The thing about being the head of a government who is also the head of a political party is that all your actions are scrutinised through a political lens.
Prime Minister Lee Hsien Loong is persuasive when he said in his 2022 National Day Rally speech that there's a risk of Section 377A being struck down in the courts, on the grounds that it breaches the Equal Protection provision in the Constitution.
"We have to take that advice seriously. It would be unwise to ignore the risk, and do nothing," PM Lee said.
But what is of interest to political observers is that his ministers also addressed questions on the political impact of the move.
Deputy Prime Minister Lawrence Wong was asked by CNA if the People's Action Party (PAP) would pay a political price with the voters for repealing 377A, and he answered "that's not how we look at the issue".
Wong elaborated that that the government can't please everyone all the time, and it had to focus on doing what's right.
Law and Home Affairs Minister K Shanmugam said in his interview with Lianhe Zaobao and The Straits Times that the government is taking responsibility by dealing with the issue in Parliament, instead of being "politically expedient" had it chosen to keep quiet on the matter and let the courts deal with it.
But here's what I think -- repealing 377A and "safeguarding the institution of marriage" from court challenges may actually help the PAP win over socially conservative voters.
First of all, let's take a look at what PM Lee and his party are going to do.
- There will be a full debate in Parliament over repealing 377A.
- The debate will also include a move to amend the Constitution to protect the institution of marriage from court challenges.
- The whip will not be lifted from the PAP's Members of Parliament, as confirmed by Wong.
- Because of the above, and the PAP's parliamentary majority, it's all but confirmed that the amendments will be passed by Parliament.
Look at the second point again. Under the law, only marriages between one man and one woman are recognised in Singapore. That legal definition of marriage is contained in the Women's Charter and the Interpretation Act.
Definition of marriage will not be entrenched in the Constitution
Shanmugam clarified how this would be done:
"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, 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."
Contrary to what some have suggested about constitutional changes, it's clear that the government will not change the Constitution to say that marriage is between a man and a woman.
In the CNA interview, Second Minister for Law Edwin Tong said it would not be "appropriate" to entrench or enshrine that definition in the Constitution itself, as that would elevate marriage to the same level of fundamental rights.
Parliament will define what marriage means in future
But as Shanmugam pointed out, Parliament will still be able to define the institution of marriage, after the proposed amendments have taken effect.
He spelled out how this could happen, saying, "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."
In other words, there is clarity now that there is a roadmap for a political party to change the definition of marriage through parliament.
This is in line with what PM Lee said, namely that the courts are not the right forum to settle what is a political issue, and that such matters should be decided by lawmakers in Parliament.
He also spoke of inflamed tensions and polarising society if change is sought through litigation, which is by nature adversarial.
Future campaign issue?
I believe that the PAP's move will essentially "re-politicise" the issue of same-sex marriage. By protecting the definition of marriage from legal challenges, any further movement on the issue will take place in the political arena instead.
And as Shanmugam said, there is the possibility Singapore could introduce same-sex marriage in the future.
A political party that supports same-sex marriage or marriage equality could win the General Election as the ruling party and redefine marriage through a Parliament vote.
But the currently ruling party PAP has explicitly said that change will not happen as long as they remain in power.
Wong said in his CNA interview:
"Well, let me be very clear. The government will continue to uphold our family-centred policies. We are fully committed to that, and we will continue to uphold marriage as defined as between man and woman.
PM himself said this very clearly in his speech – the PAP government will not change the current definition of marriage.
So this will not change, this will not happen under the watch of the current prime minister, and it will not happen under my watch – if the PAP were to win the next General Election."
Both Wong and Shanmugam also made clear that certain policies such as housing and education that are linked to this definition of marriage will not change.
Will conservative voters have an incentive to vote for the PAP?
So why do I think this move will ultimately help the PAP with socially conservative voters? Because it seems to me that a line has been drawn in the sand.
Wong made clear that the definition of marriage in terms of laws and policies will not be changed, such as allowing gay couples to get married. He also made clear that if the PAP wins the next election, and he takes over as the next prime minister as planned, he won't change it either.
Therefore this gives a conservative voter — who doesn't want the definition of marriage to be changed — an incentive to vote for the PAP to keep it intact.
Now's a good time to remind readers that I'm not saying the PAP made this move with the intention of reaping any kind of political benefit, but there could be an impact at the polls.
