Parliament repeals Section 377A, approves constitutional change to protect definition of marriage

SINGAPORE — Parliament on Tuesday (Nov 29) passed two Bills to repeal Section 377A of the Penal Code, which criminalises sex between men, and to amend the Constitution to protect the definition of marriage as being between a man and a woman.

This follows a 10-hour debate over two days involving more than 40 political office-holders, Members of Parliament (MPs), Nominated MPs and Non-Constituency MPs, with 16 of them doing so on Tuesday. 

Among the concerns raised by MPs were those related to a new Article 156 in the Constitution to protect the definition of marriage, what the passing of the constitutional amendments would mean for religious freedom, and the stance of education institutions following the repeal.

Several MPs also cited the TODAY Youth Survey, which showed that about two-thirds of young adults agree that the repeal is a step towards a more inclusive society, reflected the changing attitudes of youth in Singapore. 

Closing the debate, Law and Home Affairs Minister K Shanmugam reiterated that repealing Section 377A is the right thing to do and that if Parliament did nothing, there is a significant risk of the law being struck down by the courts, which would have damaging consequences for society.

He also chastised the Workers’ Party (WP) for not having an official position on the two Bills, drawing a response from WP chief Pritam Singh that this is not true, since six of his party members were for the repeal of Section 377A.

HOW THE VOTING WENT

Following the conclusion of the debate, a division bell was run to ascertain if the amendments to the Constitution and Penal Code had garnered the required support from Members of the House. In a division, the vote of each MP is collected and tabulated.

The amendments to the Constitution saw 85 MPs vote “yes”, two MPs vote “no” and another two who abstained from voting. Constitutional amendments require the support of at least two-thirds of elected MPs and Non-Constituency MPs, which is a total of 63 MPs, to pass. 

Those who voted "no" were Mr Leong Mun Wai and Ms Hazel Poa of Progress Singapore Party (PSP), both Non-Constituency MPs. Ms Sylvia Lim and Ms He Ting Ru of WP abstained from voting. 

The amendments to the Penal Code saw 93 MPs vote “yes”, three MPs vote “no” and no MPs abstained. MPs, Non-Constituency MPs and Nominated MPs can vote on amendments to the Penal Code, and a simple majority is required to pass the changes. 

Those who voted "no" were WP MPs Gerald Giam and Dennis Tan, and Nominated MP Hoon Hian Teck. 

All of the MPs from the ruling People’s Action Party (PAP) who were present voted for the two Bills. The party did not lift its whip, which meant its MPs had to vote according to the party's position.

ARTICLE 156 

The Bill on the constitutional amendment proposed adding a new Article 156 to the Constitution, which makes clear that Parliament can act to define, regulate, protect, safeguard, support, foster and promote marriage — among other things.

The Article also allows the Government and any public authority to exercise their functions to protect, safeguard, support, foster and promote marriage.

Additionally, the Article provides that nothing in Part 4 of the Constitution, which sets out fundamental liberties, will invalidate any legislative definition of marriage as a union between a man and a woman.

Mr Murali Pillai, PAP MP for Bukit Batok, questioned the necessity for Article 156 to exclude the whole of Part 4 of the Constitution, rather than specific provisions. 

In his speech on Monday, Mr Pillai had noted that laws against subversion and emergency powers identify specific provisions in Part 4 to be excluded, and asked if it was possible for the Government to do the same for Article 156 as well. 

In his response, Mr Shanmugam said that Part 4 has to be excluded in whole because the Government cannot predict what possible arguments might be made against this definition of marriage in future. 

He pointed to how arguments in Singapore's courts on Section 377A had progressed from equal protection under Article 12 of the Constitution to asserting that sexual conduct is a form of liberty protected by Article 9.

Such alternative arguments have been accepted by courts in other countries. To protect the heterosexual definition of marriage from a court challenge, the whole of Part 4 of the Constitution needs to be excluded from the Article.

“But it is not a carte blanche. What is protected is quite precise. It is the heterosexual definition of marriage,” Mr Shanmugam added. 

Ms Lim of WP also questioned the need for the Article to state that the Government and any public authority may exercise their executive authority.

She noted that it is already spelt out under Article 23 of the Constitution that executive authority is vested in the President and exercisable by Cabinet Ministers and other bodies authorised by the law. Therefore, the provisions in Article 156 “do not add anything new to the current position”, she said.

In his response, Mr Shanmugam said that although Parliament can pass laws, it does not mean that these laws cannot be challenged. They can be challenged if, for example, they are contrary to the Constitution.

That is why Article 156 is structured to give effect to protect laws and policies based on the heterosexual definition of marriage. It also makes clear that passing laws and having policies based on the current definition of marriage are constitutionally valid, he added.

CANCEL CULTURE

In their closing speeches, Mr Shanmugam and Mr Masagos Zulkifli, Minister for Social and Family Development, responded to several concerns that MPs raised during the debates.

