Constitution of the Republic of Singapore (Amendment) Bill & Penal Code (Amendment) Bill — Speech by Leon Perera

Mr Speaker sir, I’d like to start by asking a simple question. What if you were born into a world where your actions mark you out as being in a minority because most people don’t do what you do. An unpopular minority. What if you were able to live your life in the society you were born into. But at the back of your mind, you could not get over this niggling feeling, this fear, that one day the majority might turn against you, might bully you, might discriminate against you or worse. Each of us can close our eyes and imagine that we live in such a world.

And then imagine a different world, a different situation. Imagine that you hold dearly to a viewpoint as a matter of conscience, a viewpoint that others believe is deeply offensive and hurtful, even though to you it is a view that does not call for hurt towards any other human being. Rather it is a view about what sorts of behaviours should be held up as moral markers in society. Imagine that you cannot speak about the point of view that you hold on pain of being cancelled, abused or attacked on social media; or worse. Each of us can close our eyes and imagine that we live in such a world too.

What is at stake

Proponents of either side in the 377A debate may identify with either one or the other scenario. Or perhaps some may identify with both scenarios at once.

This is what is at stake in this debate. Are we to be divided between people who cherish the freedom to act in a certain way versus those who cherish the freedom to espouse views that are deep matters of conscience – and never the twain shall meet? Will this be an unbridgeable chasm in our Singapore?

We have seen what such divisions about values can do in other countries. We can look at the culture wars in the USA for example, an oft quoted example where differences in values, often with a religious dimension, have become political and polarising.  Another example is Turkey, where differences in values with a religious dimension have had huge political ramifications in the past and still do.

Politics is and should be about the contest of ideas. Robust, respectful debate about what is best for a country is a good thing, as most Singaporeans would probably agree these days. The truth, what is best for our country in our time emerges from such disagreement. Other things are needed for political progress. But there can be no progress without respectful, robust public debate.

But major political divides around values, around matters of conscience and religion, are a different matter. Such debates are often impossible to settle with reference to an agreed set of facts. 

What unites us

So as we chart a path forward on these issues before the House today, before the country today, it is worth recalling a few truths that almost no one would disagree with on either side of the questions before us. Let’s recall a few things that unite us.

Firstly, Singaporeans will have to decide these debates ourselves. The touchstone in our hearts should be what is best for and what is possible in this country we love, not some other country we know about.

Secondly, I believe that no one in this debate is calling for the active enforcement of 377A. I know that this is the case for my colleagues in the Workers’ Party who have a different view from mine on 377A and with whom I have had many lively and meaningful discussions, from which I have learnt a great deal. I suspect that this would be the case for all other members in this House, who can be taken to represent the political mainstream.

Let’s stop and reflect on that for a second. That is hugely important. No one is saying discrimination is OK. No one is saying bullying is OK. No one is saying violence is OK.

This is what unites the vast majority. Some on the fringe on either side may not agree. But no one in the mainstream disagrees. Despite our worst fears, in my humble opinion sir, the middle ground on this issue is strong.

And Mr Speaker sir, given that no one is calling for the active enforcement of 377A in this debate, as we move on to unpack the issues, we must hold fast in our hearts to that realization – because it is a truth that unifies and heals and strengthens.

So what then is at stake if it is not practical enforcement? What is at stake is the existence of 377A on out statute books as a moral marker. As a symbolic marker. And, as I said in my recent speech on national symbols, the debate is not less important for that reason. It is far from trivial. It is important. Because symbols matter.

What divides us

Mr Speaker sir, what divides us in this debate is whether to keep or throw out 377A in our body of law.

But I would like to argue that there is another issue that divides us which is a subtext to the debate, a subliminal factor, if you like.

And that is the concern that if 377A is repealed and that moral marker is no longer, will those who do not view LGBTQ relationships as being consonant with their own personal values – will such people be “cancelled” from expressing their view? Will the expression of their views, say as religious views for example, be considered to be acts of hatred and discrimination?

In explaining my own vote today, I would like to address both these issues in turn.

Lifting the whip

Before I do so, I would like to record my thanks to the Leader of the Opposition for lifting the Whip in this debate and thus allowing Workers’ Party MPs to speak and vote according to their conscience and deeply held values.

