The repeal of S377A: democracy, secularism, and acceptable speech under threat

Some 25 years after China, 31 years after Hong Kong, and 66 years after Thailand, Singapore has decriminalised consensual sex between men. Gay rights activists and the brave lawyers who’ve led a succession of constitutional challenges deserve immense credit for prompting social change.

The mainstream media has suggested that the process of repeal has been considered and respectful. It was indeed heartening to see numerous politicians from the ruling People’s Action Party (PAP) and the opposition Workers’ Party (WP) searching themselves and showing empathy for the plight of gay men in Singapore.

“...the time has come for us to remove Section 377A [the colonial-era law that criminalises sex between men], because it humiliates and hurts gay people,” said K Shanmugam, home affairs and law minister.

Yet it would be naive to ignore the appalling aspects of last week’s parliamentary session. Different politicians from both parties advanced homophobic positions, marshalled bogeymen to incite fear, and just generally exposed their hollow understanding of human rights and equality.

What should have been a rainbow-themed bash, a celebration of our polyglot city’s intrinsic tendency to welcome and include, instead exposed some of our worst instincts.

This was “Equality” dished out not on a gleaming platter but in a poisoned chalice; given not with love but in the most begrudging way possible. Gay people? Fine, if we must.

Jom believes that there are three issues that deserve serious scrutiny: the separation of powers in a democracy; the role of religion in politics; and the bounds of free speech.

Last week, Shanmugam said that Parliament “abdicates” its responsibility if it does not repeal a law that the courts might rule unconstitutional.

This is a curious position to adopt. It presupposes legal proceedings and decisions, and seems to deny a basic role of the judiciary: to safeguard the Constitution and strike down unconstitutional laws. This is what Singapore’s Parliament says about its own separation of powers:

“The Government in Singapore is modelled after the Westminster system, with 3 separate branches: the Legislature (which comprises the President and Parliament), the Executive (which comprises Cabinet Ministers and office-holders, and is led by the Prime Minister) and the Judiciary. The Legislature makes the laws of the land. The Executive administers the law. The Judiciary interprets the law through the Courts.”

Clearly, there is no abdicating of responsibility if the judiciary is left to interpret S377A, or any other law, for that matter. That’s its duty.

One could, of course, argue that any separation of powers here is just wayang, a mirage. “We effectively don't have a Constitution. We have a law that can be easily changed by Parliament, and by the party in power because the party is Parliament,” said Walter Woon, former attorney-general, in 1991.

In keeping with that ethos, last week the PAP also amended the Constitution to prohibit challenges to the definition of marriage (that may violate any fundamental liberties enshrined in Part 4 of the Constitution). In other words, Parliament can define marriage however it wants—and if that definition violates your Constitutionally-defined liberties, you can no longer challenge it in court.

Politicians separately emphasised that there will be no change to education, housing, adoption and media policies that currently discriminate against queer couples and single parents.

Politically, all this is seen as a quid pro quo for conservatives, a way to assure them, as The Straits Times so quaintly put it, that “Singapore is not about to become a gay paradise.” Yet, all citizens should be deeply concerned by this blatant carve out that curtails the judiciary’s ability to protect citizens from a rogue government.

“It is Part 4 that grants individuals critical protections against abuse of state power, such as ensuring freedom from arbitrary arrest and freedom of religion, and the right to equal protection under the law,” said Sylvia Lim, WP member of parliament (MP). “The Constitution is the fundamental legal safeguard of citizens, to protect them against illegal laws and policies that violate the Constitution.”

Daryl Yang, a lawyer and activist, suggests that the amendment itself could potentially be unconstitutional. “Is it legally permissible for Parliament to amend the Constitution in a way that violates the Constitution itself?” he wrote.

The PAP’s reasons for insulating Parliament’s definition of marriage are unconvincing. In August, Lee said that if change happens through litigation in the courts, it will “highlight differences, inflame tensions and polarise society.” But there’s no evidence of this in post-independence Singapore. In 2018, when India’s Supreme Court struck down S377, over a billion people accepted it and moved on.

There is no reason why change will be less contentious if it occurs through Parliament, as last week’s debate proved. Parliament has done exactly what Lee worried about in August: highlighting differences, inflaming tensions and polarising society.

The amendment is the latest in a series of manoeuvres—including the recent POFMA (Protection from Online Falsehoods and Manipulation Act) and FICA (Foreign Interference (Countermeasures) Act 2021) bills—through which power has been further concentrated in the hands of politicians, all under the guise that the judicial process is sub-optimal.

The carve out sets a dangerous precedent. “What would stop a future Parliament from passing discriminatory legislation and then shielding it from judicial oversight?” asked the WP’s He Ting Ru. She and Lim were the only elected MPs who abstained from the amendment vote. (The Progress Singapore Party called for a referendum on marriage.)

“I was worried that I may come across as prejudiced against members of the LGBT community,” said Giam. “Hand on heart, I am not. LGBT persons are our fellow human beings, worthy of the same amount of love and respect that we accord to any other person.”

