Definition of marriage and related policies should not be determined by courts: Masagos

SINGAPORE: The definition of marriage and related policies should not be determined by the courts, Minister for Social and Family Development Masagos Zulkifli said in Parliament on Monday (Nov 28).

If anything, a proposed constitutional amendment will provide "greater protection" than currently exists both for the definition of marriage and related policies, he added.

The minister was speaking during a debate on a proposed change to the Constitution to "protect the definition of marriage"  - as a union between a man and a woman - from being challenged in the courts.

Also concurrently debated was the Government's proposed repeal of Section 377A of the Penal Code, which criminalises consensual sex between men.

"This Government will not use our current super-majority in Parliament to tie the hands of the future generations," said Mr Masagos.

"Hence, the constitutional amendment will not prevent future Governments, elected by the people, from amending the legal definition of marriage by a simple majority in Parliament, should they choose to do so.

"This is how democracy is," he said.

Prime Minister Lee Hsien Loong said in his National Day Rally speech in Aug that Section 377A, a colonial-era law, would be repealed and a constitutional amendment made regarding the definition of marriage.

Mr Masagos noted that Mr Lee had said the Government had "no intention" of changing the definition of marriage and policies relying on that definition, such as public housing, education, adoption rules, advertising standards and film classification.

Deputy Prime Minister Lawrence Wong, leader of the People's Action Party's (PAP) fourth generation or 4G team, also said that the Government would not change these "under his watch" if the PAP wins the next General Election, noted Mr Masagos.

"I reiterate these assurances in this House," said Mr Masagos.

"Ultimately, whether marriage in Singapore will remain as a union between a man and a woman depends on the consensus in society, shaped by the values we all hold.

"So long as society strongly supports the current definition of marriage, no Government will change the definition. If society's support erodes, no amount of legislation or constitutional entrenchment will prevent change.

"On our part, the Government is doing all it can to promote social norms and values aligned to the current definition of marriage. But it is not something the Government can accomplish on its own," he said.

"The transmission of social values to the next generation is something Singaporeans practice within their own families and with their loved ones."

Mr Masagos also said that "a responsible government should not leave the courts to grapple with controversial social issues".

The court's function was not to settle political questions or rule on social norms and values, nor to engage with the political, social, ethical and other dimensions of the issues, he added.

"Litigation is a zero-sum, adversarial process with win-lose outcomes. It is unlike a political process, where the interests of stakeholders can be considered, accommodation can be sought, to reach consensus."

"HOMOSEXUALS HAVE A PLACE IN OUR SOCIETY"

Mr Masagos said that while some groups in Singapore may wish to "maximise their own positions" on the issue, this could cause resistance, leading to pushback and dividing society further.

"Singapore will not come out well in the end. It is therefore important that certain groups do not push beyond what is acceptable to our society. In most cases, society needs time to adjust to change."

Mr Masagos, who is also Minister-in-charge of Muslim Affairs, said Singapore was "fortunate that our religious leaders understand the context of our diverse society and their communities trust the Government to treat all faiths completely impartially".

"We also continue to protect all from scorn and harm. This includes homosexuals who are members of our society, our kith, our kin," he said.

"Homosexuals have a place in our society, and space to live their lives in Singapore. In our families, we should not exclude our loved ones who are homosexuals.

"In our communities, they like other Singaporeans, have access to education and employment, to healthcare and social services, to protection from violence and harassment."

On marriage and family, however, most Singaporeans "wish to retain current norms", said the minister, adding that the Government shared this view.

"As a society, regardless of your views on marriage, family or homosexuality, no one should feel unsafe expressing your views, or fear being cancelled, bullied or discriminated against.

"It is dangerous for our society if we do not learn to respect others who hold differing views from us. This threatens the common space, and Singapore will not be able to progress as a cohesive society."

CONSTITUTIONAL AMENDMENTS

If passed, the Bill will create a new Article 156 under the general provisions of the Constitution. This will make it clear that Parliament can take action to "define, regulate, protect, safeguard, support, foster and promote" marriage, said Mr Masagos.

The constitutional amendment would empower Parliament to continue to make and amend laws to define marriage, and the interpretation of other constitutional provisions must also recognise this, he said.

Article 156 will also allow the Government and any public authority to exercise their functions in a similar way to "protect, safeguard, support, foster and promote" marriage, said Mr Masagos, citing some examples:

• The Housing and Development Board (HDB) can implement public housing policies that give preference to married couples
• When evaluating adoption applications, the Ministry of Social and Family Development (MSF) can take into account "the public policy goal to foster and promote the formation of families within the context of marriage"
• Curricula for pre-schools and Ministry of Education (MOE) schools are to centre on "the values that reflect Singapore's mainstream society", referring to heterosexual marriage and children raised in such a family
• Sexuality education will be "age-appropriate", which means not featuring same-sex parents or same-sex romantic relationships in pre-schools and primary schools. At older ages, any curricula will "focus on educating our young to treat everyone with respect and empathy but will not promote same-sex relationships"
• When regulating media content, the Infocomm Media Development Authority (IMDA) is guided by principles that include prevailing social norms and values

The Article will also provide that nothing in Part 4 of the Constitution - which sets out the eight fundamental liberties - will invalidate any legislative definition of marriage as a union between a man and a woman. Laws and executive actions also cannot be invalidated by Part 4 just because they are based on a heterosexual definition of marriage.

Part 4 of the Constitution sets out the eight fundamental liberties: Liberty of the person; prohibition of slavery and forced labour; protection against retrospective criminal laws and repeated trials; equal protection; prohibition of banishment and freedom of movement; freedom of speech, assembly and association; freedom of religion; and rights in respect of education.

"We need Article 156 to cover all of Part 4 so that it can apply to other radical legal arguments that may be brought in the future," said Mr Masagos, describing the Article as a "strong shield".

"However, the shield is also precise, where it only protects the heterosexual definition of marriage, and the laws and policies that rely on this definition."

He added that such exceptions to the fundamental liberties already exist, pointing to articles that exempt any law regarding Group Representation Constituencies or the Internal Security Act from being invalidated by them.

In Article 156, the Government has "struck the balance in favour of having the strongest protection for the heterosexual definition of marriage adopted by Parliament, and the ability of Parliament and the Government to make laws and policies on the basis of this definition".

"This reflects the importance of heterosexual marriage in our society," said Mr Masagos.

The minister also rejected any characterisation of Article 156 as an "ouster clause", or a clause that prohibits judicial review of executive action by the courts.

"To be clear, the nature of Article 156 is not an 'ouster clause'. Instead, it provides exceptions or limits to the fundamental liberties," he said.

NOT MAJORITARIAN OR RELIGIOUS APPROACH

Wrapping up his speech, Mr Masagos said that religious groups could continue to preach about homosexuality according to their religious beliefs, but "no one can violate the laws of the land or instigate violence or intimidation towards others or a particular group".

"We are protected by the constitutional right to be free to profess, practice and propagate our religion. But this right is not absolute," he said.

He also emphasised that the Government's "pro-family values and position" were not a result of a majoritarian or religious approach.

"It is one that we share in common as Singaporeans, and what this Government believes in and stands for," he said. "It is in the public interest and not the narrow interest of a specific religious group."

The constitutional amendment is a "calibrated approach" that seeks to address concerns on whether the repeal of Section 377A will cause a "sudden shift", said Mr Masagos.

"However, it is also done in a way not to tie the hands of a future Parliament. Above all, we want to ensure that Parliament should be the main platform to discuss sensitive issues and not the courts."