The Workers’ Party MPs do have a majority view.

But I support the right of each MP to vote according to their conscience on retaining or repealing 377A as a moral marker. You don’t get an issue that is more entwined with conscience than this, Mr Speaker sir. Yet, as I said earlier, no one in the WP is calling for 377A to be actively enforced.

My view on 377A as a moral marker

The rightful place of the law in policing private acts between consenting adults

Mr Speaker sir, I would like to move on to my own view on repealing 377A. I support the repeal. First, I would like to talk about the rightful place of the law in policing private acts between consenting adults.

My own view is that there is a public sphere where the law has the right to intervene in private behaviour that has public consequences, even when that private behaviour is consensual on the part of all participants. For example, we have the offence of statutory rape where sex with a minor is criminalised. The minor may have consented but the law recognises that the minor does not have the maturity to meaningfully consent. I agree with this. Most of us would.

But my own view is that the law has no place to intervene in private behaviour among truly consenting adults, provided there is no other public consequence thrown up.

Sir, I have received feedback from a number of Singaporeans, including my constituents, who believe that consenting LGBTQ relationships do have such public implications. For example, some have made points about public health, some about our ability to reproduce as a nation, some about the undesirability of importing liberal values from the West, and so on.

However, let’s recall – this is a debate about keeping or throwing out 377A as a symbolic marker, not about actively enforcing it, where there is no disagreement.

If we retain 377A as a symbolic marker, should we also introduce other laws into the statue books as symbolic markers, without enforcement – such as laws encouraging healthier sexual behaviour or laws encouraging Singaporeans to have enough children to lift our Total Fertility Rate or laws to oppose liberal cultural ideas? I do not think we should and I do not believe anyone is calling for this. Therefore, by the same token, there is a case to repeal 377A as unnecessary. Because symbolic markers are not inserted into our body of laws for other issues of importance.

And also because free and respectful conversation about symbolic markers can and should continue completely independently of the law and criminal penalties. Such respectful conversations have a place. I shall return to this in a minute. There are other, better ways to register our views on matters of conscience – ways that are pursued outside of the realm of laws and criminal penalties.

Good law versus Bad law

My next argument for supporting a repeal of 377A is that retaining a law that is not actively enforced based on the word of the government of the day is unsatisfactory and dangerous. No doubt the current government has declared that it will not proactively enforce 377A and the Attorney-General has said that the Public Prosecutor will hew to this.[1]

But this leaves the door open to a future government and AGC to reverse this stance.

More importantly, such an approach to the law places too much power in the hands of the government and AGC to decide what laws should be enforced and what laws should absolutely not be enforced. It leaves too much to prosecutorial discretion and too little to the rightful province of Parliament in making these laws and the Courts to interpret them.

To keep a law that has a serious impact on the lives of many Singaporeans on the basis that it is a marker but will not be enforced by the current government is not, in my opinion, how we should go about making good laws.

Markers can be created and conveyed respectfully in other ways without incorporating them into our laws.

My view on free speech

Which brings me to the last part of my speech on 377A. The part that addresses the sub-text – will removing 377A mean that in the wider society, those of a religious persuasion cannot express their views freely about LGBTQ relationships, which may be proscribed in their religious faiths?

Sir, the freedom of religion is protected under our Constitution. Article 15 protects the right of each Singaporean to profess, practise and propagate their religion.[2] Freedom of speech is also protected by Article 14 (1) of our Constitution.[3]

In making these arguments about 377A, I also want to make another argument. Those who question LGBTQ relationships on the grounds of religion or other considerations rooted in personal conviction should be free to express their views respectfully.

As I said earlier, the mainstream of opinion from among Singaporeans who want to retain 377A is not to call for its enforcement and not to condone bullying or discrimination against LGBTQ individuals of any kind. This is a huge point in favour of the common ground, the strong middle in this debate.

And I would argue that as the mirror image of that, those who question LGBTQ relationships on the grounds of religious faith or deep personal conviction should have the freedom to espouse their views respectfully, making clear that they regard everyone equally as a citizen but they hew to their deep personal convictions on this matter. They should not be cancelled. They should not be demonised. To criticise a choice someone makes in their personal life is not tantamount to criticising, denigrating or disenfranchising the person, but this depends on how the criticism is made. Already as it stands, some religious teachings do constitute criticisms of certain acts not deemed illegal.

