Section 377A: Constitutional amendment to enable Parliament to define marriage – Shanmugam

Photos showing a Pink Dot SG gathering at Hong Lim Park in 2019 calling for a repeal of Section 377A of the Penal Code, and Law and Home Affairs Minister K Shanmugam. (PHOTOS: Reuters)
Photos showing a Pink Dot SG gathering at Hong Lim Park in 2019 calling for a repeal of Section 377A of the Penal Code, and Law and Home Affairs Minister K Shanmugam. (PHOTOS: Reuters)

SINGAPORE — In line with the move to repeal Section 377A (S377A) of the Penal Code, the law that criminalises gay sex, Singapore’s Constitution will be amended to ensure the right of Parliament to define marriage as being between a man and a woman, Law and Home Affairs Minister K. Shanmugam said on Monday (22 August).

The move is to guard against challenges in court on the definition of marriage, and is different from enshrining it in the Constitution, said Shanmugam in an interview with The Straits Times and Lianhe Zaobao.

In his National Day Rally speech on Sunday, Prime Minister Lee Hsien Loong said that as the law stands, this definition can be challenged on constitutional grounds in the courts, just like S377A had been challenged previously, he added.

If a constitutional challenge against the definition of marriage succeeds in Singapore one day, it could cause same-sex marriages to become recognised here, according to Lee. "I do not think that for Singapore, the courts are the right forum to decide such issues," he said.

If such a constitutional amendment is not effected, there could be potential challenges on the definition of marriage on the grounds of a breach under Article 12 of the Constitution, which accords equal protection under the law, Shanmugam said.

Prior to Lee’s speech, several religious organisations have asked for the definition of marriage to be enshrined in the Constitution if S377A were to be repealed.

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."

Pro-family policies

The Constitution – the highest law in Singapore – requires approval from a two-thirds majority in Parliament for any amendments to be passed. The ruling People’s Action Party government has a comfortable supermajority far above this level in the current Parliament. Legislative changes, such as the repeal of S377A or the definition of marriage, requires a simple majority in Parliament for them to take effect.

With a constitutional amendment in place for Parliament to have the right to determine the definition of marriage, the government can then craft pro-family policies on housing, education and others accordingly, Shanmugam said.

Any political party or group who wants to challenge the definition and fight for same-sex marriage can do so, Shanmugam said.

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

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