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Bills to repeal 377A, amend Constitution to protect definition of marriage tabled in Parliament

Bills to repeal 377A, amend Constitution to protect definition of marriage tabled in Parliament

The traditional light-up for the Pink Dot event in 2019 spelt out a call to repeal Section 377A of the Penal Code, which criminalises sex between men. (Photo: CNA/Cindy Co)

SINGAPORE: Bills to repeal a law criminalising gay sex and to amend the Constitution of Singapore to protect the existing definition of marriage were both tabled in Parliament on Thursday (Oct 20) for their first readings, with debate on them expected later next month.
 
The proposed legislative changes were expected after Prime Minister Lee Hsien Loong said in his National Day Rally speech on Aug 21 that Section 377A, a colonial-era law in the Penal Code that criminalises sex between men, would be repealed.
 
But in order to maintain current family and social norms, which define marriage as between a man and a woman, Mr Lee said that constitutional amendments will be made to protect the current definition of marriage.

On Thursday, Home Affairs and Law Minister K Shanmugam tabled the Penal Code (Amendment) Bill to repeal Section 377A, while Minister for Social and Family Development Masagos Zulkifli introduced the Constitution of the Republic of Singapore (Amendment No. 3) Bill to amend the Constitution.
 
The amendment comes in the form of Article 156 on the Institution of Marriage, which states in part (1) that the Legislature, that is Parliament, may, by law, define, regulate, protect, safeguard, support, foster and promote the institution of marriage. 
 
Article 156 (2) provides for the Government and public authorities to protect and promote the institution of marriage in the exercise of their functions.

The effect of these new provisions is that Parliament can define the institution of marriage and with the Government, can make policies on the basis of that definition.
 
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.
 
Article 156(3) and 156(4) protect laws defining marriage as a union between a man and a woman, and laws and policies based on such a definition, from being invalidated under Part 4 of the Constitution (Fundamental Liberties).
 
They ensure that these laws and policies cannot be challenged in court for being in breach of fundamental liberties provided for in the Constitution.
 
However, it has been repeatedly emphasised that this will not codify or enshrine the definition of marriage as between a man and a women into the Constitution.

Full Text of the proposed Article 156

156. (1) The Legislature may, by law, define, regulate, protect, safeguard, support, foster and promote the institution of marriage.
 
(2) Subject to any written law, the Government and any public authority may, in the exercise of their executive authority, protect, safeguard, support, foster and promote the institution of marriage.
 
(3) Nothing in Part 4 invalidates a law enacted before, on or after the date of commencement of the Constitution of the Republic of Singapore (Amendment No. 3) Act 2022 by reason that the law
              (a) defines marriage as a union between a man and a woman; or
              (b) is based on such a definition of marriage.

(4) Nothing in Part 4 invalidates an exercise of authority before, on or after the date of commencement of the Constitution of the Republic of Singapore (Amendment No. 3) Act 2022 by reason that the exercise is based on a definition of marriage as a union between a man and a woman.

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Mr Lee had said in his National Day Rally speech that attitudes towards homosexuality have shifted considerably, and while Singapore remains a broadly conservative society, gay people are now better accepted, especially among younger Singaporeans.
 
“Most people accept that a person’s sexual orientation and behaviour is a private and personal matter, and that sex between men should not be a criminal offence,” he said.
 
The Government had consulted stakeholders extensively before making the decision to repeal Section 377A, the Ministry of Home Affairs (MHA) and the Ministry of Social and Family Development (MSF) said in a joint statement on Thursday.
 
“From the national point of view, private sexual behaviour between consenting adults does not raise any law-and-order issues,” said the statement.
 
The other reason for the repeal is that based on a recent court decision on Section 377A, there is a significant risk that it could be struck down by the courts in a future challenge, on the grounds that it breaches Article 12 in the Constitution, which guarantees equality before the law and equal protection of the law to all.
 
But the Government has affirmed that it will uphold the current family structure where marriage is between a man and a woman and the laws and policies that are based on this. It is stated in the Women’s Charter that a marriage between people who are of the same sex is void.
 
MHA and MSF said in their joint statement that many of Singapore’s policies are based on the current construct of heterosexual marriage, such as adoption, housing and education. However, this legal definition of marriage, and laws and policies based on it, can be challenged in the courts on constitutional grounds, just as Section 377A was.
 
Mr Lee, and other senior politicians, have said that Parliament, and not the courts, is the right place to decide on such important socio-political issues. The decision was therefore made to amend the Constitution to prevent such challenges in court.

This comes after more than a decade of controversy, protests and challenges both from those opposed to Section 377A, and those in support of the law, which was written into the books in the 1930s when Singapore was under British rule.
 
The law was last debated in Parliament in 2007 when, in a review of the Penal Code, authorities kept Section 377A, while repealing Section 377 on “carnal intercourse against the order of nature with any man, woman or animals”. Section 377 was then replaced with a law to criminalise sex with a human corpse.
 
It was decided then that Section 377A would stay but not be actively enforced.
 
While Section 377A has not been enforced, it became a rallying point for gay rights activists and the subject of yearly protests at Pink Dot, as well as court challenges. 

If passed, the legislative changes would end one chapter of the socio-political conflict between conservatives intent on protecting family values and activists fighting for equal rights for homosexuals.    
 
After the first reading, the Bills are due for a second and third reading in the House before being voted on. 
 
The Bills will be voted on separately, with the repeal of Section 377A requiring a simple majority to pass.

The constitutional changes will need support from two-thirds of elected and non-constituency MPs to pass, which means at least 63 votes from the 92 elected MPs and two Non-Constituency MPs. The ruling People's Action Party has 83 MPs.

While the party whip can be lifted for MPs to vote “according to their conscience” in some instances, it will not be lifted for this vote, which is “a matter of public policy”, Deputy Prime Minister Lawrence Wong had said earlier.

Source: CNA/hm
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