Yet by voting against repeal, Giam, Manap and Tan have reaffirmed that gay men must be considered criminals in Singapore. Worthy of “love and respect”, but not legal? This is not an intellectually or morally defensible position.

It’s likely that they would have been joined by PAP MPs had the party not enforced its Whip. Still, several PAP MPs found ways to smear queer people even as they voted for repeal. Christopher de Souza repeatedly emphasised the “Order of Things”, with the clear allusion that certain people and behaviours are against this natural order.

As Faris Joraimi, Jom’s history editor, noted last week, it was an ironic position for an Eurasian to adopt, because in colonial South-east Asia, Eurasians themselves—disparagingly called “half-castes” or “Indos”—were at times considered unnatural by the Europeans.

Vivian Balakrishnan, foreign minister and de Souza’s teammate from the Holland-Bukit Timah Group Representation Constituency (GRC), cheered the traditional family form, saying that since “time immemorial” it has been venerated by all societies.

“One man, one woman, committed to each other to bring up their children in the context of a stable marriage,” he said. “But having said that, we also need to acknowledge that not everyone will be so blessed and enjoy such a simple straightforward life, and that sometimes life does not go according to plan.”

Against the Order of Things. Not blessed. Life not going according to plan.

The othering and stigmatisation of queer people and single parents has been a running theme of the PAP’s. Yet de Souza and Balakrishnan’s notions of order and history have long been debunked.

“People often say that it is unnatural to be gay, that nature wanted males to love females and females to love males and gay people break the laws of nature,” says Yuval Noah Hariri, the (openly gay) historian and author of Sapiens: A Brief History of Mankind. “Scientific research taught me that this is utter nonsense. There is just no such thing as unnatural behaviour...in truth our concepts natural and unnatural are not taken from biology. They are taken from Christian theology.”

Perhaps inspired by this theology, Balakrishnan and de Souza, along with their GRC mates, had in 2011 infamously outed Vincent Wijeysingha, a gay politician running against them, insinuating that he may support paedophilia.

Last week, Balakrishnan must have stunned Parliament when he said that he has gay friends, a statement so in vogue that it’s become the Singaporean equivalent of “I’m not racist, I have Black friends”, a claim to innocence by association.

“If many of us think back to our school days, I think we all fell short,” he said, suggesting that anti-gay prejudice was like the common cold. “I will confess to having fallen short and for that I apologise to my gay friends.”

No apology for Wijeysingha, though. Which points to another reason that the PAP may have wanted to pre-empt the courts: the desire to claim credit for the change. Shanmugam can now cloak his party in some faux rainbow sheen, which presumably can help hide its troubling history of homophobia.

In the 1990s, for instance, Goh Chok Tong was prime minister, Lee was deputy prime minister, and Shanmugam was an MP when Singaporean cops conducted sting operations to attract and catch gay men. Any apologies for that?

However enlightened and righteous the PAP might now appear, it is singularly responsible for Singapore’s backwardness in terms of gay rights. Given its societal and political dominance, it could have repealed S377A decades ago—if it wanted to. The law, as the establishment surely must have known, underpins all the homophobia that still permeates schools, workplaces and public spaces.

Despite widespread evidence of this, some PAP and WP MPs, astonishingly, took the opposite tack, projecting the bogeyman of “cancel culture” to suggest that gay rights activists were discriminating against others. Lim Biow Chuan, PAP MP, said that employees at MNCs had complained to him about workplace harassment “if they do not support the gay beliefs or if they refused to attend a pride event.”

Where’s the evidence? Companies have procedures to deal with such harassment. So does Singapore. That Lim could make such an unsubstantiated statement without being challenged is itself an indication of how powerless the queer community is. Having endured decades of prejudice, gay people are now being accused of it.

In terms of gay rights in Singapore, there is on the one side a group worried about harmful language that might stymie the journey to equality, if not endanger a traditionally vulnerable community. On the other, is a conservative block that feels it can’t speak freely because of the risk of getting called out or “cancelled”.

While our sympathies are certainly with the former, it’s worth acknowledging that both groups feel victimised in their own way. “..many, especially those from the younger age groups, are concerned that as the societal narrative shifts, they will find it harder to freely express their own beliefs without being labelled as homophobic,” said Giam.

“...imam, priest, pastor, bishop, rabbi or men and women of any religion cannot be prevented from teaching what their faith teaches about marriage and about homosexuality,” said de Souza.

Many Singaporean politicians, including de Souza and Giam, seem to have a basic misunderstanding of free speech: religion is not a defence for bigotry, prejudice, and potentially hateful speech.

European colonisers, including in South Africa and the Americas, relied on biblical justifications for their subjugation of indigenous communities, for their dehumanising rhetoric towards them.

That’s no longer acceptable. Few societies today would tolerate racism or religious bigotry that stemmed from one’s faith. Singapore would never allow a priest or imam to repeatedly cite passages threatening “non-believers”.

Under the Maintenance of Religious Harmony Act (MRHA), the government has issued warnings to a Christian pastor who had criticised Buddhism, Taoism, and Catholicism in church publications and sermons; and an Islamic leader who lampooned the Hindu belief about statues of Ganesha, the elephant god, being able to drink offerings of milk, as the work of Satan.

