Constitution of the Republic of Singapore (Amendment) Bill & Penal Code (Amendment) Bill — Speech by Jamus Lim

Mr Speaker, as members of this House executing our duties in Parliament, we simultaneously hold three distinct identities. We are, first and foremost, representatives of the people that voted for us. In my view, this is our utmost responsibility: to properly capture and reflect the views of our constituents. Second, we are members of a political party, who were likewise elected to formulate policies for our nation. For the Workers’ Party, our mandate—as loyal opposition—is to provide alternative views and constructive critique of the ruling party’s ideas and proposals. And third, we are of course individuals, who carry our own beliefs and convictions.

Rarely is there confluence in these three identities, which results in us having to make a reasonable effort at balancing between different preferences, and exercising compromise. But this is not necessarily as difficult as it sounds; for esoteric bills, our electorate often expects us to do our homework, and choose what is in the best interests of the country at large; hence, they may not hew to strongly-held views of their own. At other times, there is bipartisan consensus on how best to proceed, and so our interventions in Parliament are limited to flagging points of concern, but the Workers’ Party nevertheless votes alongside the ruling party.

In a matter such as the repeal of Section 377A and the attendant proposed constitutional amendments, however, it would appear that there is not only an intractable divide between the different interests that we represent, but our own personal convictions may also play a role in the choices we are forced in make.

In my speech, I wish to explain why I believe these disparate views can be reconciled, and how this leads me to vote the way that I will.

A real versus prospective fear…

In the many letters written to me by residents of Sengkang, those that have expressed their concern over the repeal of 377A have, almost uniformly, cited their reservation over how a repeal would open the floodgates to revisions to the traditionalist interpretation of marriage.

This concern has not just been limited to those who are more religiously inclined. I have spoken to residents who would otherwise hold no strong views on 377A, nevertheless underscore their wish that the heterosexual definition of marriage be, somehow, protected.

To be clear, this is a prospective fear: one based on how the repeal of 377A is a slippery slope; once the law is removed, the floodgates are open, and all manner of permissive laws become possible. In contrast, 377A is currently in the books, and is consenting relations between two men is currently a crime. This is no longer prospective, but real. In principle, a man engaged in same-sex relations could be jailed, if the letter of the law if followed.

The repeal decision is thus a tradeoff between the removal of a tangible, actual threat of imprisonment, versus a perceived, potential concern over how repeal would undermine marriage. It seems clear to me that there is not, and cannot, be a genuine equivalence between the two.

…and why nonenforcement is not enough

The usual pushback against claims that 377A constitutes an actual violation of the law is that 377A is not enforced, and—on the basis of court judgments—will not be, unless otherwise instructed by the attorney general. This suggests that the article is merely a legal relic, one which has no bite, and hence any fear is similarly ephemeral. Why not the existing status quo compromise, then?

It is true that the courts have previously ruled that 377A will not be prosecuted. Even so, sexual relations between men remains, on the books, an arrestable offense. Think about what it means for the status of rule of law in our country if we insist on instituting laws that simultaneously do not matter in practice. How many more de jure issues also do not matter, de facto? If we wish to make a slippery slope argument, this strikes me as a far slipperier one.

Furthermore, we should recognize that even an unenforced law will have effects on individuals and society.

Think of the symbolism behind what a law, any law, implies. Suppose, for a moment, there was a law prohibiting relationships between individuals of different races, and further suppose that a similar legal precedent and political compromise exists, in that those who are in such a miscegenated relationship are assured that they will never be prosecuted. Is it fair to expect those who are in a mixed-race relationship to accept the assurance that such a sword of Damocles hanging over their relationship doesn’t really mean anything?

To take the argument further, should we expect that these individuals will feel that they are a fair and equal part of society, when society has deigned it permissible to have a law that, even while unenforced, nevertheless explicitly condemns against their behavior? Can we expect such individuals to feel that they are truly accepted as a part of Singaporean society, when Singaporean law declares them to be criminals?

The status quo already embeds a cultural war, even if we don’t admit it

Some would suggest that Singapore is different. It is an Eastern society, with different cultural norms and practices. They argue that a repeal of 377A amounts to bringing in the polarization and cultural wars—so prevalent in the seemingly dysfunctional democracies of the West—back home.

I agree that Singapore is different. Our cultural norms skew toward greater social conservatism, and society stresses compromise for the sake of harmony, rather then the contentious and often raucous activism favored by civil society and activism in the West.

But an untenable status quo, however entrenched, does not imply that all is well under the surface. For those who keenly feel the yoke of discrimination, suggesting that we should keep things the way they are—simply because that’s how it’s always been—is more than simply benign neglect; it is an insult to their plight, to the burden that they have been bearing, however silently, until now. It is like telling a prisoner that their desire for freedom is an attempt to stir up unrest in jail.

