Exactly how could marriage turn out to be enshrined in the Constitution?
Assistant Professor Kenny Chng of SMU’s Yong Pung How School of Law pointed out two options for enshrining marriage in the Constitution.
The first way is by “direct incorporation”, that is, directly expressing a definition of marriage in the Cosmetic and declaring that only such marriages will be recognised in Singapore.
In general, constitutional amendments need the support associated with two-thirds of the total number of Members associated with Parliament (MPs), excluding Nominated MPs. Currently, this means that at least 63 votes from the 94 elected and Non-Constituency MPs would be necessary. The ruling celebration has 83 MPs.
The second way is by which includes a constitutional supply that references the kind of provisions of the Women’s Charter or Decryption Act and protects them from constitutional challenge. Such “shielding provisions” already exist in Singapore’s Constitution, Asst Prof Chng pointed out.
The is Article 149(1) of the Constitution upon legislation against subversion, which shields laws and regulations designed to prevent certain actions, such as the promotion of ill will and hostility between different races, through constitutional challenge.
Article 39A(3) of the Constitution, on Group Representation Constituencies (GRCs), also shields GRC-related legislation from constitutional challenge.
This kind of “shielding provisions” can be passed through the ordinary procedure for legislative amendment, needing the support of the simple majority of the particular MPs who are existing and voting.
But when asked this particular question, another legal expert said it “makes no sense” to enshrine a definition of marriage within the Constitution, and that there is certainly “no need to do so”.
“If the idea is to make it tougher to amend the definition of marriage, all that needs to be done is to make certain provisions of the law… amendable only by two-thirds majority in Parliament, ” said Adjunct Teacher Kevin Tan from the National University of Singapore’s Faculty associated with Law.
He referred to Section twelve of the Women’s Charter as an example, and adds: “Entrenchment can be done inside the respective legislation without having to tamper with the Constitution. ”
If marriage is enshrined in the Constitution, is it here to stay? How can it be challenged by those who oppose it?
Asst Prof Chng said that both “direct incorporation” and “shielding provisions” are able to guard a definition of relationship from constitutional challenge through judicial evaluation.
Judicial review is the process by which the High Court exercises supervisory jurisdiction over entities that perform public functions plus duties.
Depending on which of the two methods is used, the difficulty of making subsequent changes to a definition of marriage through the political process will differ, because they require different degrees of support in Parliament.
On constitutional challenges, Asst Prof Ong highlighted a legal theory that the Constitution cannot be amended in a way that alters certain “basic features” or its “basic structure”.
“Our courts never have had an occasion in order to rule on regardless of whether this theory applies in Singapore, ” he said, even though various academics possess argued that it can.
“Our Court of Appeal has remarked that, presuming this theory does apply in Singapore, only ‘something fundamental and essential to the political system’ would be portion of the ‘basic structure’. ”
When requested this question, Adj Prof Tan said: “The debate provides focused too much over the meaning of ‘marriage’ and not the consequences of being married. ”
He said that this could require a consideration showing how those who are married are usually treated differently through those who are not.
Some examples he reported are eligibility for brand spanking new public housing, getting considered next-of-kin pertaining to situations like making medical decisions, becoming considered a spouse within the meaning from the Intestate Succession Act and adoption.
“Differential treatment between classes of individuals” engages Article 12 of the Constitution governing equality and equivalent protection of the regulation, said Adj Prof Tan.
“The point here is that whenever the law treats one particular class differently from another (regardless from the definition of marriage), there is a potential for a constitutional challenge. ”
There have been no constitutional challenges in these under the radar areas since the “big challenge” has been against Section 377A so far, he said.