Transcript of The Straits Times and Lianhe Zaobao’s Interview with Mr K Shanmugam, Minister for Home Affairs and Minister for Law

Question: Minister, thank you for joining us on The Big Story. Minister, take us through the thought process of why the Government has decided to repeal Section 377A (s377A) now in 2022, in the context of the latest judgement.

Minister: You heard the Prime Minister last evening. I, and the Attorney-General, both advised him that there is a significant risk of s377A being struck down in a future challenge, on the basis that it breaches the Equal Protection provision in the Constitution. The Attorney-General and I came to this view, we talked to other lawyers as well. We carefully studied the judgement, and in this case, the Court of Appeal ruled on many points, but it expressly refrained from ruling on whether s377A breaches the Equal Protection provision in Article 12 of the Constitution.

Let me explain. There were several challenges to s377A based on the Constitution. For example, that it was in breach of Article 9, which protects life and personal liberty. The Court of Appeal dismissed it. It was argued that s377A was in breach of Article 14 which protects freedom of speech and expression. The Court of Appeal dismissed that argument. But when it came to the challenge against s377A by reference to Article 12 – Article 12 is the Equal Protection clause – the Court of Appeal expressly said that they are not going to rule on whether s377A breaches Article 12, and they said that there were two ways in which Article 12 could be applied. Under one of the two ways, if you read the judgement, the Court of Appeal essentially said that s377A could be unconstitutional, it could be in breach of Article 12. The Court added that they did not have to decide on the right test now. They left it to “a suitable occasion in the future”, which in my view means they can, and probably will, decide it in future. Subsequently, in other cases, the Courts seem to have accepted the test which – if applied here – could mean s377A is likely to be held unconstitutional. So, in summary, they dismissed the challenges on Articles 9 and 14, but left open the questions on Article 12, and signalled that s377A could potentially be unconstitutional, and they said they can deal with it in the future.

Now, our Courts have over the decades exercised restraint in such questions, as they did in this latest judgment as well. They recognise what is in the sphere of Parliament, and what is in the sphere of the Courts.

You see it in the judgements, and you see it in speeches of the Judges, outside of judgements.

However, if Parliament doesn’t act, either because of fear or because of a lack of will, and therefore doesn’t deal with the law which may be in breach of the Constitution, then the legislature, that is the Parliament, is not doing its job. Then, you make it difficult for the Courts to exercise restraint.

Our system has worked well all these years, because all the three branches – Parliament, the Executive that is the Cabinet and the Civil Service, and the Judiciary, i.e. the Courts – all three work within their respective boundaries, fulfil their respective roles, and work well, with mutual respect. If, however, Parliament doesn’t deal with a law which is potentially unconstitutional, you may then leave the Courts with no choice. They have to interpret, and if a law is unconstitutional, they may well say so.

Now, I know there are lawyers who believe – they’ve said that to us too – that our Courts will not take an activist approach, and aren’t likely to strike down s377A. I prefer not to go into descriptions of our Courts, as to whether they are activist or non-activist. The point is this – it would be irresponsible for us as a Government to assume that the Courts won’t strike down s377A, even if they thought it was not constitutional. Looking at the Court of Appeal’s comments, and the state of the law as it is, we have to make a careful logical assessment. You can’t proceed on these things on the basis of hope and wishful thinking. Hope and wishful thinking cannot replace careful legal analysis. Our analysis led to the conclusion that there was a significant risk that s377A might be ruled unconstitutional in a future case. And the legal risk is not only to s377A. After that, the definition of marriage itself can be challenged.

Marriage in Singapore is now defined in the Women’s Charter as between a man and a woman. It can be challenged, it can be asked – Article 12, Equal Protection, why should marriage only be between a man and a woman? Why shouldn’t it be possible for two men, or two women, to be married? Someone could argue that marriage policies are in breach of Article 12 of the Constitution. And such arguments about marriage have been made elsewhere successfully.

And it will not just be marriage. Many of our laws and policies built on the current definition of marriage – public housing, education, media, many others – all of these could be challenged. So, we decided the Government must take responsibility, and act now. These are issues that should be dealt with in Parliament by MPs, elected representatives, rather than in the Courts, as the Courts themselves recognised.

Then the next question is, if you think there is a significant legal risk, what do you do? Government had many different possibilities, choices of action, courses of action. Some have said enshrine s377A in the Constitution. Others have suggested other ways, paths of less resistance. And if you enshrine s377A in the Constitution, that would prevent a legal challenge. Or, do other things, such that a challenge to s377A will not matter. The Government has the majority to do that, but is that the right thing to do?

