SINGAPORE - Workers’ Party chairman Sylvia Lim (Aljunied GRC) and Ms He Ting Ru (Sengkang GRC) abstained from the vote to amend the Constitution on Tuesday, saying that the move to give Parliament the exclusive right to define marriage could set an unhealthy precedent.
They said it could be an example of how future Parliaments could prevent the courts from determining the constitutionality of other laws passed by the House.
The two were the only two abstentions for the vote, which was passed after 85 MPs voted in favour. Both Progress Singapore Party Non-Constituency MPs Leong Mun Wai and Hazel Poa voted against the move, preferring that the issue be decided by national referendum.
Ms He said that while she shared the concerns of the judiciary running roughshod over the will of the people expressed through Parliament, there might not be a need for it as courts here have always been careful not to overstep the line, and have given precedence to the lawmaking function of Parliament.
She warned lawmakers not to lose sight of a more fundamental principle: that the judiciary should be the ultimate arbiter of whether laws passed by Parliament are constitutional, calling judicial activism a “phantom menace”.
“From a legal perspective, the proposed amendments carve out an area of legislative decision-making and functionally shields it from judicial review,” she said. “What would stop a future Parliament from passing discriminatory legislation then shielding it from judicial oversight?”
The constitutional amendment prevents laws and policies relating to the heterosexual definition of marriage from being challenged in court on the basis of the fundamental liberties provisions in the Constitution. Only a future government would be able to alter the definition of marriage.
Speaking on Tuesday, her fellow constituency MP Jamus Lim (Sengkang GRC), however, disagreed.
He said an elected Parliament is the right forum to deliberate and decide this matter of broad societal concern.
Parliament reasonably aggregates the preferences of Singaporeans at large, he said. Since the significant majority of Singaporeans have said they want clear reassurance that the institution of marriage will be protected, the constitutional amendment is justified.
Like Ms He, he agreed with the repeal of Section 377A of the Penal Code, saying that the status quo, where the law is not enforced, still explicitly criminalises sex between men.
The worry that the repeal could undermine marriage is a “prospective fear” that must be balanced against the removal of “a tangible, actual threat” of imprisonment for gay men.
“It is like telling a prisoner that their desire for freedom is an attempt to stir up unrest in jail,” he said.
Mr Louis Chua (Sengkang GRC), who also supported the repeal, said retaining S377A makes it more difficult to organise mental health support for members of the gay community, who are at higher risk of depression and mental and physical health dangers.
“Retaining S377A also makes Singapore look anachronistic, especially in the light of our Asian financial hub status,” he added, citing Hong Kong, China, Japan and India, which have all decriminalised gay sex.
“The LGBTQ+ (lesbian, gay, bisexual, transgender, queer) community’s joy of seeing S377A repealed would have been even greater if not for the fact that the move merely puts Singapore more in line with other cosmopolitan, open and inclusive societies around the world.”
Leader of the Opposition Pritam Singh on Monday lifted the party Whip to allow the nine WP MPs to vote according to their conscience.
He said the law is a unique one viewed through the lens of religion and conscience by many, and that lifting the Whip would allow the MPs to represent different groups of Singaporeans who hold views of various shades.
Six WP MPs – Mr Singh, Ms Lim, Mr Leon Perera (all Aljunied GRC), Mr Chua, Associate Professor Lim and Ms He – were in support of S377A’s repeal.
Another three – Mr Gerald Giam and Mr Faisal Manap (both Aljunied GRC), and Mr Dennis Tan (Hougang) – opposed it, although Mr Manap was not in the House to cast his vote due to Covid-19.
Of the nine, all, except Ms Lim and Ms He, voted in favour of the constitutional amendment.
