Shanmugam refutes suggestion that repeal of S377A is a political compromise

The minister also spoke at length about why such a matter is being decided in Parliament instead of the courts.

Matthias Ang | September 28, 2022, 05:46 PM

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The government is "deeply committed" to the definition of marriage in the Women's Charter, Law and Home Affairs Minister K Shanmugam said on Sep. 26.

Shanmugam was speaking at a panel discussion on the case of Tan Keng See versus the Attorney-General and Section 377A of the Penal Code.

However, letting the question of the repeal of Section 377A be decided in Parliament instead of the courts does not represent a "compromise".

Shanmugam summed up the position of another panellist who seemed to suggest that a repeal in Parliament may represent an “ousting” of the jurisdiction of the courts, and asked why the decision wasn’t left to the courts.

Shanmugam said:

"I think the thinking behind that is really that hopefully the Courts will strike it down. But actually, if we accept that this is the province of Parliament…

This is a matter for Parliament, this is not meant for the courts. The courts should not be deciding what is and what is not a marriage. If S377A is a matter for Parliament, marriage is even more a matter for Parliament. And this government has been so careful in the way we are proceeding with the amendment, because we respect both the democratic process, and we respect the courts."

In response to the assertion that the repeal may be a political compromise, Shanmugam said, "We are not in the business of compromises."

Responding to a comment that protecting the definition of marriage is a political compromise

Shanmugam was speaking at a panel discussion on the case of Tan Keng See versus the Attorney-General and Section 377A of the Penal Code.

He was responding to comments raised by Professor Michael Hor from the Faculty of Law in the University of Hong Kong, who said that the coupling of section 377A's repeal with a so-called "marriage amendment" left a "strange taste" in the mouth.

Hor elaborated:

"One line of argument which comes out very often is that if we recognise same sex marriage, then that will somehow destroy the whole idea of traditional marriage.

But I just wanted to say that I don't buy that, because we do have different conceptions of marriage in existence already. We have Muslim polygamous marriages. Why does that not destroy the monogamy of modern Muslim marriages?"

Hor added that what appeared to be on the government's cards is a constitutional ouster clause, to prevent the courts from reviewing the constitutionality of the definition of marriage, which currently excludes same sex marriage.

The professor then made the following point:

"So I begin to ask what possible reason could there be to protect such a suspect provision? But I can perfectly understand the political need to compromise, and I suppose, to try and make sure that nobody goes away empty handed. I understand that politically."

However, Shanmugam rejected that.

Hor's argument shows why some who are 'live and let live' types oppose repeal of 377A

Elaborating further on why Singaporeans are not ready for a major change in the tone of society, Shanmugam said that Hor's arguments illustrated why many people who have adopted a "live and let live" approach are nevertheless opposed to the repeal of S377A.

The minister explained:

"Because they are precisely worried about these further arguments – that the day after, there will be an argument of what is a marriage; the day after, there will be, let's have same-sex marriages; the day after, there will be issues on adoption. This is what a lot of people are concerned about."

Shanmugam also highlighted that it is for such reasons that these are political issues and therefore ought to be dealt with in Parliament. He reiterated:

"What is right and what is wrong, I can't speak for the generation 10 years, 15 years, 20 years from now. This government is committed to this definition of marriage. We have given, in very clear terms, where we stand. The next Prime Minister has indicated where he stands, and his Cabinet stands. That's what we can say. And it will be debated in Parliament."

Shanmugam: Government is not ousting the jurisdiction of the courts

This brought up Shanmugam's next point that the government is not ousting the jurisdiction of the court.

"All we are saying is: If you want to argue this, come into Parliament," he said.

The minister then gave the following reasons for why people might want the definition of marriage to be handled in court.

"Because people recognise that this government has a substantive majority in Parliament, and because it has made clear its stand, I can imagine those who would like to see the change in the definition would prefer that the matter be dealt with in the Courts. They stand a better chance in the courts than they stand in Parliament."

However, going through the courts is not democracy, he said, which is why the matter is being dealt with Parliament instead.

Run in the general election if you want to change the definition of marriage

Shanmugam then added, "And if you believe Singaporeans want something else, mobilise, and let Singaporeans decide. So, we're not into compromising."

This essentially means entering the General Election with a manifesto that touches on the definition of marriage, he elaborated.

"If anybody wants to change the definition of marriage, if that's what Singaporeans want, somebody has got to organise themselves, put it on your manifesto, go into the General Elections arguing that this is what you stand for, win the elections, change the law. That is how a democracy ought to work."

Not suggesting that people run on a single issue

When asked by a member of the audience if he was encouraging people to run on a single issue, he replied:

"Absolutely not. I am not suggesting that people run on a single issue.

But I am saying this is a political issue to be dealt with in Parliament, and if people believe that the majority of the population want a change, or you believe that it is your duty to convert the majority of people to want a change, you will have a manifesto on economics, you will have a manifesto on housing, your manifesto will cover a broad variety of things. And it can cover this as well and say, we stand for this, and fight the elections."

Shanmugam then posited that the real point of the question might be whether the PAP is listening to people who want a change, given the majority that it holds in Parliament.

Govt takes position on what it believes benefits the entire country

Here, the minister said the government is grounding its decision based on what it believes is best for the country.

"Some people would like this definition of marriage to change, and they either express their unhappiness that we are removing the legal challenge, because they see that as more fruitful than trying to persuade the PAP.

But since we are now going to take that away, then some other people are expressing their unhappiness – You, the PAP, why don’t you listen more to us? It is not a question of listening to one group or another. It is a question of Singapore, as a whole.

We listen to everybody, but in the end, we have to say this is what we believe in. Not what we believe in for ourselves, but what we believe in for the benefit of the country."

Top image via K Shanmugam/Facebook