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Explainer: How will marriage definition be protected without 'hard-coding' it in Constitution, yet withstand challenges?

SINGAPORE — The Government will not entrench or "hard code" the definition of marriage as being between a man and a woman directly into the Constitution, government ministers said on Monday (Aug 22). 

Explainer: How will marriage definition be protected without 'hard-coding' it in Constitution, yet withstand challenges?
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  • The Government has said that it will not "hard code" the definition of marriage directly into the Constitution
  • Instead, it intends to state in the Constitution that Parliament can define what marriage means
  • Lawyers said this could mean defining the term in ordinary law, which would only require support from a simple majority in Parliament
  • At the same time, this protects the definition from constitutional challenges
  • Such safeguards have been taken to protect other laws in the past, they said

SINGAPORE — The Government will not entrench or "hard code" the definition of marriage as being between a man and a woman directly into the Constitution, government ministers said on Monday (Aug 22). 

Instead, the Government intends to amend the Constitution to state that Parliament can define what marriage means, and laws and policies that rely on this definition cannot be challenged in court, on the basis that all persons are equal before the law and entitled to equal protection of the law. 

The additional information came after Prime Minister Lee Hsien Loong’s broad-brush announcement at the National Day Rally on Sunday that the Constitution will be amended to protect the definition of marriage, in tandem with the repeal of Section 377A of the Penal Code that criminalises sex between men.

The next day, Law Minister K Shanmugam gave an interview to national daily The Straits Times on the matter, while Deputy Prime Minister Lawrence Wong and Mr Edwin Tong, Minister for Culture, Community and Youth, gave a joint interview to national broadcaster CNA about it.

Mr Tong, who is also Second Minister for Law, acknowledged that some groups have asked for the definition of marriage to be “entrenched” in the Constitution.

However, doing it that way could rile up other segments of society, prompting those who disagree to mobilise or agitate with greater intensity, he said.

“The main reason why we do not think this should be done is because it may not be appropriate to entrench something like the definition of marriage in the Constitution,” he added.

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

How would the constitutional amendments work and can the definition still be challenged when the changes are passed? 

TODAY spoke to constitutional lawyers to take a look at this issue.

HOW IS THIS DIFFERENT FROM ‘HARD-CODING’?

Based on what government ministers have said, the definition of marriage will not be spelt out explicitly in the Constitution, some academics interviewed by TODAY concluded.

Assistant Professor Benjamin Joshua Ong from Yong Pung How School of Law at Singapore Management University (SMU) believes that a new provision could be inserted into the Constitution instead.

As an example, he said that the provision could say something along the lines of: “Any legislation that defines the word ‘marriage’ shall be valid despite anything in this Constitution to the contrary.”

At present, two laws — the Women’s Charter and the Interpretation Act — contain definitions of marriage, both of which describe it as being between a man and a woman.

Asst Prof Ong said: “On its face, that would mean that the legislature is free to amend the definition of marriage, which can be done by a simple majority of Members of Parliament (MPs) who are present and voting at a session in Parliament.”

To pass ordinary laws, support from a simple majority in Parliament is needed.

When changes are made to the Constitution — the supreme law of the country — a two-thirds majority of all elected and Non-Constituency MPs is needed.

HAS THIS BEEN DONE BEFORE?

Assistant Professor Kenny Chng, also from Yong Pung How School of Law at SMU, said that there have been past instances where this “shielding provision” approach has been taken

For example, Article 149(1) of the Constitution, which governs laws against subversion, states that laws designed to prevent actions that cause fear of organised violence or are damaging to the security of the country are “valid” despite being inconsistent with some constitutional rights.

Asst Prof Ong noted that it would therefore be difficult to argue that the Internal Security Act violates various constitutional rights such as freedom of expression.

Other examples can be found in Article 19B(5), which protects the reserved presidential election scheme from constitutional challenges and Article 39A(3), which protects the Group Representation Constituency scheme during parliamentary elections.

WHY NOT ‘HARD CODE’ THE DEFINITION?

Adjunct Professor Kevin Tan from the National University of Singapore’s law school said that it was wise for the Government not to incorporate the definition of marriage directly into the Constitution.

Doing so would, in essence, elevate marriage to the same level as fundamental liberties and rights, meaning that it would likely become a bone of contention in the future, he added.

Likewise, Associate Professor Eugene Tan, a lecturer from SMU whose research interests include constitutional and administrative law, agreed that the definition should not be hard coded in the Constitution and said that marriage is a personal choice that should be respected.

“Today’s Parliament should not cast in stone the definition of marriage such that it binds the hands of future parliaments and future generations of Singaporeans.”

Today’s Parliament should not cast in stone the definition of marriage such that it binds the hands of future parliaments and future generations of Singaporeans.
Associate Professor Eugene Tan from Singapore Management University
“We should also be careful not to put marriage on the pedestal as there are also unmarried Singaporeans and we don’t want a situation where our laws and policies put an unnecessarily high premium on marriages.”

Either way, protecting the definition of marriage by amending the Constitution would be a novel step, since the Constitution so far focuses on protecting certain fundamental rights and providing the foundational framework of rules governing Singapore, Asst Prof Chng noted.

Asst Prof Ong said that it raises the question: What is it about marriage between a man and a woman that makes it deserving of a higher level of protection than other concepts or values, such as gender equality, for instance?

HOW HAVE OTHER COUNTRIES HANDLED IT?

Asst Prof Ong noted that based on a online compilation of the constitutions of different jurisdictions around the world by the Comparative Constitutions Project, there have been several examples where the issue of same-sex marriages have been addressed differently.

Some address the issue directly in their constitution. In Ireland, its constitution states: “Marriage may be contracted in accordance with law by two persons without distinction as to their sex.” In Zimbabwe, its constitution states: “Persons of the same sex are prohibited from marrying each other.”

Others, such as Ethiopia, Namibia and Vietnam, set out particular aspects of marriage, such as the need for consent or the right to divorce. 

In Venezuela, its constitution even stipulates the rights of unmarried couples: “A stable de facto union between a man and a woman which meets the requirements established by law shall have the same effects as marriage.”

Both Asst Prof Ong and Assoc Prof Tan said they were unaware of any other countries that have approached protecting the definition of marriage similar to Singapore’s approach.

CAN MARRIAGE BE DEFINED DIFFERENTLY IN FUTURE?

If Parliament implements a “shielding provision” in the Constitution, it could amend the definition of marriage in future with the support of a simple majority vote in the House.

Beyond Parliament, legal challenges may still be brought against the definition but the case may be unlikely to succeed, the lawyers said.

One possible way of mounting a legal challenge could be by challenging the constitutional amendment itself, Asst Prof Ong said.

“In many legal systems including Singapore, people bring up test cases relating to many controversial pieces of legislation, including constitutional amendments,” he said.

An example of this happened here in 2017, when lawyer M Ravi filed an unsuccessful legal challenge against changes to the Elected Presidency scheme in the Constitution. 

Asst Prof Chng said that protecting the definition of marriage from constitutional challenges fulfils the Government’s objective of taking such matters out of the court’s hands and returning them to the political realm.

“The experience of jurisdictions such as the US shows that one consequence of courts being drawn into making decisions on such deeply contentious political issues is that the judiciary can become politicised, which can in turn have adverse effects on the administration of justice.” 

Click here for the latest news and reports on Section 377A.

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marriage constitution Parliament court law Section 377A same-sex marriage

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