Shanmugam calls out WP for lacking official position on 377A, questions how it would function 'if in charge'

He feels that the party not having an official position is the equivalent of "wanting to speak without taking responsibility".

Fiona Tan | Lee Wei Lin | November 29, 2022, 09:50 PM

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[Editor’s note, Nov 30, 12:10am: A previous version of this article inaccurately reported the voting positions of the MPs. We have since corrected the error.]

Law and Home Affairs Minister K Shanmugam gave his closing speech on Nov. 29 after Members of Parliament (MPs) debated on the bills repealing Section 377A of the Penal Code and amending the Constitution to protect the definition of marriage from legal challenges.

Shanmugam: WP has no official position on 377A debate

Shanmugam pointed out in his speech that the Workers’ Party (WP) has no official position on the 377A issue. They neither support nor oppose the repeal, he noted, and do not support the Constitutional amendments to protect marriage.

Shanmugam concluded from the WP MPs' speeches that the WP had a debate within themselves and did not decide on a party position.

    He then questioned how will “such a team function if they are in charge”.

    In the final vote, two WP MPs abstained from voting on the Constitutional amendment, with two WP MPs voting against the repeal.

    In his clarifications to Shanmugam, WP chief Pritam Singh said that six out of nine WP MPs were for the repeal of Section 377A, while seven were for the constitutional amendment, with two abstaining.

    Says MPs are free to speak even if Singh did not lift party whip

    He also took issue with how Singh called the lifting of the party whip as democratic and was done “to allow for a full and honest representation of all views”, and said it is factually untrue.

    Shanmugam said:

    “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.”

    He added that PAP MPs have “reflected the concerns, the fears, and pain” of those from different religious groups and LGBT groups, among others.

    Shanmugam opined that parties must have a view on important questions that come before Parliament, and be honest when discussing what is good for Singapore. On top of that, they have to be accountable to the electorate for their decisions.

    He said he feels that the WP does not want to take a stand on 377A and “hopes to be all the things to all men and not too much of anything to anyone”.

    He later added, "To say the party has no position allows the WP MPs to make speeches supporting all sides without having to make a decision, and and be held responsible for that decision."

    “Deal squarely with the problem, and not abdicate our duty”

    He referred to his Nov. 28 speech, where he explained that 377A should be repealed because it is the right thing to do, and the “significant legal risk” of it being struck down by the courts if the status quo is maintained.

    He listed three points which are “clear”:

    • 377A is at risk of being struck out for being unconstitutional.
    • If 377A is struck out, then there is a further risk that the definition of marriage could be challenged as well.
    • If this happens, there are risks that housing, education, media content policies, and multiple other policies could all be challenged.

    As nobody, including the WP, has questioned these risks, he asked:

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

    Shanmugam added, "The position with 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."

    He asked those in Parliament to “take a position, to deal squarely with the problem, and not abdicate [their] duty”. By not doing so, he continued, is the equivalent of “wanting to speak without taking responsibility”.

    He concluded his speech with: “On this difficult matter, we will do our duty and take responsibility for holding society together.

    Cancel culture

    Shanmugam also addressed some of the MPs' concerns, like "cancel culture".

    This was raised by Chua Chu Kang MP Zhulkarnain Abdul Rahim, who asked if the government plans to deal with cancel culture, and if there will be a consultation and feedback process. Other MPs also spoke up about their worries over cancel culture.

    Shanmugam replied that people should be free to stand by their beliefs and express their views with due respect for the feelings of others without fearing being cancelled.

    However, this was not the experience for many church groups, who shared that they were shouted down and felt bullied after they expressed their views, said Shanmugam, who added that children in schools also feel this.

    He said "this is not right" and the Ministry of Law is looking at measures to deal with the harm caused by cancel campaigns online.

    "We are studying the matter. We are consulting different groups as part of our review. We want to try and strike the right balance, [but] 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."

    Past 377A convictions and their records

    Shanmugam responded to Louis Ng, who wanted to know if there were any individuals with existing conviction records under Section 377A, and how these records would be dealt with if the Bill to repeal was passed.