Some MPs had asked about the Government’s plans to deal with “cancel culture”.  

In his speech on Monday, Mr Sharael Taha, MP for Pasir Ris-Punggol Group Representation Constituency (GRC), noted that there are strong views for and against the repeal of Section 377A and there is the worry that there would be “increased activism” on both ends of the spectrum, possibly dividing society. 

Mr Shanmugam said that the Ministry of Law is looking at measures to deal with the harm caused by cancel campaigns online.

He also said that people ought to be free to stand by their beliefs, and express their views, with due respect for the feelings of others, without fear of being cancelled.

This is not an easy area to deal with or legislate on, but he said that his ministry is studying the matter and consulting different groups and will give more details when they “get a sense of what is doable”.

SEXUALITY EDUCATION

Mr Masagos also tackled questions from other MPs related to sexuality education in schools, as well as matters related to international schools compelling staff members and students to take part in gay community projects “even if they do not subscribe to the same lifestyle”.

He said that Singapore’s education policies and curriculum remain anchored on Singapore's prevailing family values and social norms, which most Singaporeans want to uphold. 

“These include the family as the cornerstone of our social fabric, and marriage between a man and a woman.”

Mr Masagos also said that the sexuality education curriculum of the Ministry of Education (MOE) reflects this national stance, and that it remains secular and is based on research and evidence.

As for international schools, although MOE does not regulate their curriculum, schools that operate in Singapore should respect the country’s social norms and values, he added.

RELIGIOUS FREEDOM

Turning to questions about religious freedom, Mr Masagos said that Article 15 of the Constitution protects it, and that every person has the right to practise his or her religion subject to public order, health and morality.

“One can still preach on the pulpit their beliefs about homosexuality or family, even if others might disagree. But no one should incite violence or hate towards others.”

That said, in exercising religious freedom, people must understand that they are also members of a plural society, and “graciously accommodate those who have different values”, he added.

Mr Masagos noted that WP MPs Dennis Tan, Gerald Giam and Faisal Manap had chosen not to support the repeal for religious reasons.

Yet, they did not offer any solution on how to keep society united and cohesive, if Section 377A is found to be unconstitutional. 

“Is their solution to accept a decision by the court? What would be the implications? If so, then why not vote for the repeal now?”

VOICING PERSONAL BELIEFS AT WORKPLACES

In his speech, Mr Masagos also said that the Government will not tolerate discrimination at the workplace — another concern some MPs had raised in their respective speeches.

Among them were Mr Derrick Goh (Nee Soon GRC), who had asked about multinational companies in Singapore offering family benefits to gay employees, and Ms Jessica Tan (East Coast GRC) who had related concerns from working professionals about being bullied in the workplace if they publicly stated that they do not accept homosexuality. 

Mr Masagos said that the Government generally does not interfere with how private businesses operate, but these businesses must respect that their own employees have a right to personal beliefs and should not cross the line into advocacy on issues in Singapore that are socially divisive.

“At our workplaces, employees should not feel compelled to support causes or participate in activities that do not align with their beliefs.” 

He added that the Government will not tolerate discrimination at the workplace, reminding the House that employees are protected against it under the Tripartite Guidelines for Fair Employment Practices.

These guidelines, he said, requires employers to make employment decisions based on merit and not factors irrelevant to the job.

WHAT PINK DOT SAYS

Pink Dot, an advocacy group for the lesbian, gay, bisexual, transgender, queer and others (LGBTQ+) community, said in a statement on Tuesday that the repeal of Section 377A is a "historic milestone" for LGBTQ+ equality.

It said, however, that some MPs' speeches during the debate pitted LGBTQ+ people against “family values” and “religious freedoms”, with these narratives used to justify the continued discrimination of the LGBTQ+ community in areas beyond the Section 377A legislation. 

Pink Dot said that many MPs have a long way to go when it comes to educating themselves about their queer constituents. 

“As esteemed political leaders, it must be expected that in a public debate about LGBTQ+ issues, that they consult with LGBTQ+ people and conduct meaningful research. 

“Importantly, they must be able to discern between the community’s lived experiences and fearful rhetoric that is more grounded in fiction than fact,” it said.

REPEAL CONDUCTED ‘RESPONSIBLY AND THOUGHTFULLY’ 

In a Facebook post on Tuesday night, Prime Minister Lee Hsien Loong said that the repeal of Section 377A had been handled “responsibly and thoughtfully” even though it could have easily been a very divisive one. 

"This is a major achievement," he wrote.

He added that engagement on the issue had started long before he had announced the repeal during the National Day Rally in August this year, with thousands of people taking part in “countless dialogues” to share their views. 

“The way we have been able to handle this delicate matter gives me confidence that the outcome will be well-accepted. 

“Other difficult issues are bound to arise in the years to come. With the same spirit, we can tackle them successfully, while remaining one united people.”