SINGAPORE, Oct 20 — The government today (October 20) tabled two separate Bills to repeal Section 377A of the Penal Code and amend the Constitution to protect the current definition of marriage from being challenged in the courts.
The Ministry of Home Affairs (MHA) introduced the Penal Code (Amendment) Bill to repeal Section 377A, which criminalises sex between men, while the Ministry of Social and Family Development (MSF) tabled the amendment Bill to introduce a new clause into the Constitution.
The amendment Bill tabled by MSF “does not codify or enshrine the definition of marriage (ie. as between a man and a woman) into the Constitution,” said the two ministries in a joint statement yesterday.
Instead, the clause clarifies that the Parliament has powers to make laws to define, protect and promote the institution of marriage, and that policies and laws based on this definition are protected from being challenged in court.
The two Bills will be debated on at a later date. Voting for each Bill will then be conducted separately as each requires a different threshold to be passed in Parliament.
Any amendment to the Constitution requires a two-third supermajority support by Members of Parliament, while other laws require a simple majority to be passed.
The introduction of the two Bills today came after Prime Minister Lee Hsien Loong announced during his National Day Rally speech on August 21 that Singapore will strike down the law that criminalises sex between men.
During the same speech, he had also announced that the Constitution will be amended to protect the definition of marriage — as being between a man and a woman — from being challenged in the courts.
Government ministers later said in media interviews that the Government will do so without entrenching or “hard coding” the definition directly into the Constitution, a move that some religious groups had earlier called for.
Repeal of Section 377A
Section 377A of the Penal Code currently criminalises “any act of gross indecency” between men, punishable with a prison term of up to two years.
In their joint statement today, MHA and MSF said that the Government’s decision to repeal Section 377A was made after consulting various stakeholders extensively, and outlined two broad reasons.
Firstly, societal attitudes towards homosexuality have “shifted appreciably”.
“Most people accept that a person’s sexual orientation and behaviour is a private matter, and that sex between men should not be a criminal offence,” said the ministries.
From the national point of view, consensual sex between men also does not raise any law-and-order issues, they added.
Secondly, there was a significant risk of Section 377A being struck down by the courts in a future challenge, on the grounds that it breaches the equal protection clause of the Constitution.
Article 12 of the Constitution states that all persons are equal before the law and entitled to the equal protection of the law. Any law that is inconsistent with the Constitution can be struck down by the courts.
“It would be unwise and irresponsible for Parliament to ignore this risk and do nothing,” said MSF and MHA.
Protecting policies based on definition of marriage
The ministries said that the current legal definition of marriage in Singapore — a union between man and a woman — can be challenged in the courts on Constitutional grounds, along with laws and policies based on this definition.
The Bill tabled today sought to introduce a new Article 156 (Institution of marriage) clause into the Constitution.
Article 156(1) clarifies that Parliament has powers to make laws to define, regulate, protect, safeguard, support, foster and promote the institution of marriage. Article 156(2) provides that the government and public authorities may make policies to achieve these objectives.
“Examples of measures include public housing policies and financial benefits for married couples, as well as education and media policies that promote and safeguard the institution of marriage,” said MHA and MSF.
Article 156(3)(a) protects laws defining marriage as a union between a man and a woman from being invalidated by Part 4 of the Constitution, which covers the fundamental liberties of an individual.
Similarly, Article 156(3)(b) and 156(4) protect laws and policies based on such a definition, from being challenged in the courts on such Constitutional grounds.
Recapping Lee’s National Day Rally, the ministries said the courts are not the right forum to decide on such socio-political issues fundamental to society.
“Such issues should be decided by Parliament, where there can be a full debate that accounts for different perspectives and considerations, and is not tied to a binary (win-lose) decision like in the courts,” the ministries added. ― TODAY