We decided the right thing to do is the course that we have put forward. Government has repeatedly said that what consenting adults do in the privacy of their bedroom is generally not a matter for Criminal Law. So, it would not be right to enshrine s377A in the Constitution. It will also not be right just to leave it be, leave it alone. The right thing to do is to decriminalise, stop making it an offence for gay men to have sex. It doesn’t mean anyone has to approve it. It just means it is not criminal, and people can have their different views on this matter. And the right thing to do also, as I explained earlier, is to protect the family structure.

Question: Minister, the Government has said in the past that it would only move on this law when society is ready. And yet, what you just described sounds like we’re actually doing it now because there’s a risk that the law can be struck down by a court in a future challenge. So, can you tell us a bit more about why now and not later?

I explained quite a bit on what the right thing to do is. The legal position, I’ve explained the risks. But the more fundamental question was and is – what is the right thing to do? If you have been following the debates on both sides, very passionate viewpoints have been expressed. You will see in this context, the easiest thing for the Government to do would have been to just leave it alone, do nothing.

And if we did nothing and we left it to the courts to strike out s377A, the Government would be able to just shrug its shoulders and say well, we didn’t do it, the Courts did it. That way, the Government avoids carrying the responsibility. It would have been the path of least resistance, the easier path. If you approach these issues simply and purely as a politician concerned about votes only, then you will take this course – try and avoid doing anything, just pretend that it doesn’t exist, leave it to the Courts.

But if you ask yourselves, what is the right thing to do, regardless of political cost?  Then, as PM said last night, our laws have to keep pace with social mores, society, changes. Gay people – they are our family, our colleagues, our friends. They deserve dignity, respect, and acceptance – as the rest of society does. And it would have been wrong to continue criminalising their sexuality, criminalising what they choose to do in private. Nobody deserves to be stigmatised because of their sexual orientation. So, repealing s377A, removing their pain, is the right thing to do.

At the same time, in our view, keeping quiet, passive, and letting the Courts deal with it, carry with it the great risk damaging the fundamental fabric of society, the structure of family. I explained that earlier – because it will risk the current definition of marriage. The current definition of marriage, why it should only be between a man and a woman, can be challenged. And our housing, education, social policies, many other policies, would be risk. These are serious issues.

So, if the courts rule s377A to be unconstitutional, it would set a bad precedent of the judiciary intervening in what is really a political issue, which they recognise is a political issue, and the reason they have to intervene is because the Executive and the Parliament have failed to do our jobs, we’ve failed to do what we need to do. And then everything could go in one sweep.

The Courts cannot do a balancing exercise. They just apply the law. They say what the law is. Parliament can do a careful balancing exercise on where to take society. That is the role of a responsible Parliament. And if Parliament doesn’t discharge its duties, then the Courts will apply the law, because they will be faced with it.

A responsible Government therefore cannot stand by and be passive, and let this happen. If we believe in Singapore, and we believe what makes Singapore successful; if we believe that the family is important – and we do – then we must move to prevent legal challenges to the current family structure.

Some of the people who oppose the repeal of s377A don’t appreciate this risk to the family. They don’t realise that the Government has actually thought this through several steps and is moving strongly to protect the family structure in Singapore.

So, I will summarise. Two things – The right thing to do, one, is to decriminalise gay sex amongst men. And at the same time, two, protect the family, protect the current definition that marriage is between a man and woman, protect our education, housing and social policies.

Question: Minister, let’s talk about political cost. You stressed that “it’s the right thing to do”. It’s a contentious issue, s377A. You said the Government could have just let the Courts deal with it, but you didn’t. So, what is the political cost, what is the political hit there?

You see the tremendous amount of passion on both sides that this discussion has unleashed over the last several months. You see all the statements issued by religious groups, as well as non-religious groups, LGBT groups. Big arguments. We want to keep the social fabric intact, we want to keep social harmony, we want to achieve the right balance. However, if we just kept quiet, put on as I said, put on the helmet, go into the bunker, and pretend that nothing is happening, leave it to the courts. And when the courts did strike out s377A, we can come out and say well, the Courts did it, not us.

By taking these steps – and these are not vote-winning steps – it's going to make people unhappy when they believe that a different course of action is the right course of action. What we have to do is to go and explain to them why we are doing it, why this is in the interest of Singapore, and how we are balancing all the different interests, and how the family structure will actually be better protected hereafter.

These are not easy things to do. It would have been easier to have kept quiet.

Question: Minister, you spoke about protecting marriage, and last night PM Lee said the Constitution will be amended to ward off legal challenges against the definition of marriage. So, can you tell us a bit more about how this will be done?

