Section 377A: Constitution will be amended to protect Parliament's right to define marriage, says Shanmugam

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SINGAPORE - As it repeals Section 377A, the Government will also make it clear in the Constitution that it is Parliament's prerogative to define marriage as being between a man and a woman and to make other pro-family policies on that basis, Home Affairs and Law Minister K. Shanmugam said on Monday (Aug 22).

This is different from enshrining the definition of marriage in the highest law of the land, which some religious groups and conservative Singaporeans have pushed for. But Mr Shanmugam said the move will stave off legal challenges on the definition of marriage.

His comments, in an interview with The Straits Times and Lianhe Zaobao, come a day after Prime Minister Lee Hsien Loong announced at the National Day Rally that Section 377A of the Penal Code, which criminalises sex between men, would be repealed.

In tandem, the Government would move to safeguard marriage, PM Lee said. As the law stands, he added, marriage as it is now defined can be challenged on constitutional grounds in the courts, just like Section 377A has been challenged.

Religious and conservative groups, some of whom see the colonial-era law as a moral marker, have welcomed this guarantee, and suggested that marriage will be defined in the Constitution.

To this, Mr Shanmugam said: "I want to be clear because I think there's some confusion. The definition of marriage is not going to be in the Constitution. That's not the intention."

Instead, the Government plans to explicitly state in the Constitution that Parliament can define the institution of marriage in the way it has been defined in the Women's Charter, and can make other pro-family policies on the basis of that definition. This will make it difficult to challenge the definition of marriage and the policies that rely on it, he added.

In a separate interview with CNA, Deputy Prime Minister Lawrence Wong said the Government was fully committed to uphold the current definition of marriage.

"This will not change... under the watch of the current Prime Minister, and it will not happen under my watch - if the PAP were to win the next General Election.

"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," he said.

Meanwhile, the Ministry of Education said its policies on the issue would not change, and the Ministry of Communications and Information also said its approach to regulating media content would remain.

In the interview, Mr Shanmugam said that if the proposed amendments to the Constitution are not made, the prevailing definition of marriage risks being challenged on the basis of being discriminatory under Article 12 of the Constitution, which guarantees equal protection under the law.

"It can be challenged, it can be asked...why should marriage only be between a man and a woman? Why shouldn't it be possible for two men, or two women, to be married?, he said.

"Such arguments about marriage have been made elsewhere successfully."

If this happens, "everything could go in one sweep", including many of the other laws and policies built on the current definition of marriage, such as those on public housing, education and media policies, he added.

The danger of this happening became clear when the Court of Appeal said in a February judgment that Section 377A could be discriminatory under Article 12 of the Constitution which guarantees equal protection under the law.

Mr Shanmugam, who with Attorney-General Lucien Wong advised the Cabinet on the issue, said: "If Parliament doesn't act, either because of fear or because of a lack of will, and therefore doesn't deal with the law which may be in breach of the Constitution, then...(it) is not doing its job. Then, you make it difficult for the Courts to exercise restraint."

Keeping quiet and letting the Courts deal with it would have been more politically expedient, he noted, since emotions run high on both sides.

But if Section 377A or even the definition of marriage were struck down like that, it would risk damaging the fundamental fabric of society, he added. Such political issues should not be decided by the judiciary, but by the legislature.

In fact, the intended amendment to the Constitution leaves open the possibility for Parliament to change the definition of marriage through a simple majority.

While constitutional amendments require a two-thirds majority in Parliament to pass, changes to other pieces of legislation, including the Penal Code which Section 377A is a part of and the Women's Charter, requires a simple majority.

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.

Mr Shanmugam said: "This government's position is very clear and you've also heard what Deputy Prime Minister Lawrence Wong has said.

"We are committed to strengthening the current structure of marriage, strengthening the family structure and the policies that surround that structure of family. We think that's what is fundamental for Singapore. And in fact, we are amending the Constitution to strengthen their position."

He added 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.

Asked when the repeal of Section 377A would happen, he said "the changes itself, in terms of legal drafting and so on, will not take much time".

He added: "I am not in a position to give you an answer on that right now. But I do not expect that it will be very long."

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