Second Reading of the Constitution of the Republic of Singapore (Amendment No. 3) and the Penal Code (Amendment) Bills - Wrap-Up Speech by Mr K Shanmugam, Minister for Home Affairs and Minister for Law

Madam Deputy Speaker,

1.   I thank the Members who have spoken up in support of the Bills.

2.   Most have expressed support for the repeal of s 377A.

3.   I will deal with questions raised by Members on our approach towards cancel culture, past s 377A convictions, keeping sex identification in NRICs and passports, Article 156, and one or two other issues.

Review of Cancel Culture

4.   Mr Zhulkarnain asked for any update to the Government’s plans to deal with cancel culture, and whether there will be any consultation and feedback process.

5.   My Ministry – the Ministry of Law – is looking at measures to deal with the harm caused by cancel culture, cancel campaigns online.

6.   People really ought to be free to stand by their beliefs, express their views, with due respect for the feelings of others without fearing being “cancelled”.

7.   Many religious groups and organisations, in particular are very concerned about this.

8.   Many Church groups have spoken with us. Their experience is that when they express their views, they are shouted down, and they feel bullied.

9.   Children in schools also feel this.

10.   And this is not right.

11.   I have said that we will try and do something about this.

12.   We are studying the matter. We are consulting different groups as part of our review. We want to try and strike a right balance.

13.   It is not an easy area to deal with, or legislate on. We will give more details when we get a sense of what is doable.

Dealing with Existing Conviction Records

14.   Mr Louis Ng asked whether there are any individuals with existing conviction records under s 377A, and how these records will be dealt with.

15.   There are some individuals with convictions under s 377A.

16.   Most of these cases involved non-consenting victims, or acts against minors, or sexual acts committed in public.

17.   These acts continue to be offences, even after any repeal of s 377A, and we do take a serious view of them.

18.   Criminal records for offences are dealt with under the framework in the Registration of Criminals Act, and within that framework, people can apply to have their convictions spent.

19.   Some of these offences have become automatically spent. Automatic expiry takes place after a period of time for specific offences, and where the criteria are met.

20.   Persons who are disqualified from having their convictions automatically spent, can apply to the Police for the record to be considered, or rendered spent.

21.   But where egregious acts were committed, like non-consensual acts, or sexual acts against minors, the records are unlikely to be treated as spent.

22.   There is a small number of individuals who were convicted, between 1988 and 2007, for consensual, private, homosexual acts, between adults.

23.   I have instructed my Ministry to consider how the records of these persons can be rendered spent, proactively.

Removal of Sex from NRIC / Passport

24.   Mr Lim Biow Chuan said that he hopes that the Government will not allow individuals to remove their registered sex from their NRIC or passport.

25.   The short answer is that there is no such plan.

Questions About Article 156

26.   Ms Sylvia Lim suggested that there is no real need for Articles 156 (1) and (2) since the Constitution already vests legislative power in the Legislature, and the Executive authority in the Government.

27.   Let me explain. It is a fairly basic point.

28.   Let’s take s 377A as an example. It is a law made in the exercise of legislative power by Parliament.

29.   S 377A has been challenged as being in breach of the Constitution. Ms Lim agrees that s 377A could be unconstitutional.

30.   And the presence of Article 38 in the Constitution will not help if s 377A is in fact unconstitutional.

31.   To put it another way, the fact that Parliament can pass laws and that Article 38 gives that power, does not automatically mean all such laws cannot be challenged.

32.   They can be challenged, for example, if they are contrary to the Constitution.

33.   And Article 156 is structured to give effect to protect laws and policies based on the heterosexual definition of marriage.

34.   So, Articles 156 (1) and (2) have been drafted in, to give effect to this principle to protect the laws and policies based on that definition, and to make it clear that passing laws and having policies based on the current definition of marriage are constitutionally valid, and they give context to Articles 156 (3) and (4).

35.   We have been advised by the Attorney-General’s Chambers (AGC) that Articles 156 (1) and (2) could be relevant if there are questions raised, as to whether regulating marriage and so on, are constitutionally valid purposes and considerations, for action by the Legislature and Government.

36.   Thus Articles 156 (1) and (2) have been enacted, to make it clear that the Legislature can exercise its legislative power to define, regulate, protect, safeguard, support, foster and promote marriage. Similarly, the Government and public bodies can exercise their executive authority to achieve these ends.

37.   Mr Murali Pillai asked why it is necessary for Articles 156 (3) and (4) to exclude the whole of Part 4, instead of just a few articles.

38.   Let’s look at Article 156 (3)(a) first.

39.   This protects the heterosexual definition of marriage itself from invalidation by Part 4.

40.   We need to exclude the whole of Part 4 because we cannot predict what possible arguments might be made against this definition in the future.

41.   With s 377A, we have seen how the arguments in our courts progressed from Equal Protection under Article 12 to asserting that sexual conduct is a form of Liberty protected by Article 9, or a form of Expression protected by Article 14.

