The proposed Articles 156(3) and (4) refer to Part 4 of the Constitution, which contains constitutional rights provisions, such as the right to equality, said Assistant Professor of Law Benjamin Joshua Ong, from the Yong Pung How School of Law at the Singapore Management University (SMU).
“For example, Article 156(3) appears to prevent someone from arguing that the definition of marriage in the law violates the constitutional right to equality because it does not provide for same-sex marriage,” said Asst Prof Ong. Subsection 156(4) does the same for the executive or Government and its policies and measures.
SMU Associate Professor of Law Eugene Tan said the intention is to “significantly reduce the likelihood of constitutional challenges on laws and government policies that are premised on marriage being that between a man and a woman”.
“The provision makes it plain and clear that what is a marriage is for Parliament to decide,” said Assoc Prof Tan.
He added: “The constitutional amendment Bill does not codify the definition of marriage in the Constitution. In so doing, it does not unnecessarily bind future governments and generations on the definition of marriage.”
WHY NOT “ENSHRINE” IT IN THE CONSTITUTION?
If defined in the Constitution, any future amendment to the definition of marriage would require a supermajority, or votes from two-thirds of the elected Members of Parliament and Non-Constituency MPs.
Asst Prof Ong said that by not doing so Parliament can change, by ordinary legislation, the definition of marriage that is currently set out in Singapore laws. This is now the case, and the proposed Article 156 would not change that.
Parliament can also, by ordinary legislation, create a system of civil unions, including same-sex civil unions. The proposed Article would not change that.
These can be amended or enacted with a simple majority of sitting MPs.
WHAT DOES IT PROTECT?
Article 156 does not enshrine the definition of marriage in the Constitution, but marriage is defined in other legislation.
Section 12 (1) in the Women’s Charter says that a marriage that is not between a man and a women is void.
It reads: “A marriage solemnised in Singapore or elsewhere between persons who, at the date of the marriage, are not respectively male and female is void.”
The Interpretation Act defines a “monogamous marriage” as “a voluntary union of one man and one woman to the exclusion of all others”.
There are various policies that are based on these definitions of marriage including public housing policies, financial benefits for married couples, adoption and media and education policies.
WHY NOW?
At the National Day Rally, Prime Minister Lee Hsien Loong gave two main reasons for the repeal of Section 377A and the proposed amendment to the Constitution to protect the traditional definition of marriage.
He said that society is now more accepting of homosexuality and that most accept that it should not be a crime for consenting men to have sex in private.
The other reason was there was a real risk that Section 377A could be overturned in a future court challenge, on the grounds that it breaches the equal protection provision in the Constitution.