Section 377A: what led to the decision to repeal and where do we go from here

marriage, definition, constitution, law, court, government, challenge, parliament, political, fundamental, shanmungan, Singapore, 377A, change, family, majority, position, structure, strengthen

Why repeal?

377A have been struck down by the courts in other countries, including India.

In Singapore, there had been 4 applications to the Supreme Court to challenge it as ‘unconstitutional’ based on Article 12 where all persons are equal before the law and are entitled to equal protection of the law. Though unsuccessful so far, at the last challenge in Feb this year, Chief Justice Sundaresh Menon said in the judgement that s377A was ‘unenforceable in its entirety’.
 
The Government studied the judgment “very carefully” and took the overall view that there is a “significant risk” that Section 377A could be struck down on the grounds that it breaches the Constitution’s Equal Protection provision.
 
“So we felt we can’t ignore this risk and do nothing. Because if that happens, if 377A is struck down, our marriage laws will also come under challenge on the same grounds,” Second Minister for Law Edwin Tong said in an interview with CNA. 

'Everything could go in one sweep'

“It can be challenged, it can be asked… why should a marriage only be between a man and a woman? Why shouldn’t it be possible for 2 men or 2 women to be married? Someone could argue that marriage policies are in breach of Article 12,” Law Minister Shanmugam said in an interview with the Straits Times.  Such arguments about marriage have been made elsewhere successfully, he added.
 
If one day such a challenge succeeds, “everything could go in one sweep”, said Mr Shanmugam, including many of the other laws and policies built on the current definition of marriage, such as those on public housing, education and media policies.
 
When that happens, same sex marriages could be recognised not because Parliament has passed a law but because of a judgement in court.
 
“Then, even if the majority of MPs opposed same sex marriage, Parliament may not be able to simply change the law to restore the status quo ante. Because to reverse the position, Parliament may have to amend the Constitution, and that would require a two-thirds majority, ” PM Lee explained at the National Day Rally

What should the government's posture be?

These are fundamentally political issues to be decided by Parliament, not legal problems, PM Lee said.
 
Judges interpret and apply the law. That is what they are trained to do. They have neither the expertise nor the mandate to settle political issues,” he added.

Politically expedient to do nothing but that would not be right

Such political issues should not be decided by the judiciary, but by the legislature, said Mr Shanmugam. 

With emotions running high on both sides, it would have been politically expedient to keep quiet and let the Court deal with it.
 
But doing nothing risks damaging the fundamental fabric of society if Section 377A or even the definition of marriage were struck down in court.
 
“If Parliament doesn’t act, either because of fear or because of a lack of will, and therefore doesn’t deal with the law which may be in breach of the Constitution, then…(it) is not doing its job. Then, you make it difficult for the Courts to exercise restraint,” Mr Shanmugam said.

Court processes are “adversarial” by nature

DPM Lawrence Wong said, “Any court judgment will lead to a win-lose outcome for the parties involved, and such an outcome will divide and polarise our society further.”

“The courts themselves have said that the political realm is the more obvious choice for such decisions to be made because through a political process, we can accommodate and balance the different views and aspirations of Singaporeans,” he added.

What the government plans to do; the prerogative of Parliament to define marriage

The repeal of Section 377A will be done in a “very careful and controlled manner” that reflects societal attitudes.

Along with the repeal, the government will also work to guard against the current definition of marriage being challenged by making clear in the Constitution that Parliament has the prerogative to define the institution of marriage in the way it has been defined in the Woman’s Charter, and can make other pro-family policies on the basis of that definition, Mr Shanmugam said.
 
This is different from enshrining the definition of marriage in the highest law of the land but it will stave off legal challenges on the definition of marriage, he said. It will make it difficult to challenge the definition of marriage and the policies that rely on it.

The PAP Government's position on marriage and family

The intended amendment to the Constitution leaves open the possibility for Parliament to change the definition of marriage through a simple majority.

The PAP government’s position is very clear, said Mr Shanmugam.

“We are committed to strengthening the current structure of marriage, strengthening the family structure and the policies that surround that structure of family. We think that’s what is fundamental for Singapore. And in fact, we are amending the Constitution to strengthen their position.”

On changing the definition of marriage

Mr Shanmugam added that any political party or group that wants to push for same-sex marriage will be able to do so.

“They will have to put that in their manifesto, fight elections, get a majority and then change the definition of marriage,” he said.

Entrench definition of marriage into Constitution?

Some religious groups have urged the Government to entrench the definition of marriage in the Constitution.

The National Council of Churches Singapore, for example, wants the definition of marriage expressed in the Constitution and a declaration that only such marriages will be recognised. 

Similarly, the Roman Catholic Archdiocese of Singapore has said that it was necessary to enshrine and define marriage as between a man and a woman in the Constitution before 377A is repealed. 

Not approriate to entrench definition of marriage into Constitution

Mr Edwin Tong said it may not be appropriate to entrench the definition of marrige in the Constitution because this entrenchment would elevate marriage to the same level as fundamental rights in our Constitution – rights such as life and personal liberty. “And this would fundamentally change the whole complexion and schema of the Constitution,” he added. 

Another point Mr Tong pointed out was this: “If we hard coded marriage in this way in the most fundamental legal document in Singapore, we may end up prompting those who disagree with this position to campaign, to mobilise, agitate perhaps even with greater intensity, and we don’t think this will be good for society.”

Mr Tong reiterated that the Government is proposing “a very carefully calibrated package of amendments to strike the right balance” for Singapore.

In conclusion

s377A will be repealed in a controlled and careful way to accommodate and balance the different views and aspirations of Singaporeans

At the same time, the Government will strengthen protection for the current definition of marriage from being challenged in the court. 

The Government also made clear its position on marriage and family. It believes that the current structure of marriage and family is fundamental for Singapore, and is fully committed to uphold this structure and all the policies that rely on this structure. 

Any group or political party that wants to push for same-sex marriage will have to put that in their manifesto, fight elections, get a majority and then change the definition of marriage in Parliament. 

The Will of the majority. 

Let us work hard to strengthen and build strong families where children grow up in a stable and loving environment. 

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