Commentary: Decision on Section 377A reflects ‘Singapore formula’ on difficult issues
The status of Section 377A is in a special breed of political issues where advocates feel that their personal value system and way of life are at stake. The best route in managing them is to find compromise solutions, say the Institute of Policy Studies’ Gillian Koh and Mathew Mathews.
SINGAPORE: At the 2022 National Day Rally, Prime Minister Lee Hsien Loong announced that one, the Government will repeal the colonial-era law that criminalises sex between men and two, amend the Constitution so that the heterosexual definition of marriage as stipulated in the Women’s Charter and Interpretation Act cannot be challenged in a court of law.
The status of Section 377A in the Penal Code is in a special breed of political issues where advocates feel that their personal value system and way of life are at stake. The differences are viewed as irreconcilable. The best route in managing them is to find compromise solutions with the assurance that these can be reviewed from time to time.
There will now be debate in Parliament but neither lobby should imagine it is the only valid group of stakeholders in the room, that no new ones will arise, or that an assertion of rights can only be defined one way.
In his speech, Mr Lee did indeed recognise that some, presumably those advocating the repeal of Section 377A and equal citizenship for lesbian, gay, bisexual and transgender (LGBT) individuals, will find the move too modest, while others, presumably those appealing for status quo to hold, will receive it with great reluctance. He added that no group can have it all their way.
ARGUMENTS ON BOTH SIDES
Over the past 15 years since Parliament last debated the status of Section 377A, the lobbies on both sides of the divide have strengthened, each treating it as an existential issue, each arguing that it has been stigmatised.
The LGBT community, in particular, homosexual men, say they have experienced psychological duress because of Section 377A. The conservatives, taking reference from their peers in countries where laws on same-sex relations have been liberalised, fear the loss of their rights to preach and teach about traditional (or heteronormative) values related to marriage and family.
This is an issue area that is not merely about rational policy issues where consensus, pragmatism and even legal coherence or integrity can be so easily arrived at. It is in a special category of public policy issues that can only see a state of “stable irresolution” as propounded by political theorist James Tully and written about by local scholar Johannis Auri Abdul Aziz.
This means that passionately-held, value-laden beliefs are admitted into the democratic process and for a time, a certain accommodation is accepted not only for the sake of upholding a higher order goal of peace and the political system, but also because it is paired with the proviso that there will be space to contest policy and legislation at the next appropriate stage, whenever that may be.
So, positions are “provisional” because they cannot be definitively “resolved”. The arrangement is held till claimant groups provide new reasons for legislative change.
A NEW ACCOMMODATION
Singapore is one of the most diverse countries on the planet, not only in terms of religious beliefs including those who are agnostics or atheists, but also in terms of ethnicity and linguistic backgrounds. Once activated, the respective communities will be heard and felt viscerally.
With the planned dual track policy reform of Section 377A that is supposed to have benefitted from extensive discussion with interested segments of society, a new accommodation is proposed.
The question is whether passionate advocates on either side will cause a greater polarisation of society, or if they will signal a belief that their interests are better served by accepting this new political arrangement and holding it steady for some time to come.
In its initial response, the LGBT community said the repeal of Section 377A would be a “hard-won victory” but was “dismayed” that there would be moves to defend the current definition of marriage. Its members said that the intention to repeal Section 377A would be but the “first step on a long road” towards equality.
In its response, a group of Pentecostal and Charismatic Christians said the decision was “extremely regrettable” but recognised that the Government was seeking to achieve balance across diverse viewpoints. There is deep worry that the ordinary laws on which the protection of the current concept of family in the Constitution is proposed, can be toppled by a simple majority in Parliament.
THE SINGAPORE FORMULA
Civil contestation and the tone of it will make all the difference. Singapore has managed such difficult moral and political controversies before like the 2004 decision to license casinos within proposed integrated resorts.
The introduction of a panoply of social safeguards and committed enforcement of them have kept the level of problem gambling and associated social problems relatively stable. The “wait and see” approach provided the space for this move which was similarly dual-sided – liberalise and protect – to prove its worth.
In 2021, the Government announced it would change a long-held ban on the use of the tudung, an important part of a Muslim woman’s dress code, in the uniformed public healthcare sector. Mr Lee has said that the public has absorbed the change relatively well.
Examining these, policy and legislative positions have shifted in the direction of greater inclusion of minorities while other measures are introduced to address the concerns of the majority community or those representing the status quo. This has been the Singapore formula.
Let us use an imperfect but hopefully helpful analogy of team-sports to illustrate this political model and what it is not. Scenario One: After the final whistle, members of the vanquished team shake hands with the victors and referees, vowing to prepare themselves to take on their adversaries (not enemies) again. The spectators celebrate a game played in the spirit of sportsmanship, and look forward to the rematch. A month later, the teams meet but this time, to promote the city’s new integrated sports facilities and its sporting culture, a common interest they can all rally around.
Scenario Two: After the final whistle, members of both teams come to blows as they have made enemies of each other as the game ensued. The referees are caught in the scuffle because the players believe that the outcome was shaped primarily by the rulings of the referees. The fans also fight each other. The facilities are damaged and there are injuries. A month later, there are campaigns to ban the sport and certainly shut down its association.
As citizens, we pledge to build a democratic society amidst our diversity in values and social mores whatever the source of inspiration or authority.
Scenario One is what we must maintain. Scenario Two is what we must avoid. More talk with a large dose of empathy is, paradoxically, the action that is needed. Harassment and violence will take things beyond the pale. But unlike the analogy, the issue of Section 377A cannot be distilled into a game, and no side is actually “defeated”.
As a small, dense nation that also hosts many a sojourner, first, this political capacity to weave a strong tapestry that accommodates differences and creates common interests, and second, the human capacity to be creative and wise to generate specific accommodations to narrow the gap between policy trade-offs and competing interests, are what must make this union called Singapore, real and workable. We have done it before, we can do it again.
Dr Gillian Koh is Deputy Director and Dr Mathew Mathews is Principal Research Fellow and Head of IPS Social Lab, both of the Institute of Policy Studies, National University of Singapore.