Why Archbishop William Goh’s Comments on Section 377A Are Troubling & A Primer on Religious Freedom in Singapore
On 19 September 2018, it was reported that Most Reverend William Goh, the Archbishop of the Roman Catholic Church of Singapore, opposed the repeal of Section 377A of the Penal Code under present circumstances.
He explained that he would not object to a repeal of the law if “it were merely aimed at removing all potential criminal penalties against homosexuals.”
However, he continued, “until and unless Parliament puts in place a formulation that more perfectly encapsulates the spirit of the law, guaranteeing the protection of the rights of the majority who favour the traditional family, and that no further demands be made to legalise same-sex unions, adoption of babies by same sex couples, surrogacy, or to criminalise those who do not support the homosexual lifestyle”.
I was deeply troubled by his statement for several reasons.
An Eye For An Eye, or A Law for Many Laws?
Firstly, what the Archbishop has said implies a bargain that he is willing to strike with the LGBT community and the government. Essentially, he is willing to support the decriminalisation of male same-sex sexual intimacy if it can be guaranteed that the debate on LGBT rights is terminated.
This is problematic for three reasons.
One, this runs contrary to the Statement of the Holy See at the United Nations General Assembly (UNGA). It was put in no uncertain terms that “the Holy See continues to advocate that every sign of unjust discrimination towards homosexual persons should be avoided and urges States to do away with criminal penalties against them”. There was no qualifications to the Holy See’s call for the decriminalisation of homosexuality.
Of course, there remains a debate over whether the Vatican was calling for the decriminalisation of homosexuality (or otherwise referred to as same-sex attraction) or simply homosexual conduct given the religious distinction between act and attraction. Section 377A criminalises the latter, not the former.
An explanatory note published in the official Vatican newspaper LOsservatore Romano clarified that the Catholic church’s position is that free sexual acts between adult persons must not be treated as crimes to be punished by civil authorities.
What about criminalisation without criminal penalties, as is the case with the Singapore Government’s policy on Section 377A?
Given that the Holy See’s statement explains that the Catholic Church advocates that “every sign of unjust discrimination towards homosexual persons should be avoided”, the existence of such a law would constitute a sign of such discrimination.
This is because criminal law plays multiple functions, not only deterrence and incapacitation (of those who may or have caused harm to society) but also norm-setting. What matters is the fact that this law institutionalises the prejudicial and discriminatory social attitudes towards people who are not heterosexual in our society.
It is unfortunate then that the Archbishop’s statement seems incongruent with the position that the Holy See had set out back in 2008.
Two, whether Singapore decides that LGBT people should deserve further rights in relation to marriage and adoption is a different conversation that our society should have. To demand that any such possibility be extinguished in exchange for the decriminalisation of Section 377A is troublingly undemocratic.
This denies our society as a whole the opportunity to decide on these matters as our country evolves over time. It also contradicts Prime Minister Lee Hsien Loong’s call to “let the situation evolve gradually” in the 2007 parliamentary debate over the retention of Section 377A .
Three, such a demand is objectionable. If the Most Reverend William Goh supports the decriminalisation of Section 377A in principle but would rather hang that over the heads of gay people in exchange for what he may believe is to the benefit of society, that seems both exploitative and disingenuous.
This is particularly since he must already be aware that the criminalisation of homosexuality is, in the words of the Holy See’s delegation at the UNGA, “unjust discrimination towards homosexual persons”.
Is There A Real Threat to Religious Freedom?
Secondly, the Archbishop noted that “looking at the dire consequences for countries which normalised same-sex unions and the ramifications that followed”, Singapore should “not repeat the mistake that others have made”.
What are these dire consequences? It is probably the prohibitions against discrimination of LGBT people, or in the Archbishop’s words, the “criminalis[ation] of those who do not support the homosexual lifestyle”.
This refers to situations where people of faith have faced sanctions for refusing to provide services to LGBT individuals. Recent cases include the two cases regarding the baking of wedding cakes for same-sex wedding ceremonies, Masterpiece Cakeshop v. Colorado Civil Rights Commission in the US and Lee v Ashers Baking Company Ltd in the UK.
However, to characterise this simply as “criminalis[ing] those who do not support the homosexuality lifestyle” is misleading and inaccurate.
Firstly, the right to religious freedom is codified under Article 15 of the Singapore Constitution. In A Treatise on Singapore Constitutional Law, Professor Thio Li-Ann distinguishes between the internal and external dimensions of this right.
The internal dimension refers to the right to profess and is an absolute and inviolate right. “It is the paradigm freedom of conscience, reflecting the intrisic value of human dignity in its vision of the human being as a moral and rational agent who is responsible for the consequences of his choices”, Professor Thio explains.
The external dimension refers to the right to practise and propagate one’s religion. These rights are not absolute rights, and are qualified by Article 15(4) which provides that Article 15 does not “authorise any act contrary to any general law relating to public order, public health or morality”.
Professor Thio noted that the Singaporean courts have “emphasised the importance of reading Article 15(1) subject to the “inherent limitations” found in Article 15(4)”. She cites former Chief Justice Yong Pung How in Liong Kok Keng v PP where he held that religious freedom is “not an absolute and unqualified right”.
It is therefore not quite right for the Archbishop to employ such language that suggests that the right of freedom of conscience of those who do not “support the homosexual lifestyle” may be threatened.
Instead, in those cases involving Christian bakers and other situations where religious freedom comes into conflict with non-discrimination, the right in question is the right to practise one’s religion which, as Yong CJ had noted, is “not an absolute and unqualified right”.
The question then is how two conflicting interests should be balanced. On one hand, one party has the right to practise his religion. On the other hand, the other party has a competing right not to be discriminated against. To describe this simply as a case of religious persecution or the abrogation of one’s right to religious freedom would thus be an incomplete account.