Why love should not be criminal

As a man attracted to the opposite sex, I can never fully empathize with what it means to develop feelings for someone of the same gender. But when I was a hot-blooded teenager, I had a dear friend, who turned out to be gay, explain to me what his world was like. The analogy which has stayed with me since. Just imagine, he said, if the way you feel about women—the strong, unrelenting attraction when you first meet, the wish to share one’s innermost thoughts and feelings with them, the deep desire to be with that person for the rest of your life—imagine if all that was not the natural way of things. Imagine that society deemed my attraction to women as not just abhorrent, but also judged intimate expressions of my love to be criminal.

This isn’t too far from other historical legacies where the law deemed certain forms of love to be illegal. As recently as the 1960s, interracial relationships were limited in some form in as many as 31 U.S. states, as it was in Nazi Germany and apartheid South Africa. While I am not equating the two, my point is that my own marriage as well as that of my parents—which occurred between two different ethnicities—would have fallen afoul of the law.

The usual retort to such scenarios is that it is contrived; humans are not animals, after all, and can always exercise self-restraint. Some argue that because same-sex attraction is ultimately psychological, it can be overturned, with intervention and counseling.

Perhaps. But I am not here to question the natural biological order. After all, it is a physiological reality that asexual reproduction among mammals is impossible, and hence the male-female pairing is necessary to ensure the continuation of any species. Even so, for certain individuals, such attractions are deeply embedded in what they regard as innate behavior.[1]

For these reasons, I support the repeal of the discriminatory law that is 377A.

Why the fear of a slippery slope is unjustified, but understandable…

Even so, I also believe we cannot ignore how many in our Asian society continue to equate marriage and partnership to one between a man and a woman. This view is held not only those who are religious—by which I mean not just by groups that have been more vocal about traditional marriage, such as evangelical Christians and Muslims—but, based on my conversations with residents in Sengkang and beyond, also those who do not strongly profess any faith.

For these Singaporeans, the fact that marriage must involve a union between a man and a woman goes beyond a legally-binding contractual relationship. It is a fundamental belief, a worldview. This sense is so deeply ingrained that they are not only are unable to accept the principle of same-sex marriage; for them, were such marriages to become recognized, they—perhaps paradoxically—would feel that society is not only no longer representative of who they are, but some may even go as far as to feel that it has turned against them. It is secondary that heterosexual norms remain the firm majority; many will feel is a sense of exclusion and victimhood.

As it turns out, this worldview is also remarkably pervasive. While I do not have comprehensive data, I have had many conversations over the course of the past few months, and I would be willing to venture that a significant majority of Singaporeans—including those in Sengkang, including otherwise liberal-minded spirits, and even including those who are otherwise sympathetic to the repeal of 377A—carry this perspective close to their hearts.

…if we put ourselves in their shoes

It is important that we do not dismiss this worldview as one emanating from an oppressive majority, finally receiving their comeuppance. This is because I actually believe that such sentiments—even if seemingly misplaced—are genuine.

When I was a teenager, I took my Christian faith very seriously—to the point where I even harbored ambitions to be a missionary. While I am no longer as zealous today as I was, I can fully empathize with how it is like to hold fast to a set of tenets and beliefs that so completely shape one’s worldview that it would be wholly inconceivable to expect that challenges to it would not induce visceral resistance.

To reiterate: this is not a sentiment that is limited to those who are religious. It is one that is accepted by broad segments of Singaporean society, almost to a point where it is regarded as self-evident among these groups. And for those within this group, their sense of identity and meaning is as much tied to heteronormativity as those who identify as homosexual tie theirs otherwise. Just as important, threats to these identities affect their behaviors and welfare.[2]

It is for this reason that I do not see a decision to alter the constitution as essentially a compromise for the sake of political expediency, necessary for the repeal of 377A. Rather, it is the manner by which the state echoes what society, in general, believes in.

Why Parliament is the forum to decide public policy

PM Lee had explained in his National Day Rally speech that challenges via the judicial system were becoming more insistent, and that we did not wish to go down a dangerous road of judicial activism.[3] He also explained why decisions on the repeal of 377A and—perhaps more important, constitutional amendments—should be determined in the legislature. He was articulating, in this specific instance, the principle of de facto parliamentary sovereignty, a notion that others have observed applies to Singapore.[4]

Even so, as Workers’ Party chair Sylvia Lim has articulated, there may be potential legal lacunae that passing the constitutional amendment may entail. I am also aware that the amendment will continue to discriminate—albeit to a lesser extent—against those who wish to normalize their same-sex relationship, especially in matters of public policy.

I will sidestep this question of jurisprudence—where I am very sympathetic to the views of Ms Lim—and instead offer my thoughts on why I believe that this particular issue of broad societal concern should be decided in the forum designed to deliberate such matters, which is Parliament. I will also explain why I believe that a social institution such as marriage may reasonably be included in a foundational document, such as the constitution.