Could be, says Gillian Koh
I asked Gillian Koh, Deputy Director (Research) at the Institute of Policy Studies, about whether PAP's move could help them with conservative voters. Here's her response:
"DPM Lawrence Wong suggested it by saying that the current PM and he will not allow for any wholesale shift in the legal definition of marriage and traditional concept of family under their watch, as long as the PAP is in power after the next GE.
He may have added this reference to the next GE just to sound modest rather than presumptuous about the PAP always being in power. Or he may have actually been putting it out there – that people need to vote for the PAP to maintain a system where the traditional definition of marriage is upheld. This would add a partisan angle to the issue.
As mentioned above, it may be that some existing party or a new party may actually take a partisan approach to the issue. Then it will really become a play for votes and certainly of the younger citizens.
It is not clear whether this would come at the expense of the conservatives but only if there is a party out there that will take a very conservative approach to its social agenda."
No, says Eugene Tan
I also asked Eugene Tan, former Nominated Member of Parliament and Associate Professor of Law at SMU, the same question. He disagreed.
"No, I don’t see it that way. I see it as the PAP making its stance clear that the 4G leadership is committed to safeguarding the institution of marriage as it is currently understood," he said, with the institution of marriage safeguarded and the status quo remaining unchanged.
He added that he doesn't think the electorate will take the plans of any party to legalise same-sex marriages seriously.
How will the Opposition react? We don't know.
Hence, the PAP has made its stance on marriage unambiguous, compared to the other parties in Parliament.
The Workers' Party and the Progress Singapore Party have decided to keep their cards close to the chest and not state their positions for now.
WP: "We will participate in the debate in Parliament on the repeal of Section 377A of the Penal Code and the proposed change to the Constitution relating to marriage, in light of the amendments that the government will table."
PSP: It will take part in the debate when it happens in Parliament.
One will have to wait until the next few parliamentary sessions to divine the intentions of the opposition. Will they all vote the same way? Will they abstain? Will they argue in favour of same-sex marriage?
In fact, Shanmugam recently challenged Hazel Poa, a PSP Non-Constituency Member of Parliament (NCMP), to reveal the party's position in the April 2022 sitting of Parliament.
In response, Poa said, "As the Minister has pointed out, there are two different camps with different views on this particular issue."She added, "And for us, within the party itself, we also have people with different views. So this is not an issue that we actually have a consensus on at this moment in time."
Shanmugam then responded, "There are many different ways of saying 'I don't know'. So I assume that Ms Poa is saying, either the party has no position, or they don't know what their position is."
Speaking to reporters on Aug. 21, PSP NCMP Leong Mun Wai said his party is happy that the government has come up with a clear position that appears to balance the interests of both sides very well, but added that the party will have to look at the details of the legislation.
Maybe there's no consensus in the Opposition camps
On the opposition, Koh said that up till this point, the WP has maintained that the party has yet to come to a consensus on 377A.
Koh said this could mean that there are divisions of opinion in the party, or divisions about whether to take a position, with the upcoming Parliament session an opportunity to "read the tea leaves".
On the PSP, Koh said that it seems like a "relatively more conservative party", and that it harks back to the past and refers to it like they were the "halcyon days".
She adds, "If there is any established party to do so, then I speculate that it may be the only the PSP that either makes an outright argument against repealing Section 377A or for a direct reference to the traditional concept of marriage in the Constitution."
Tan said he hoped there will be bipartisan consensus when it comes to the vote on the repeal and the constitutional amendments.
"The temptation to do more for the institution of marriage is there but I sincerely hope MPs recognise that the state must take an even-handed approach on such contentious matters. We cannot marginalise a minority group.
Instead, I hope the MPs will use the debate to help forge a societal consensus on how Singaporeans can live and thrive despite their deepest differences."
Some time to go
I know the next general election could be some years away (November 2025 at the latest), and voters have concerns other than marriage equality.
In a poll conducted after PM Lee's speech, out of 600 respondents, 46 per cent had "no opinion" on 377A repeal, a plurality of the vote. The rising cost of living and health issues were their main concerns, The Straits Times reported.
But the voters of the future may view marriage equality as an election issue.
The flip side of having a party stating that it does not support same-sex marriage, is that it gives an incentive for voters in favour of marriage equality to vote for a different party who does support it.
So while CNA and The Straits Times asked the ministers about a potential political price paid by the PAP, they may have assumed conservative voters would "punish" the party at the polls, for repealing 377A.
I do not think it is as straightforward, and much will depend on how the opposition parties will respond too.
Top image by Mothership.