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

A BILL to repeal Section 377A of the Penal Code, which criminalises sex between men, was introduced in Parliament on Thursday (Oct 20), paving the way for the colonial-era law to be struck from the books.

At the same time, an amendment to the Constitution was introduced to protect the current definition of marriage as being between a man and woman - and government policies made on that basis - from being challenged in the courts on constitutional grounds.

The two Bills will be debated together when Parliament sits on Nov 28, and then voted on separately. This is because repealing a law requires just a simple majority of MPs, while any amendment to the Constitution has to be supported by at least two-thirds of MPs, excluding Nominated MPs.

The Penal Code (Amendment) Bill, introduced in Parliament by Law and Home Affairs Minister K Shanmugam, comes after Prime Minister Lee Hsien Loong said at the National Day Rally in August that the government will repeal S377A and decriminalise sex between men as attitudes towardss homosexuality have shifted appreciably.

A recent Court of Appeal decision and advice from the Attorney-General also point to significant risk of S377A being struck down by the courts in a future challenge to declare the law unconstitutional on the grounds that it breaches Article 12, the equal protection provision of the Constitution, PM Lee said then.

At the same time, most Singaporeans do not want the repeal to trigger a drastic shift in societal norms across the board, PM Lee had said of the government’s consultations with the public, including on the definition of marriage and what is taught in schools.

Article 12 states that all persons are equal before the law and entitled to the equal protection of the law. As the Constitution is the highest law in the land, any law enacted in Parliament but found to be inconsistent with it could be struck down by the courts.

The constitutional amendment, tabled by Social and Family Development Minister Masagos Zulkifli, will introduce a new Article 156 (Institution of Marriage) clause to the Constitution.

It states that Parliament can define the institution of marriage, and make pro-family laws on the basis of that definition. The proposed amendment also spells out that the government and the public authorities may enact policies that protect, safeguard, support, foster and promote the institution of marriage.

The amendment also protects existing laws that define marriage as a union between a man and a woman, and states that such laws and policies cannot be found unconstitutional by the courts on the grounds that they contravene the fundamental liberties set out in the Constitution, such as Article 12.

Examples of such policies include those on public housing, where married couples receive financial benefits, as well as education and media policies that promote and safeguard the institution of marriage.

Should the amendment pass, any change to the heterosexual definition of marriage and laws made on that basis can only happen through Parliament and not through the courts, said the Ministry of Home Affairs and Ministry of Social and Family Development in a joint statement, adding that the Bill does not codify or enshrine the definition of marriage into the Constitution.

“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,” said the statement.

Deputy Prime Minister Lawrence Wong had said previously that the People’s Action Party will not be lifting the whip when Parliament votes to repeal S377A, which means MPs will have to vote according to the party’s position. This followed calls by some quarters for the party whip to be lifted so that MPs can vote freely according to their conscience.

Wong had said in August that repealing the law is a matter of public policy, given that the courts had already said the law would not be enforced.

“At the same time, even as we were to repeal this law, we are making sure that we are putting in place measures to make sure that it will not trigger further societal changes,” he had said then. THE STRAITS TIMES