s own views is the role played by the ruling People’s Action Party (PAP) party in the affair. They are not happy with their hand forced to deal with 377A by way of a court challenge.
And so further beneath the facade of a pro-LGBTQ policy is the PAP’s fear of having their power checked by the courts and the constitution.
The lesson the PAP government learned from 377A’s legal challenge is that if the constitution is the problem, then the constitution would need to be changed. The way the PAP sees it, if the constitution enables LGBTQ people to challenge their rule, then they must amend the constitution to prevent such challenges.
Lee said in his rally speech, the Singapore government would move to “protect the definition of marriage from being challenged constitutionally in the courts.” Specifically, Lee said, “We have to amend the constitution to protect it.”
The day after Lee’s announcement, however, the government seemingly walked back on these claims, after facing criticism online. Shanmugam said, “I want to be clear, because there is some confusion. The definition of marriage is not going to be in the constitution.”
Instead, he explained, “what we are planning to do is to put into the Constitution explicitly that Parliament can define the institution of marriage.”
And what is parliament’s stance on marriage?
Look no further than Prime Minister Lee: “We believe that marriage should be between a man and a woman, children should be born and raised within such families, the traditional family should form the basic building block of our society.”
In other words, by amending the constitution, the Singapore government intends to allow parliament to define marriage as union between man and woman, and to prevent legal challenges from same-sex couples.
How is this different from encoding marriage between man and woman into the constitution?
Worse still, Shanmugam added that the PAP’s policies relating to marriage, on housing, education, and other social policies are “not going to change,” and in fact, the government is also “going to protect these policies from legal challenge, by amending the Constitution.”
In other words, the PAP government will be raising barriers for same-sex couples to access such public services. The Singapore government will now allow gay men to have sex legally. But it will make it more difficult to gain equality elsewhere.
The PAP’s Attempt to Subvert the Constitution for its Own Purposes
What does it mean to amend the constitution so that parliament would be able to define marriage?
Shanmugam explained that the government is planning to enable parliament to define marriage “in the way it is defined in the Women’s Charter,” which currently defines it as “between a man and a woman.”
Does this mean then that Singapore’s constitution will be amended, such that a loophole will be created for parliament to flexibly change the meanings of the constitution, by way of the Women’s Charter?
It is a slippery slope to allow the constitution to become subservient to the PAP government’s definitions. This would allow parliament to invest too much power in themselves, and put the legitimacy of the constitution at risk. It would also put at risk the constitution as a piece of objective legislation intended to protect the equal rights of all citizens.
Regardless, the idea that the constitution should be changed on a whim because LGBTQ individuals are trying to fight for fair treatment is an outrageous idea by itself. What the PAP government is essentially saying is that the constitution has to be changed to prevent legal challenges to their conservative governance of Singapore.
This is the danger of a government being monopolized by a single political party for over half a century. During its rule, the PAP has amended and used Singapore’s laws to politically persecute the opposition, activists, and independent media. Sometimes by throwing them in jail for years, or by spurious lawsuits.
One famous case is that of former opposition leader Chia Thye Poh, who was imprisoned without trial for 23 years, and was then placed under house arrest for another nine years.
The PAP’s Sham Compromise
A two-thirds majority in parliament is required to change the constitution. But when a parliament has been monopolized by the specific interests of a political party over more than 60 years, and which intends to curtail the rights of citizens, this puts in significant risk Singapore’s constitution.
In the decision to repeal 377A, Shanmugam said that parliament needed to move on the issue, because “it would set a bad precedent of the judiciary intervening in what is really a political issue.”
On the other hand, Shanmugam said that there needs to be “mutual respect” between the three branches of parliament, the executive, and the judiciary.
But if parliament takes away the right of the court to rule on the constitution while investing in itself the right to define elements in the constitution, this will weaken the judiciary’s ability to ensure fairness and equality in Singapore’s system.
This isn’t mutual respect.
In the end, the repeal of 377A and the soon-to-be regression of Singapore’s constitution is being referred as an “untidy” or “messy compromise” by the PAP government, but what it really is, is that the PAP government fears losing their grip on power.
This “compromise” the PAP means, refers to the legal loopholes they need to fix, to prevent challenges to their power.
In the end, 377A is an existential issue for the PAP, as they have linked their legitimacy to perpetuating conservative rule in Singapore.
This is why Shanmugam said that the government had to intervene with 377A because otherwise, “everything could go in one sweep.”
If 377A is struck down and leads to the recognition of same-sex marriage, senior minister for law Edwin Tong explained that “this in turn will also have an impact on other laws and policies that are built on our existing definition of marriage — such as laws on adoption, public housing, school curriculum, advertising and so on.”
“All of these could come under challenge,” Tong added.
The amendment to the constitution would therefore “allow the Government to continue to make laws and other social policies, which depend on a heterosexual marriage as its foundation without being challenged in court on a constitutional basis,” Tong said.
After the repeal of 377A, Singapore’s ministries have each come out to say that their policies will continue to uphold the PAP’s position.
The education ministry said that family should be “between a man and a woman,” and that its “education policies and curriculum will remain anchored” on such values.
The ministry of communications and information also said that “the repeal of S377A does not mean that we are changing the tone of society,” and that LGBT content will continue to be restricted to adult-viewing only.
In May this year, the ministry of social and family development also amended the law to prevent same-sex couples from adopting.
Shanmugam also revealed that the ministry of manpower will be coming out with processes to protect people from discrimination, including those who “hold traditional values.”
While he also said that those who hold “pro LGBT values” should also not be discriminated, how will this be reconciled with the fact that those who explicitly discriminate against LGBTQ individuals might now also be protected, and the fact that the highest law of the land would now also be amended to reflect the PAP’s beliefs of blocking LGBTQ individuals from equal treatment — this is blatant discrimination that no anti-discrimination policies or processes will be able to overcome.
No Hope for Progress With the PAP
Essentially, discrimination against LGBTQ individuals in Singapore will now be even more formally institutionalized, and any non-discriminatory measures will come subservient to the highest law of the land, which would in one way or another discriminate.
While Singapore’s constitution is intended to ensure that “all persons are equal before the law,” the planned amendment of the constitution will now assure that its sanctity will be destroyed.
At its core, the PAP is a conservative party which has styled Singapore’s policies along its conservative ideology. It is not in the interests of the PAP to allow an electorate to advocate for more progressive policies and challenge its rule.
It is, in some aspects, surprising that the PAP would repeal 377A. But this is perhaps where we have underestimated the PAP. It wouldn’t give way, if it didn’t have a way to protect its own status quo.
By giving up on a lower-level legislation, the PAP has turned its sights on amending the highest law in the land, so that its conservative values, and its power, can no longer be challenged even in court. It is the PAP’s way of telling LGBTQ folks: if you force us to listen to you, we are going to make it hurt for you.
The lessons the PAP wants to teach these groups are: know your place, do not overstep your boundaries, just because we give you that bit of space to make noise.
But the real lesson that Singaporeans need to learn, is that, if they want a government which will genuinely listen, voting for the PAP is not going to get them there, ever.
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TNL Editor: Nicholas Haggerty (@thenewslensintl)
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