Likewise, those of a different persuasion, those who believe in LGBTQ equality, have the right to respectfully criticise opposing views.

Is such respectful speech where we agree to disagree even possible? I will return to this topic in the last part of my speech today.

Before I leave the subject of repealing 377A, Mr Speaker sir, I must say that it is my personal conviction that every individual should be treated equally regardless of sexual orientation. Why? I personally believe that the principles of equality and fairness demand this.

I say that as those are rational principles. But I also say that as a human being, with the emotional make-up that entails.

As a human being, I close my eyes and imagine if I lived in a world where what I deeply feel and who I love are held to be fundamentally wrong by many or most of my fellow human beings; are at odds with the social mores I see everywhere around me, reflected in the media, culture, education, religion. I imagine being in that place. The pain that comes from that sharp disconnect between the inner life and the outer reality cannot be described in words. That inequality needs to be addressed.

Constitutional Amendment

Sir, the amendment to the Constitution which has been tabled today holds that Parliament has the right to decide on the definition of marriage. I see no reason to disagree with this.

On a matter such as the definition of marriage, which is deeply cultural, the law should be made democratically by the people of Singapore, whose voice Parliament reflects. Such laws should be made by the legislature which is accountable to the people directly and not by the Courts which have no such direct accountability.

Sir, the Workers’ Party Chair, MP Sylvia Lim has made some important arguments about why this amendment is unsatisfactory, in a sense redundant and sets a bad precedent. I agree with the points she has made, which come from a good lawyer’s understanding of constitutional law, and I say this as a non-lawyer.

Nevertheless, as a legislator, I believe that the amendment does signify a correct principle, one I agree with, and it is a useful signifier to establish, however imperfect the mechanism and wording of it may be on legal grounds. I support it on that basis.

Conclusion: How to move forward as one united people

Mr Speaker sir, in conclusion, where do we go from here? How can we move forward as one united people, as a democratic society?

Surely the answer to that question is to cultivate the ability for Singaporeans to talk to each other respectfully and rationally. To decide on important matters that way. To decide our politics that way. To decide our laws that way. To agree to disagree that way, when perfect consensus cannot be forged – as it cannot on a range of issues, not only 377A.

For example, in this House we debated the issue of hiking GST versus alternative revenue-raising mechanisms that the Workers’ Party has put forward. We did not find consensus but there were points of agreement. But in that GST debate, the debate turned on rational argument and ultimately philosophic considerations of a secular nature.

Here the debate comes down to matters of deep personal conviction that are less easily resolved with reference to agreed facts.

Will we succeed in cultivating the ability to respectfully disagree on such matters where much of the rest of the world failed? Will we succeed in preserving our unity and not allowing these disagreements, that are so hard to resolve by debate, to become political rifts?

We will not – not completely and not by making straight line progress. The views are very deeply rooted and passionate on both sides.

But can we succeed in moving the needle towards this ideal? So that more and more and more of our national discourse gradually becomes like this, not in a straight line, maybe a zig-zag, messy line, but moving more and more towards a dominant paradigm that says that we can respectfully agree to disagree and tomorrow we will STILL be fellow Singaporeans, still be brothers and sisters, still defend the political centre and push those spewing hatred, bigotry and violence to the fringes?

Can we hold different views that may never be reconciled and have those views respectfully played out in civil discourse, bearing in mind the place of our laws and the place of freedom of speech and religion in a healthy balance? Bearing in mind that we are all citizens equal before the law?

Can we move forward by respectfully agreeing to disagree without demonizing the one we disagree with but embracing him and her as our fellow citizen, our colleague, our brother and our sister?

Can we do this? Sir, I think we must. I don’t know for a fact that we can or will.

But from the discussions I have had with my Workers’ Party colleagues who have expressed or will express different views from mine in Parliament today, I would like to say that I am optimistic that Singapore can do it. Why? Because my colleagues and I strive together for a democratic society. We work alongside each other. And on this issue, we debated, discussed, learnt from one another, agreed to disagree with respect and humility and affection; and we decided democratically.

Delivered in parliament on 28 November 2022