I want to be clear, because there is some confusion. The definition of marriage is not going to be in the Constitution. That is not the intention. The risk is that the current definition of marriage in the Women’s Charter can be challenged on the basis that it is in breach of Article 12 of the Constitution.

So, what we are planning to do is to put into the Constitution explicitly that Parliament can define the institution of marriage, and, in the way it is defined in the Women’s’ Charter; and it can make other pro-family policies on the basis of that definition – that marriage is between a man and a woman. And that these laws and policies, which rely on the definition of marriage, cannot be challenged in Court by reference to Article 12, or by reference to the Constitution.

This means the definition of marriage in the Women’s Charter – it will make it difficult to challenge that definition on the basis that it is unconstitutional. It will have to be dealt with in Parliament. So, if a Party, a group of people, want to allow same-sex marriage, they will have to put that in their manifesto, fight elections, win the elections, get a majority, and then change the definition of marriage.

This Government's position is very clear, and you have also heard what DPM Lawrence has said. We are committed to strengthening the current structure of marriage, strengthening the family structure, and the policies that surround that structure of family. We think that is what is fundamental for Singapore, and in fact, we are amending the Constitution to strengthen that position.

Question: Minister, you have been on the forefront of this contentious issue, and you have spoken at great lengths. To put it simply, you are like the face of it. So, following the announcement that 377A will be repealed, what are the concerns and responses that you have received so far?

I am not the face of it. As I said, I advised Cabinet and the Prime Minister together with the Attorney General. But yes, I have spoken about it to many groups, but so have other Ministers. We have all gone out there, gotten feedback, explained our thinking, explained our position, and there is a lot more of this that needs to be done. We need to take the concerns seriously. I take the concerns very seriously, and I can understand the concerns that have been expressed by for example, religious groups, as well as non-religious groups, others, people on the streets as it were, who don’t have a particular religious viewpoint, but they don’t want the tone and fabric of society to change overnight. So, let’s look at these concerns.

I refer to a 2018 statement by the Presbyterian Church in Singapore. That statement, for example, says, and I am summarising – s377A should not be repealed as a moral marker, until and unless certain rights and guarantees are included in the Constitution. If you look at what they want: (a) Religious freedom and rights; (b) That there would be no legalisation of same-sex unions, adoptions by same-sex couples, and similar policies; and (c) Three, that the laws will not penalise and discriminate against those who do not support the homosexual lifestyle.

If you look at the statement that was released last night by the National Council of Churches in Singapore, after PM’s NDR speech, and again I am paraphrasing: (a) They are worried that there would be more contention and advocacy for civil unions, regardless of sexual orientation; (b) Our social policies on housing, education, adoption, advertising, film classifications – they don’t want any change on that; (c) Three, the religious freedom for churches to teach or counsel should be protected; and (d) Four, that people should be protected from “reverse discrimination” in workplaces if they do not support LGBTQ+ activism or culture in workplaces.

So, if you go back to the 2018 statement by the Presbyterian Churches – what are they asking? They are asking for safeguards to be in place, before s377A is to be repealed.

If you look at both statements, as well as the petitions and other statements that have been issued, I think I can summarise the concerns into four main areas:

•   First, concerns over whether there will be a shift in our laws on marriage, and the laws and policies that are centred on marriage, like  family formation, education, and so on;

•   Two, freedom of religion;

•   Three, pressure – they worry that there will be pressure to accept and conform to LGBTQ+ ideology in schools and workplaces; and

•   Four, they worry about cancel culture, that they will not have the freedom to express their views on sex, gender, marriage, and family, without being silenced.

Let me be deal with all four points. I think it is important that we deal with these points and be very clear where the Government stands.

On the first point, our policies on marriage, and other related policies centred on marriage – I have said housing, education, social policies – they are not going to change. In fact, we are going further. We are going to protect these policies from legal challenge, by amending the Constitution.

On the second issue, freedom of religion. The Constitution guarantees full protection for freedom of religion – that is absolutely safeguarded, and it is a cornerstone, an article of faith for us. People must be free to practice their religion, and people must be free to be non-religious, not believe in any religion if they do not want to believe in a religion or agnostic. It is a free country, they would be able to do what they want, in that context.

If you look at the Maintenance of Religious Harmony Act, or MRHA. I amended it in Parliament, it sets out clearly that people should not be targeted on the basis of religion. It, of course, applies both ways. If a religious group or member is attacked by a non-religious group, such as an LGBT group, action can be taken, and will be taken. Likewise, action can be taken under the MRHA, if a religious group, using religion, attacks a non-religious group such as LGBT groups. Both sides should have freedom to share their views. They can express their disagreements with each other, as long as it does not cross the red lines in the law. I made this clear in Parliament when MRHA was debated.

