The Minister of Home Affairs, K Shanmugam, announced on Facebook on Tuesday that:
“the Speakers’ Corner rules allow the Pink Dot event to be organised, and that should be respected. Likewise if anyone wanted to organise an event opposing the LGBT cause…. the Government is neutral about the underlying causes.”
Indeed, the Speaker’s Corner’s rules apply to all groups equally, regardless of their cause. However, it is difficult to agree with the Minister that the Government is neutral on the issue of LGBT rights for two reasons: first, the continued existence of Section 377A; and second, the government’s treatment of anti-LGBT groups.
First, Section 377A of the Penal Code (a piece of Government legislation) is still in force – making it illegal for men to have sexual intercourse with other men. Surely it is odd for the Government to say that it is neutral on the issue of LGBT rights, since under the status quo you could say that Singapore’s conservative groups are ‘winning’ – gay men are currently having their sexual freedom curtailed in exactly the way that these groups desire. If the government allows one side to win, how is it neutral?
In response, the Government might argue that 377A was inherited from the British. Hence, this is not a law that the Singapore Government introduced. Hence, it is neutral; it did not take sides. However, this argument contradicts a fundamental feature of our legal system – the idea that when the courts apply the law, they adhere to the doctrine of legislative supremacy – the idea that Parliament is supreme, and the judges must apply the law as laid down by Parliament. This means that it treats any law that has not been repealed as representing the implied will of Parliament.
This is why the courts have, in the past, applied Section 377A, and also why they would be acting unconstitutionally if they refuse to enforce it. This legal doctrine also explains why a law passed in 1970, for example, is still enforceable today, even though it was an entirely different Parliament that passed that law, and even if today’s Parliament does not expressly approve of that law.
In other words, when we speak of Parliament’s legislative will, being passive does not mean being neutral.
Second, as one netizen pointed out, the Government would usually be quick to disallow anti-Muslim, or anti-Chinese, or anti-women groups to flourish, or for abusive speech to be directed towards these groups in society. However, the government does allow anti-LGBT groups and anti-LGBT speech (as long as it does not amount to criminal harassment/intimidation) to flourish in society.
One might say: hold on, surely the government has no obligation to be protective of LGBT rights. If anything, by protecting LGBT rights, it would no longer be neutral. I argue that this is incorrect – one’s sexual orientation is essential to one’s identity as a human being in a very fundamental way, just like one’s race, gender and religion. Because of this, the Government’s failure to interfere with the abuse of individuals on these grounds is itself a stance on the issue.
To use a hypothetical example, if the Government fails to intervene if Muslims are treated poorly and discriminated against in our society, the Government cannot then claim that by failing to intervene, it is being neutral; in reality, by failing to act, this hypothetical government is tacitly endorsing Islamophobia and discrimination.
However, to give credit to the Government, while Section 377A makes gay sex illegal, the statute is not actively enforced. Can the Government claim that this fact demonstrates a neutral stance on the issue? Not exactly.
One one hand, the fact that Section 377A is not enforced shows that the Government does not support the view of radical anti-LGBT hate groups who might wish to see LGBT people be dealt with harshly by the law. However, on the other hand, the continued existence of this openly discriminatory piece of legislation itself sends a message that the Government is not entirely neutral on the issue.
Let me give a hypothetical example. If the Government adopts a piece of legislation that makes Christian marriages illegal and punishable by imprisonment, but does not enforce it, does it mean that the Government is neutral on the issue of Christian marriages? Many Christians would hardly think so. This is because, there mere existence of the legislation sends a message to the group that is discriminated against that its acts are in fact illegal, and it is only a matter of practice, or good fortune that they are not to receive criminal punishment.
Hence, it is argued that while the Government is not necessarily supportive of strong anti-LGBT hate groups, it cannot be said that it is entirely neutral on the issue.
It is one thing for the Government to adopt a stance that leans towards being anti-LGBT rights, and explain why it takes this stance; it is another to say that it is neutral, when in fact, that is not really the case. I prefer the former, given that it is more transparent and is a more accurate representation of the existing state of affairs.
Whether or not this stance is justified however, is the key question. I think that it is not – but that is a separate debate altogether.
By Rio Hoe
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