SINGAPORE - A Bill to repeal Section 377A of the Penal Code, which criminalises sex between men, was introduced in Parliament on Thursday, paving the way for the colonial-era law to be struck from the books.

At the same time, a Bill to amend the Constitution was introduced to protect the current definition of marriage as being between a man and woman – and laws and government policies made on that basis – from being challenged in the courts on constitutional grounds.

There are two laws that define marriage in the Republic. 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.

The two Bills tabled on Thursday will be debated together when Parliament sits on Nov 28, and then voted on separately. This is because repealing a law requires just a simple majority of MPs, while any amendment to the Constitution has to be supported by at least two-thirds of MPs, excluding Nominated MPs.

The Penal Code (Amendment) Bill to repeal 377A was introduced in Parliament by Minister for Home Affairs and Law K. Shanmugam.

It comes after Prime Minister Lee Hsien Loong said at the National Day Rally in August that the Government will repeal S377A and decriminalise sex between men, as attitudes towards homosexuality have shifted appreciably. Most people accept that a person’s sexual orientation and behaviour is a private matter, and that sex between men should not be a criminal offence.

A recent Court of Appeal decision and advice from the Attorney-General also point to significant risk of S377A being struck down by the courts in a future challenge to declare the law unconstitutional on the grounds that it breaches Article 12, the equal protection provision of the Constitution, PM Lee said then.

Article 12 states that all persons are equal before the law and entitled to the equal protection of the law. As the Constitution is the highest law in the land, any law enacted in Parliament but found to be inconsistent with it could be struck down by the courts.

At the same time, most Singaporeans do not want the repeal to trigger a drastic shift in societal norms across the board, PM Lee had said of the Government’s consultations with the public, including on the definition of marriage and what is taught in schools.

Following the rally, Cabinet ministers stated that the Government would move to safeguard marriage and pro-family policies, while emphasising that it would not enshrine the definition of marriage as between a man and a woman in the Constitution.

The constitutional amendment, tabled by Minister for Social and Family Development Masagos Zulkifli, will introduce a new Article 156 (Institution of Marriage) clause to the Constitution.

Article 156 states that Parliament can define the institution of marriage, and make pro-family laws on the basis of that definition. The proposed amendment also spells out that the Government and the public authorities may enact policies that protect, safeguard, support, foster and promote the institution of marriage.

The amendment also protects existing laws that define marriage as a union between a man and a woman, and states that such laws and policies cannot be found unconstitutional by the courts on the grounds that they contravene the fundamental liberties set out in the Constitution, such as Article 12.

Examples of such policies include those on public housing, where married couples receive financial benefits, as well as education and media policies that promote and safeguard the institution of marriage, said the Ministry of Home Affairs and the Ministry of Social and Family Development in a joint statement after the Bills were introduced.

Should the amendment pass, any change to the heterosexual definition of marriage and laws made on that basis can happen only through Parliament and not through the courts, added the ministries.

“Such issues should be decided by Parliament, where there can be a full debate that accounts for different perspectives and considerations, and is not tied to a binary (win-lose) decision like in the courts,” the ministries said.

They also noted that the Bill does not codify or enshrine the definition of marriage into the Constitution.

On Thursday, Mr Masagos reiterated the Government’s position that families are foundational to society here, and that the constitutional amendment is aimed at protecting the current definition and laws and policies that rely on this definition from a court challenge.

“This significant amendment to our Constitution demonstrates our commitment for Singapore to be a pro-family society and build a Singapore made for families,” he said at a dialogue with volunteers from social service agencies after the Parliament sitting.

Deputy Prime Minister Lawrence Wong had said previously that the People’s Action Party will not be lifting the whip when Parliament votes to repeal S377A, which means MPs will have to vote according to the party’s position. This followed calls by some quarters for the party whip to be lifted so that MPs can vote freely according to their conscience.

Mr Wong had said in August that repealing the law is a matter of public policy, given that the courts had already said the law would not be enforced, and that measures would be put in place so that doing so would not trigger further societal changes.

The changes come after over a decade of contention and growing polarisation over how to move forward from S377A. In 2007, Parliament decided after a spirited debate to retain the law without enforcing it as an untidy but practical compromise given evolving societal attitudes and norms.

Multiple court challenges were launched between 2010 and 2019, culminating in the Court of Appeal’s decision in February 2022 that a future challenge by a person with standing to do so cannot be ruled out.

In his rally speech this year, PM Lee had called for restraint on this sensitive matter, noting there were signs that contempt for opposing views, cancel culture and bitter feuds splitting society which have been seen in some Western societies were beginning to manifest here.