    According to Shanmugam, there are some individuals who have been convicted of violating 377A. Most of the cases involved non-consenting victims, acts against minors, or sexual acts committed in public, all of which continue to be offences even after the repeal.

    The criminal records for these offences are dealt with under the Registration of Criminals Act.

    Under the Act, some (not all) offences are automatically spent after a period of time. For specific offences, and where the criteria are met, persons who are disqualified from having their conviction automatically spent can apply to the police for the record to be considered or rendered spent.

    However, with regard to egregious offences, like non-consensual acts or sexual acts against minors, the records are unlikely to be treated as spent.

    With that said, Shanmugam noted that there were a "small number of individuals" that have been purely convicted for consensual, private, homosexual acts between adults between 1998 and 2007.

    He said he has instructed the relevant ministry to consider how the records of these individuals can be rendered spent.

    Article 156 and its four clauses

    Shanmugam addressed the introduction of Article 156 into the Bill to amend the Constitution, addressing the concerns raised by WP chairman Sylvia Lim, PAP Murali Pillai and WP's He Ting Ru.

    Article 156 has four clauses:

    1. Clarifies that Parliament has powers to make laws to define, regulate, protect, safeguard, support, foster, and promote the institution of marriage;
    2. Provides that the government and public authorities may, in the exercise of their executive authority, protect, safeguard, support, foster, and promote the institution of marriage;
    3. Protects laws defining marriage as a union between a man and a woman from being invalidated by Part 4 of the Constitution (Fundamental Liberties);
    4. Protect laws and policies based on a heterosexual definition of marriage from being invalidated for that reason by Part 4 of the Constitution.

    Response to Lim

    "Ms Lim suggested that there is no real need for Article 156 one and two since the Constitution already vests legislative power in the legislature, and the executive authority in the government," Shanmugam said, and addressed this.

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

    They also make it clear that passing laws and having policies based on the current definition of marriage are constitutionally valid and help contextualise Articles 156 (3) and (4).

    Shanmugam added: "We have been advised by the Attorney-General's Chambers that Art 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."

    "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."

    Response to Murali Pillai

    Murali asked why the whole of Part 4 of the Constitution (which enumerates fundamental liberties) was excluded from Article 156 (3) and (4).

    In response, Shanmugam said Article 156 (3) (a) protects the heterosexual definition of marriage itself from invalidation by Part 4.

    He used the example of how arguments about 377A had 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 and that it is possible for other "creative arguments" to be made about the heterosexual definition of marriage.

    "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?" he said.

    As such, it is necessary to exclude Part 4 in its entirety to properly protect the heterosexual definition of marriage from challenges in court as they cannot predict what possible arguments might be made against the marriage definition in the future, Shanmugam said.

    "But it's not a carte blanche. What is protected is quite precise, it's the heterosexual definition of marriage. That is because just as we have been clear about repealing 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."

    Shanmugam also acknowledged that LGBT persons also have and come from families, and have parents, siblings, etc.

    "So families are not exclusive to non-LGBT persons. So let's remember and acknowledge that these things are not binary," he said.

    Back to Article 156, Shanmugam explained that if a future Parliament tried enact "outlandish definitions of marriage", those laws would not be protected.

    "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.

    Government will still have to justify why giving benefits to only people with a certain surname is a relevant consideration and I think lawyers will understand it will probably not be accepted as a relevant consideration."

    Judicial review

    Shanmugam went on to address a point made by Lim and He, both of whom are of the view that judicial review under Part 4 should be fully available without restriction.

    He responded that Article 156 takes two specific issues – the heterosexual definition of marriage and the ability of Parliament and government to make laws and policies based on this definition – out from the courts’ province, and keeps them entirely within the province of the elected branches, which the government believes is necessary.

    "Ms Lim 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."

    Shanmugam said this is the choice before the House, whether Parliament deals with such issues, or leave it to the Courts and have that change "imposed" on society, as has happened in other countries.

    Top image screenshot from Ministry of Communications and Information/YouTube