42.   Some of these alternative arguments have been accepted by Courts in other countries.

43.   And it is possible that additional creative arguments could be made about the heterosexual definition of marriage.

44.   For example, could marriage be a form of association that is protected by Article 14? Members may think it is a little outside of the orthodox interpretation today, but can you rule it out?

45.   Thus, if we want to properly protect the heterosexual definition of marriage from Court challenge, we have to exclude the whole of Part 4.

46.   But it is not a carte blanche.

47.   What is protected is quite precise. It is the heterosexual definition of marriage.

48.   That is because just as we have been clear about repealing s 377A, we took a clear position, we are equally clear – and this Government is very clear – that we will protect the heterosexual marriage as a key institution in our society. And that is why the Constitution is being amended.

49.   But let me digress and say, as we say all this, as we listen to the speeches by MPs on families, let’s also not forget, let’s also acknowledge that LGBT persons also have, and come from, families. They have parents, siblings, grandparents, nieces, nephews, aunties, uncles, close friends, and much more. Families are not exclusive to non-LGBT persons. Let’s remember and acknowledge that these things are not binary.

50.   But back to Article 156. If Parliament tries to enact say, for example, apartheid marriage laws, or impose other outlandish definitions of marriage, those laws would not be protected.

51.   Because if you look at Articles 156 (3)(b) and (4) – the operating provisions – they protect the ability of Parliament and Government to make laws and policies.

52.   The protection, the shield, is strong. But what is shielded, we have sought to make it quite precise.

53.   If the Government tries to give benefits to married couples, for example, say with the surname Tan, Article 156 will only protect the part of the policy that relates to married couples. The Government will still have to justify why giving benefits only to people with a certain surname is a relevant consideration. I think lawyers will understand it will probably not be accepted as a relevant consideration.

54.   Nor will the Government be able to take measures that are absolutely prohibited under Part 4, for example, slavery.

55.   If such a measure is taken, the challenge will not be that it is based on the heterosexual definition of marriage or some other basis. It will be on the basis that these measures are not allowed, on any basis.

56.   So, to directly answer Mr Murali Pillai – no, Article 156 does not enable the Government to banish anyone, as the term is conventionally understood today.

57.   Why do I say that? Let me give an example. It will be a nice Constitutional question if for example, a same sex couple were to argue that since Singapore does not recognise same sex marriages, they had no choice but to emigrate, and that that is effectively a banishment, and that this Government’s policy – not recognising same sex marriages – is therefore in breach of Article 13 which precludes Banishment. So, you can see that a careful person will want to think about the different possibilities of arguments, and then make sure that the drafting covers the different possibilities.

58.   We do not believe that the Government’s policies and laws are in breach of Article 13 or for that matter, any other Article in the Constitution. But Members can see that creative arguments can be made. And if you want to be clear that you want to protect marriage, and keep it within the province of Parliament, then you need to make sure that your drafting is accurate. So that is why we have had to draft Article 156 in the way it has been worded.

59.   In the case of executive actions, common law judicial review under administrative law principles will generally still apply. The application of those principles must however take Article 156 into account. For example, with Article 156, acting to promote marriage would not be an unlawful purpose or an irrelevant consideration. But otherwise, administrative law principles can and will still apply.

60.   Ms Lim and Ms He Ting Ru say that judicial review under Part 4 should be fully available, without restriction.

61.   Article 156 takes two specific issues out from the courts’ province and keeps them entirely within the province of the elected branches. One, the heterosexual definition of marriage, and two, the ability of Parliament and Government to make laws and policies based on this definition.

62.   The Government believes that this is necessary, for the reasons I have explained. Parliament and the elected Government should deal with these questions, and try and strike the right balance on these complex and delicate social issues.

63.   Ms Lim’s and Ms He’s position would mean that they accept that the courts can strike down the heterosexual definition of marriage, or to curtail the ability of Parliament and Government to make laws and policies based on this definition, and for society to live with the consequences after that.

64.   This, then, is the choice before the House today. Whether we decide to have the certainty that Parliament will decide on issues of marriage, or whether we want to leave this to the Courts and live with the potential threat of unconstitutionality, and have that change imposed on our society – as has happened in other countries.

General Comments on Lifting of the Whip, WP's Position

65.   Let me now turn to the Workers’ Party (WP)’s position on s 377A.

66.   Mr Pritam Singh, as Leader of the Opposition, says the WP does not take a position on the matter.

67.   Thus, as a Party, the WP has no official position. It does not support the repeal of s 377A. It doesn’t quite oppose either.

68.   It also does not support the Constitutional Amendments to protect marriage.

69.   From their speeches, Mr Singh, Ms Lim, for example, support the repeal. And while Mr Singh supports the Constitutional Amendments, Ms Lim and Ms He Ting Ru do not support the Constitutional Amendments. Mr Dennis Tan and Mr Gerald Giam are against the repeal but support the Constitutional Amendments. Mr Leon Perera is for the repeal – somewhat more enthusiastically than his Leader. And as for the Constitutional Amendments, he takes a divergent position from his Chairman, Ms Lim.