Keeping in mind that representative democracy will always be imperfect,[5] it is nevertheless the closest system we have that reasonably aggregates the preferences of our people at large. And in our time, the significant majority of Singaporeans have articulated their preference for a clear reassurance that the institution of marriage be protected.

Could this justify a constitutional amendment, then? From my perspective, I do not see why not. Constitutions are live documents, meant—as Thomas Jefferson once said—to serve the present generation.[6] They embody the rights of nature, of society, and of government; these are essential principles of constitutional design.[7] Consequently, it is reasonable that our Singaporean Constitution captures the key institutions that comprise society, which in my view includes the institution of marriage.

Faithful representation

Mr Speaker, as members of Parliament, I believe that it is paramount that we carry out our duties of representation faithfully, echoing—to the best of our ability—the views of the majority of our constituents, even when this position may differ from what we, individually, may hold. It is in that light that I see a vote in favor of a constitutional amendment that codifies the institution of marriage as a reflection of the conversations I’ve had with my diverse constituents on this matter.

Keen observers will nevertheless have noted that the constitutional amendments proposed, however, merely refer to how the legislature may define marriage, leaving the specific definition indeterminate. Should the amendments be more specific? This is where I depart from those who would go further, those who are asking that a heterosexual definition of marriage be hardcoded into the constitution. In contrast to the more fundamental notion of the institution of marriage, its definition does not strike me as an unwavering principle that belongs to a constitution. It is therefore appropriate that such a definition be clarified only in subsidiary legislation.

Public choice in a democratic republic

Almost two centuries ago, the French political philosopher Alexis de Tocqueville documented his observations on the then-nascent state of democracy in the United States.[8] He shared his admiration for the democratic project as it unfolded in America. Even so, he pointed out an inherent tension in the power of democratic majority opinion, and in particular, he highlighted what he observed to be a “tyranny of the majority.”

Tocqueville did not much propose a resolution to this conundrum, beyond suggesting—much like his contemporary, English philosopher John Stuart Mill—that appropriate respect for individualism and liberty could offer a way out of this conundrum. Importantly, these thinkers believed that it was vital for each society to arrive at their own definition of the limits that public opinion would have over individual lives. One could argue that democratic republics—of which Singapore is one—are the practical manifestation of this compromise between individual rights and popular opinion.

We stand, today, at a similar precipice, albeit in our own Little Red Dot. The way I see it, the repeal of 377A is the way that our society respects individual rights, while enshrining the institution of marriage within the Constitution is how we respect the values of the majority. Hence, the decision we make today is not about a political compromise, as some have suggested. It is also about striking a balance between the principles of individualism and majoritarianism.

As a republic, we are required to do right by our people, all our people—we have it right there in our pledge, a commitment to “justice and equality”—which is why fundamentally discriminatory laws such as 377A should no longer be allowed to stand. But at the same time, our commitment to “build a democratic society”—also in our pledge—calls on us to affirm our common values, such as marriage, that make us one united people. That is why I will vote yes to both of these amendments today.

Delivered in parliament on 29 November 2022

[1] There is pervasiveness of same-sex activity even in the animal kingdom; homosexual relationships have been observed in groups as diverse as gentoo penguins, scarab beetles, flying foxes, bottlenose dolphins, and even the king of the jungle, the lion.

[2] Akerlof, G. & R. Kranton (2000), “Economics and Identity,” Quarterly Journal of Economics 115(3): 715–53.

[3] In other democracies where judicial activism has been used to advance public policy, judgments have resulted that may not always as apolitical as we may wish for them to be.

[4] Chng, K. (2019), “The Theoretical Foundations of Judicial Review in Singapore,” Singapore Journal of Legal Studies 2019: 294–315; Chye, D. (2021), “Is Singapore’s Constitutional Supremacy an Illusion?”, Singapore Law Review 13: 1–11; Thio, L-A. (1993), “The Post-Colonial Constitutional Evolution of the Singapore Legislature: A Case Study,” Singapore Journal of Legal Studies 1993: 80–122.

[5] Or any voting system, for that matter; this is the insight of Arrow (1951, 2021), Social Choice and Individual Values, 3rd ed., New Haven: Yale University Press.

[6] Thomas Jefferson, in drafting the U.S. constitutions, made the remark to his co-founding father, James Madison, that “no society can make a perpetual constitution… [as] the earth belongs always to the living generation… [and t]hey may manage it then, and what proceeds from it, as they please.” See Jefferson, T. (1958), The Papers of Thomas Jefferson 15, Princeton: Princeton University Press, pp. 392–8.

[7] Brownson, O. (1866), The American Republic: Its Constitution, Tendencies, and Destiny, New York: P. O’Shea.

[8] de Tocqueville, A. (1835, 1994), Democracy in America, trans. H. Reeve, New York: Penguin Random House.