S377A repeal: Proposed constitutional amendment to protect marriage definition without 'hard-coding' it, says Edwin Tong

SINGAPORE — The Government will not entrench the definition of marriage in the Constitution, even as it proposes constitutional amendments to protect from legal challenges the existing definition of marriage — as one between a man and a woman — as well as other laws and policies dependent on the definition.

Second Minister for Law Edwin Tong said this on Monday (Aug 22) in an interview with CNA alongside Deputy Prime Minister Lawrence Wong.

Mr Tong, who is also Minister for Culture, Community and Youth, said that "hard-coding" the definition of marriage into the Constitution would elevate marriage to the same level as fundamental rights such as life and personal liberty.

This would “fundamentally change the whole complexion and the schema” of the legal document, he said.

And while doing so would satisfy some segments of society, it could also rile up others, he added.

"And if we did this, 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," Mr Tong said. "And we do not think this would be good for society."

“We think that taken together, this is a package of amendments that best reflects the right balance of interests between those who feel that gay sex should no longer be criminal, and the majority of Singaporeans will still hold dear to family values and a traditional marriage."

He was responding to a question on why the Government is not choosing to entrench the definition of marriage in the Constitution as requested by some religious groups here, following Prime Minister Lee Hsien Loong’s announcement on Sunday that the Government will decriminalise sex between men.

During the National Day Rally on Sunday, Mr Lee said that on top of repealing Section 377A, the Government will also amend the Constitution to protect the definition of marriage from being challenged in the courts to maintain Singapore’s “current family-centric approach, and the prevailing norms and values of Singapore society”. 

Even though the legal definition of marriage is contained in the Interpretation Act and the Women’s Charter, the Government will “have to amend the Constitution to protect it, and we will do so”, said Mr Lee.

The National Council of Churches of Singapore, which represents some 200 churches here, later called for the definition of marriage to be expressly defined in the Constitution, rather than for the amendments to merely include a provision that references relevant portions of the Women’s Charter or the Interpretation Act.

These portions define marriage as one being between a man and a woman.

'SIGNIFICANT RISK' OF SECTION 377A BEING STRUCK DOWN 

During the interview on Monday, Mr Tong said that with recent Constitutional challenges to Section 377A, there is a “significant risk” that the law could be held unconstitutional and struck down by the courts, on the basis that it is a breach of the Equal Protection provision. This has happened in other countries such as India.

The provision in Article 12 of the Singapore Constitution states that all persons are equal before the law and entitled to the equal protection of the law.

If Section 377A is struck down, Singapore’s marriage laws could also be challenged on the same grounds, leading to the recognition of same-sex marriages, said Mr Tong.

“And this in turn will also have an impact on other laws and policies that are built on our existing definition of marriage – such as laws on adoption, public housing, school curriculum, advertising and so on. All of these could come under challenge," he noted.

This is why the Government wants to act now and make a series of constitutional amendments to protect the current definition of marriage in the Women’s Charter and in the Interpretation Act, said Mr Tong.

Chiming in, Mr Wong said that court processes by nature are adversarial, and any court judgement will divide and polarise society further.

Through a political process, however, the Government can accommodate and balance the different views and aspirations of Singaporeans, said Mr Wong, who is also the Finance Minister.

“Through this package of measures, we hope that we can arrive at a new and more sustainable balance that would enable Singapore to remain a harmonious, tolerant and inclusive society,” he said.

PARLIAMENT TO DEFINE INSTITUTION OF MARRIAGE: SHANMUGAM

In a separate interview with The Straits Times and Lianhe Zaobao on Monday, Law and Home Affairs Minister K Shanmugam also explained how the Government intends to amend the Constitution to ward off challenges against the definition of marriage.

"What we are planning to do is to put into the Constitution explicitly that Parliament can define the institution of marriage, and, in the way it is defined in the Women’s’
Charter; and it can make other pro-family policies on the basis of that definition — that
marriage is between a man and a woman," he said.

"And that these laws and policies, which rely on the definition of marriage, cannot be challenged in court by reference to Article 12, by reference to the Constitution," he added. 

"So, if a party, a group of people, want to allow same-sex marriage, they will have to put that in their manifesto, fight elections, win the elections, get a majority, and then change the definition of marriage."