70.   The WP had a debate among themselves.

71.   They debated and discussed but didn’t decide on a Party position.

72.   The question is, if this is how one decides, how will such a team function if they are in charge?

73.   Mr Singh said his lifting the Whip on WP MPs was democratic, so as to allow for a full and honest representation of all views.

74.   That explanation is factually untrue. Every MP must know that. So, it does no credit to this House, to say these things. The WP MPs could have made all the speeches they made, even with the Whip in place.

75.   MPs are always entitled to state their honest views. They can agree, they can disagree. They can say what they think. You can express your views, whatever they are, without having to lift the Whip.

76.   I repeat that. The Whip does not, and has not, prevented MPs from speaking their minds. MPs have always been free to express what they, their constituents, think. The Whip is relevant for voting, not speaking, and the Whip sets out the Party’s position.

77.   In moving the Bills, Minister Masagos and I took pains to lay out both sides of the issue.

78.   The PAP MPs speaking on the issue too, have reflected the concerns, the fears, and pain, of the many individuals they have spoken with.

79.   These include views of Singaporeans from different religious groups, LGBT groups, and others.

80.   So, do not be mistaken – views on all sides can, have been, and must be fully ventilated. And, they have been ventilated by PAP MPs.

81.   As I said earlier, the Whip is imposed to set out the Party’s position as a whole.

82.   In our Westminster Parliamentary system, Parties must have a view on important questions that come before Parliament.

83.   They need to be honest in this House, say what they think is good for Singapore, and be accountable to the electorate for their decisions.

84.   The real point is that the WP, as a Party, does not want to take a stand on this matter. It does not want to be seen as supporting the repeal. At the same time, it also does not want to be seen as opposing the repeal. That way, it hopes to be all things to all men and not too much of anything to anyone. Members may know the second line was said in respect of a well-known person.

85.   In my remarks yesterday, I reminded Members there are two reasons for repealing s 377A.

86.   First, it is the right thing to do, because there are no public concerns that justify private consensual sex between men being a crime. Some disagree with that. They think that the law should be retained as a matter of conscience. I mentioned yesterday that I accept that. We understand and respect these views. These are seriously held views by honest, sincere people, including in this House. They have thought about it, have decided that for reasons of conscience, and often of personal faith, they cannot agree to the repeal.

87.   But I also outlined a second reason to repeal s 377A – the significant legal risk of it being struck down by the Courts if we were to leave s 377A alone, and the significant negative and disruptive consequences for Singaporeans and Singapore, if that were to happen.

88.   This is a policy question, a question that requires us to consider what is in Singapore’s interests.

89.   From the debate, the following points are clear, and are not in question, and the WP does not question them. One, s 377A is at risk of being struck out for being unconstitutional. Two, if s 377A is struck out, then there is a further risk that the definition of marriage could be challenged as well. Three, and that then means there are risks that our housing, education, media content polices, and multiple other polices could all be challenged.

90.   No one has questioned these risks in this House. The WP understands this – there are four lawyers among them in this House, including Ms Lim who has agreed that the legal risks to s 377A exist.

91.   Given that, then what does the WP as a Party propose, if you don’t want to repeal s 377A, and also do not want to support strengthening marriage which we have proposed?

92.   The position with s 377A is like a train approaching. The question is whether we have the courage to act, or rather dive for cover to protect yourself and leave society to face the train wreck?

93.   I emphasised this quite strongly yesterday.

94.   Given the risks, we have a responsibility to do our duty as Parliamentarians to take a position, to deal squarely with the problem, and not abdicate our duty.

95.   To say the Party has no position allows the WP MPs to make speeches supporting all sides, without having to make a decision and be held responsible for the decision. That is not true democracy. It is better described as wanting to speak without taking responsibility.

96.   In the context of our debate, their position will mean that they will leave the decision to the Courts, and let Singaporeans face the negative consequences, including perpetuating differences and polarising our society further if we leave this matter to the Courts. Because the Courts can only make binary decisions as we have seen happen elsewhere.

97.   And if the WP truly believes that these sensitive matters ought to be decided by the Court, never mind the consequences, including further dividing us in endless rounds of litigation. Then, they should be honest and say so in this House.

98.   The only reason we can have a decision in Parliament is because the PAP has its Whip in place.

99.   When you stand up and speak at length about the pain and suffering of the LGBT community, then I think one can ask, why don’t you take a clear stand and support the repeal? Or if you believe otherwise, take a stand, oppose the repeal, as a Party.

100.   As I say this, Madam, let me tell Members, the issue of conscience, which is real, is quite different from the issue of policy. I have focused on the policy issue and I think it is not too much to ask that a clear stand be taken on the policy issue.

101.   Let me end by quoting Winston Churchill: “They are decided, only to be undecided; resolved, only to be irresolute.”

102.   Madam, this Government has consulted widely, and has come to a position.

103.   We believe that our policy offers a way forward. It balances the different views, maintains our social cohesion, keeps us together. PM and DPM Wong have stated clearly that they will maintain this position. On this difficult matter, we will do our duty and take responsibility for holding society together.

104.   Thank you, Madam Deputy Speaker.