Singapore, in other words, already severely limits free religious expression—even in a private space within one’s religious institution—if it threatens another group. Why then do we allow faith-based homophobia?

Definitions of homophobia may differ, though calls to criminalise gay people, citing “conscience” and “faith”, or to suggest that gay people are against the Order of Things or not blessed, would certainly qualify.

And they simply repeat the sins of those colonisers, albeit towards a different vulnerable community.

Indeed, in late October, Shanmugam said that the MRHA could be used against a religious group if it uses religion to attack “a non-religious group, such as LGBT (lesbian, gay, bisexual, and transgender) groups or individuals.”

Going by last week’s parliamentary session, one wonders how this can be enforced with equity. Indeed, Yang has argued that “...the new [MRHA] provisions continue to afford greater protection for religious persons and groups.” Might religious groups now feel emboldened by our politicians?

At some level, Singaporeans have to break free of our dependence on the government as watchdog, and cultivate critical thinking and discursive skills so we can self-police and moderate speech in the common space.

Homophobic speech, like racist or other bigoted speech, must never be condoned in public discourse. Those who call it out are not guilty of “cancel culture”; rather they’re nudging society towards healthier exchanges.

This fear of “cancel culture” has often been incited by conservatives unable to adjust to changing societal norms. They haven’t gotten used to the idea that faith-based views are going to be challenged in the secular marketplace of ideas.

More broadly, Singapore is transitioning from a period when race and religion were taboo topics and the government mediated conversations through anointed commentators in print newspapers and TV—to the one now, still nascent, when a multitude of actors, many anonymous, have built followings interrogating any topic on open, collaborative platforms like Instagram.

By suppressing public discourse for so long, and by cocooning faith-based homophobia within some misguided notion of religious liberty or democracy, the government has actually handicapped those with religious convictions (and thus society at large).

They venture into this new media environment, a relative cacophony, and might feel unprepared, vulnerable and naked without the state’s protective embrace.

Whatever our misgivings about Giam’s arguments, through his voice and demeanour he embodied this fragility, this deep sense of angst that many must feel.

Given that there will be many more testy debates around gay rights and other social issues, it’s important that Singaporeans approach each other with compassion, empathy and open-heartedness—while remaining clear-eyed about potentially harmful speech.

We would do well to remember that it is the statement that is homophobic, and not necessarily the person. Calling out the former doesn’t necessarily imply demonising the latter.

Because the ideological spectrum on social issues is so wide in one tiny city—think evangelicals to Yale-NUS kids—the process of unlearning homophobic impulses and words, like the process of unlearning misogynistic or racist ones, will necessarily be confusing and disjointed, with a range of approaches and narratives needed.

A related, thorny issue is the decision by the WP to encourage a full spectrum of views, from anti-gay to ally-ship, in Parliament.

“Given the varied public opinion on the impending repeal of Section 377A, there is a risk that the democratic value of Parliament could be diluted if the views of Singaporeans on this subject are not adequately ventilated in the house,” said Pritam Singh, secretary-general of the WP and leader of the opposition.

Yet bigoted views are surely unworthy of this.

If Parliament was debating a religion bill, would Singh want Singapore’s anti-Muslim views to be aired? If an immigration bill was up, would Singh want Singapore’s extreme nativist views to be “adequately ventilated”?

Presumably not. It is incumbent on any plural democracy to protect the rights of minorities.

In this case, Singh probably felt forced to appease religious conservatives for the sake of internal party cohesion and political expediency, the same way the PAP long has.

The great failing of both parties was their inability to offer an aspirational narrative about Singapore’s openness and diversity. The repeal of S377A was an opportunity to strengthen society, to rally people around values that would make us proud to be Singaporean.

Consider the uplifting rhetoric from India’s Supreme Court in 2018. “Social exclusion, identity seclusion and isolation from the social mainstream are still the stark realities faced by individuals today, and it is only when each and every individual is liberated from the shackles of such bondage…that we can call ourselves a truly free society,” said Dipak Misra, the then chief justice.

Meanwhile, in 2003, in cheering a US Supreme Court ruling that removed the last potential gay sex restriction, Suzanne Goldberg, a professor at Rutgers Law School, said that: “It removes the reflexive assumption of gay people's inferiority.”

This points to the salient issue with last week’s S377A debacle. Singapore’s Parliament had a chance to remove this reflexive assumption of gay people’s inferiority—instead it reinforced it.

All things considered–the usurping of democratic norms, the infiltration of religion into the politics of a secular state, and the ignorance of the bounds of free speech–Jom believes that only two MPs, He Ting Ru and Sylvia Lim, voted and spoke with the conviction, dignity and grace befitting such an occasion.

In the coming years, as Singapore society continues to create space and bolster rights for queer couples, single parents, and other vulnerable minority groups, we hope that the two of them can knock some sense into their colleagues—on both sides of the aisle.

This editorial is from Jom's team.

Read Jom's earlier piece on S377A.