askST: What to know about the constitutional changes to protect the definition of marriage

The amendments will protect the definition of marriage as between a man and a woman from being challenged in the Courts. PHOTO ILLUSTRATION: UNSPLASH

SINGAPORE – Amendments to the Constitution were introduced in a Bill on Thursday to protect the current definition of marriage – as that between a man and a woman – from legal challenge.

This follows the Government’s move to repeal Section 377A of the Penal Code, which criminalises gay sex between men.

The constitutional amendments are being introduced in a new Article 156 in Part 13 of the Constitution.

Here is what you need to know about them:

What does the proposed Article 156 say, exactly?

It reads:
156. (1) The legislature may, by law, define, regulate, protect, safeguard, support, foster and promote the institution of marriage.
(2) Subject to any written law, the Government and any public authority may, in the exercise of their executive authority, protect, safeguard, support, foster and promote the institution of marriage.
(3) Nothing in Part 4 invalidates a law enacted before, on or after the date of commencement of the Constitution of the Republic of Singapore (Amendment No. 3) Act 2022 by reason that the law
       (a) defines marriage as a union between a man and a woman; or
       (b) is based on such a definition of marriage.
(4) Nothing in Part 4 invalidates an exercise of authority before, on or after the date of commencement of the Constitution of the Republic of Singapore (Amendment No. 3) Act 2022 by reason that the exercise is based on a definition of marriage as a union between a man and a woman.

What does Part 4 refer to?

Under Part 4 of the Constitution, certain fundamental liberties are protected. These include Article 10, which prohibits slavery and forced labour; Article 12 on equal protection of the law; and Article 15, which guarantees freedom of religion.

So what is the effect of Article 156?

The first clause basically clarifies that the power to make laws to do with the institution of marriage lies with Parliament (the legislature).

The second clause adds to this by noting that the Government and public authorities may protect, safeguard, support, foster and promote the institution of marriage through policies.

In Singapore’s case, these include public housing policies, where married couples get financial benefits. In education, too, policies and curricula are anchored on Singapore’s prevailing family values and social norms.

The other clauses of Article 156 protect laws defining marriage as a union between a man and a woman, and laws that are based on such a definition, from being invalidated by Part 4 of the Constitution, which deals with fundamental liberties.

These include Article 12, which comes under Part 4 of the Constitution, which states that all individuals are equal before the law and entitled to the equal protection of the law.

As the Constitution is the highest law of the land, any law enacted in Parliament but found to be inconsistent with it could be struck down by the courts.

In fact, a recent Court of Appeal decision on Section 377A raises a significant risk that the courts would strike down Section 377A in a future challenge, on the grounds that it breaches the equal protection clause in Article 12 of the Constitution. Under Section 377A, it is an offence for men to engage in gay sex, but the law does not cover women.

Article 156, if passed, will prevent the current definition of marriage (as between a man and a woman) from being struck down by the courts based on such a constitutional challenge.

During the National Day Rally in August, Prime Minister Lee Hsien Loong had said that the courts are not the right forum to decide on such important sociopolitical issues that are fundamental to society. Such issues should be decided by Parliament, where there can be full debate that accounts for different perspectives and considerations, and is not tied to a binary (win-lose) decision like in the courts.

This is why the Government said it will amend the Constitution to protect the heterosexual definition of marriage, and laws and policies based on the heterosexual definition of marriage, from a successful constitutional challenge.

The Government has said that even with the repeal of Section 377A, most Singaporeans still want to maintain the current family and social norms, where marriage is between a man and a woman, and children are brought up in such a family structure.

“The Government supports this view, and has affirmed that it will uphold the current heterosexual definition of marriage and the family structure that arises from it,” said the Home Affairs and Social and Family Development ministries on Thursday.

What laws currently define marriage in Singapore?

There are currently two laws that do so. The Women’s Charter states that a marriage that is not between a man and a woman is void, while the Interpretation Act states that a monogamous marriage is the union of one man and one woman.

Various policies – as mentioned above, housing and education – take their lead from this definition.

Does Article 156 amount to defining what marriage is in the Constitution?

No. The Bill does not codify or enshrine the definition of marriage in the Constitution.

Why isn’t the definition permanently written into the Constitution, as some groups have suggested?

The definition of marriage may be subject to change in the future, depending on the attitudes of society at the time.

However, it will not change under PM Lee’s watch, Deputy Prime Minister Lawrence Wong has said.

Mr Wong, who is slated to be Singapore’s next prime minister, has also said that the definition will not change, should the People’s Action Party win the next election.

In an earlier interview, Mr Wong had said: “Likewise, we will not change the laws and policies that rely on this definition of marriage, and that relates to public housing, adoption, what we teach our children in schools, advertising standards, film classification, and so on. Basically, the overall tone of society will not change – our laws and policies will remain the same.”

SPH Brightcove Video
Constitutional law expert, Mr Eugene Tan, and Associate Professor of Law at the Singapore Management University, explains how marriage may be constitutionally protected.

In the same interview, Minister for Culture, Community and Youth Edwin Tong said that it may not be appropriate to entrench the definition of marriage in the Constitution, as some churches had called for.

“This entrenchment would elevate marriage to the same level as fundamental rights in our Constitution, rights such as life and personal liberty,” he noted. “And this would fundamentally change the whole complexion and the schema of the Constitution.”

Mr Tong said: “If we hard-coded marriage in this way, in the most fundamental legal document in Singapore, we may end up prompting those who disagree with this position to campaign to mobilise, agitate, perhaps even with greater intensity.”

He added that this would not be good for society.

Does it mean a future government can change the definition of marriage? What will it need to do?

Yes, it can. In a previous interview, Law and Home Affairs Minister K. Shanmugam said that any political party or group that wants to push for same-sex marriage will be able to do so.

“They will have to put that in their manifesto, fight elections, get a majority and then change the definition of marriage,” he said.

For example, changing the Women’s Charter, which is the piece of legislation that currently defines marriage, requires a simple majority of votes in Parliament.

What next, now that the constitutional amendment Bill on Article 156 has been introduced?

The Bill will be debated at the Nov 28 parliamentary sitting. MPs will speak about the changes before it is put to a vote.

As an amendment to the Constitution is involved, a two-thirds majority of all 92 elected MPs and the two Non-Constituency MPs, but excluding the nine Nominated MPs, is required for the Bill to be passed, as compared with the usual simple majority for other pieces of legislation. In other words, it needs 63 votes to get passed. The PAP has 83 MPs.

The repeal of Section 377A of the Penal Code, on the other hand, requires a simple majority – or 52 – of the 103 MPs.

Mr Wong had said in August that the PAP will not be lifting the Whip when Parliament votes on the move to repeal Section 377A as the matter is one of public policy. This means that its MPs will have to vote according to the party’s position.

The Workers’ Party declined to comment when asked then if it would lift its party whip for the debate.

Once the Bill is passed by Parliament, it will be scrutinised by the Presidential Council for Minority Rights to ensure that it does not discriminate against any racial or religious community. This is generally completed within 30 days of a Bill being passed.

Following that, President Halimah Yacob will give her assent, and once it is gazetted, the Bill will be in force.

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