The third issue – pressure in workplaces and schools. Workplaces should be part of the secular space shared by all Singaporeans. They should not be places where people are compelled or pressured to participate in, or support, non-business related causes. Employees should not be discriminated against at work just because they hold traditional family values, or pro LGBT values.

The Ministry of Manpower (MOM) is looking at this issue, including :

•   Protecting employees from being penalised or discriminated against in many respects.

•   It is also looking at processes to protect those who report about workplace discrimination or harassment, so that people can feel safe about coming forward.

•   People tell us that employees feel compelled, particularly at foreign MNCs, to put up the Pride flag, for example. These are matters of conscience. There should be no compulsion or pressure, direct or indirect.

MOM is looking at these issues. It may be that we have to advise employers, particularly foreign employers, to be more careful and sensitive in Singapore. Don’t get me wrong – they are looking at this, but it does not mean that all these things can be in the law, for example, non-discrimination. But I think they are looking at all of it. Certainly, I think we do not want pressure or compulsion, both on the side of LGBTQ as well as on the side of religion. People should be free in their conscience. This is a country where many people are religious, and that should be respected.

On education – You have seen the statement that MOE has issued. I think essentially, they say that schools should also be safe spaces for all students. Education policies, including sexuality education curriculum, will remain unchanged. Sexuality education will remain secular, based on traditional values, and sensitive to the multiracial and multireligious make-up of our society. They have said that they will not tolerate bullying and cancel culture. Schools will partner with parents to guide children towards understanding, respect and empathy. Students should not be bullied because they have LGBTQ tendencies. They should not be bullied or ostracised if they do not hold pro-LGBTQ views, or if they hold religious views.

Fourth issue – cancel culture. In the feedback we have received, many are worried about being cancelled, and I take that very seriously. My Ministry, the Ministry of Law, has been looking at measures to deal with the harm caused by cancel campaigns. People ought to be free to express their views without fearing being attacked – on both sides. So, we plan to do something about this. The religious groups feel that their freedom to express their views, to preach, is being curtailed by groups which cancel them, harass them, attack them.

We cannot sit by and do nothing. People must have the freedom to practise their religion. Preachers must be able to preach. Likewise, as I said, if you do not hold pro-religious views, if you hold views which are pro-religion, you must be free to hold your views. So, we intend to do something about this. We have to look at the right boundaries between hate speech and free speech, in this context. We should not allow a culture where people of religion are ostracised, attacked, for espousing their views, or their disagreements with LGBT viewpoints. And vice versa, whether pro- or anti-LGBT.

Question: If you could, Minister, shed some light on the timeline? How soon will we see the repeal of s377A take effect?

We have been talking about this for some time. I spoke about it in Parliament several months ago. There has been a lot of discussions outside, with people, viewpoints have been taken, feedback has been taken, different ministries have been working, which is why you see the Ministry of Education putting out a statement. All the ministries are quite clear where the lines are, as a result of the changes announced by the Prime Minister last night.

The Government's views have crystallised after this period of intense feedback and discussions. Now, we are left to move, and the changes itself, in terms of legal drafting and so on, will not take much time. It is a question of how long internal discussions take, and I am not in a position to give you an answer on that right now. But I do not expect that it will be very long.

Question: Minister, what is your personal take on the resolution of this messy compromise? What does this mean for you as a Minister, and as a Singaporean?

In these things, there is collective responsibility. Cabinet members do not express their individual viewpoints. We take a position, we debate, we deal with it internally. But as I explained, you have to make a careful, logical assessment of the legal position. And you have to ask yourself what is the right thing to do, and then do it.

I have explained that taking these steps are not easy. It would have been far easier to have just kept quiet, leave it to others, leave it to the Courts and so on, let everything take its own course. But that is not what has made Singapore successful. What makes Singapore successful, and what I think will continue to make Singapore successful, is a Government that is looking at these issues, looking forward five years, 10 years, 15 years – what should our policies be, how should we structure our laws, what are the risks of challenge, what should be protected?

So, we say family is important, we have to protect it, and therefore we protect it. We say s377A is unlikely to survive a challenge, or there is a risk, a significant risk that it will not survive a challenge, and Parliament should do its duty by removing it, and it is also the right thing to do. So, you don’t just leave it alone, and leave it for the Courts. There are many aspects that go into it, and I think the messy compromise, society has changed, I think the status quo is not tenable.

Reporter: Minister, thank you so much for your time and perspectives today.

Minister: Thank you.