Secondly, in any case, it does not seem that this would even be an issue in Singapore. While the US and UK may have such legislations, it is a product of their respective historical and political context. In the US, non-discrimination legislations have been enacted in light of its history of racism and racial segregation. In the UK, such legislations had been enacted to comply with their obligations as a member of the European Union. (It remains to be seen then how these laws may develop following Brexit).
In contrast, Singapore has not favoured using the coercive force of the law to promote inclusion, preferring instead to promulgate guidelines to reduce the incidence of prejudice and discrimination. The only exception is pregnancy discrimination under the Employment Act.
For instance, in relation to employment discrimination on the basis of gender, age or disability, the Tripartite Alliance for Fair and Progressive Employment Practices encourages employers to “recruit and select on the basis of merit (such as skills, experience or ability to perform the job) regardless of age, race, gender, religion, marital status and family responsibilities, or disability”.
Such fears of the loss of religious freedom among many religious communities are therefore unfounded and unnecessarily imported from other societies, where the social, cultural, legal, political and historical contexts are significant different.
David versus Goliath, but who’s Goliath?
While it is understandable why religious groups would be concerned with the issue of religious freedom, it is unfortunate that they have decided to concentrate their attention on the spurious threat from the LGBT community instead of the real and obvious state restrictions on the participation of religious groups in civil society.
I have mentioned elsewhere how in her book, Authoritarian Rule of Law, Jothie Rajah explained that the Maintenance of Religious Harmony Act (MRHA) was enacted in the aftermath of the Marxist Conspiracy to control and restrain the involvement of religious groups in civil society.
This has the unfortunate effect of discouraging religious groups from advocating for marginalised communities and injustice in our society.
For instance, the previous Archbishop Nicholas Chia decided against speaking up about the Internal Security Act at the eleventh hour in 2012. More recently, the Catholic Church in Singapore diverged (once again) from the Vatican in relation to the abolition of the death penalty.
In particular, the statement from the Archbishop’s Communications Office explained that the church “does not impose her view on any government. She respects the responsibilities of state authorities to ensure the protection of those under their care and, as in all areas, will continue to work with them to serve the common good.”
While it may seem confusing in light of these comments that the Archbishop spoke up against the repeal of Section 377A but not for the abolition of either the ISA or the death penalty, Rajah’s account of the MRHA explains how this law may have fostered a culture where religious groups avoid meddling with what is considered to be politics.
In the case of Section 377A, the Government has made clear that this is an issue for society to decide. As such, the ordinary unspoken norms that discourage religious groups from commenting on laws do not apply. It may therefore be more understandable why religious groups have been so engaged and gripped with this issue: it is one of the very few issues in society where it has been permitted to have a stake in shaping.
Another issue where religious groups have been actively involved in was the question of whether casinos should be set up in Singapore. This experience highlights the positive contribution that religious groups can have on our society.
Despite the opposition of religious groups and many citizens, the casinos were eventually brought into Singapore. However, many of these religious groups subsequently became involved with the National Council for Problem Gambling and other initiatives to mitigate the negative effects that the casinos have resulted in.
What this discussion reveals is that it may be useful to reflect on by whom and how religious freedom is and may be encroached upon. It may be off-the-mark to regard the LGBT community as the “Goliath” that the Christian and Catholic communities are battling against. After all, the Archbishop acknowledged in his statement that this is a community that remains “ostracised or marginalised by society”.
377A Debate as an Exception to State-Religion Discourse in Singapore?
Finally, it is also worth reflecting on why the debate over the repeal of Section 377A stands out from other debates in our country’s history where religious groups have also been passionately engaged in. Why did the Government make decisions against the views of religious groups or the population in most other cases, but not in relation to the decriminalisation of same-sex sexual intimacy?
For instance, the Government went against both the views of religious groups and many concerned citizens to set up the two Integrated Resorts.
In his 2007 parliamentary speech on the retention of Section 377A, Prime Minister Lee Hsien Loong explained:
“When it comes to issues like the economy, technology, education, we better stay ahead of the game… And when necessary on such issues, we will move even if the issue is unpopular or controversial… We moved on IRs — it is a difficult subject, not everybody supports the Government, but we decide this is right, we move.”
However, when it comes to “issues of moral values with consequences to the wider society”, Singapore would instead “let others take the lead… stay one step behind the frontline of change”.
This is the approach that our Government has decided to adopt, whether one agrees with it. However, it would not be completely accurate to suggest that this indicates an abrogation of Singapore’s secularism, as some online commentators have suggested in recent discussions.
Ultimately, this is not to say that Singapore would never progress on gay rights. After all, if that was the case, the Archbishop would not have felt the need to propose a bargain to prevent further gains made by the LGBT movement.
PM Lee noted in his 2007 parliamentary speech that “we cannot be impervious to what is happening elsewhere. As attitudes around the world change, this will influence the attitude of Singaporeans.” As other countries, including many other Asian societies closely connected to Singapore like India, Taiwan, Hong Kong and Japan, make further advances on LGBT rights, they will pave the way for Singapore to follow. It is almost inevitable that we will eventually make progress on this issue, if not sooner then later.
Daryl Yang is a final year student reading a double degree in law and liberal arts at Yale-NUS College and the Faculty of Law at the National University of Singapore. He co-founded and served as Executive Director of the Inter-University LGBT Network, a network comprising five student-led organisations across Singapore’s universities with the aim to foster safer and more inclusive campuses. He was also previously a two-term Coordinator of The G Spot, Yale-NUS’s gender & sexuality alliance. Daryl also co-founded CAPE (Community for Advocacy & Political Education) with a group of students from Yale-NUS and NUS Law, which aims to increase political literacy and promote civil society engagement in Singapore.