Constitution will be amended to protect Parliament's right to define marriage, says Shanmugam
As it repeals Section 377A, the Government will also make clear in the Constitution that it is Parliament's prerogative to define marriage as being between a man and a woman and to make other pro-family policies on that basis, Home Affairs and Law Minister K. Shanmugam said on Monday (Aug 22).
This is different from enshrining the definition of marriage in the highest law of the land, but will stave off legal challenges on the definition of marriage, he added.
His comments at an interview with The Straits Times and Lianhe Zaobao shed light on how exactly the Government intends to safeguard marriage and other policies as it does away with Section 377A of the Penal Code that criminalises sex between men.
Prime Minister Lee Hsien Loong announced at the National Day Rally on Sunday that the colonial-era law, seen as a moral marker by conservative groups, will be repealed.
In tandem with the repeal, he had said, the Government would move to safeguard marriage because as the law stands, marriage as it is now defined can be challenged on constitutional grounds in the courts, just like Section 377A has been challenged.
To guard against this, the Government is planning to explicitly state in the Constitution that Parliament can 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, said Mr Shanmugam.
This will make it difficult to challenge the definition of marriage and the policies that rely on it, he added.
If this is not done, there is a risk that the definition of marriage can be challenged on the basis of being discriminatory under Article 12 of the Constitution, which guarantees equal protection under the law.
"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 two men or two women to be married? Someone could argue that marriage policies are in breach of Article 12, and such arguments about marriage have been made elsewhere successfully," he said.
This will not just affect marriage, but also many of the other laws and policies built on the current definition of marriage as being between a man and a woman, such as policies on public housing, education and media policies, he added.
But such political issues should not be decided by the judiciary, but by Parliament, he said.
In fact, the intended amendment to the Constitution leaves open the possibility for Parliament to change the definition of marriage through a simple majority.
While Constitutional amendments require a two-thirds majority in Parliament to pass, changes to other pieces of legislation, including the repeal of Section 377A, require a simple majority.
Mr Shanmugam said: "This government's position is very clear and you've also heard what Deputy Prime Minister Lawrence Wong has said.
"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."
He 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.
Religious and conservative groups have called for some kind of guarantee that marriage between a man and a woman will be protected under the law if Section 377A is to go, and have asked for the definition to enshrined in the Constitution.
Asked about this, Mr Shanmugam said: "I want to be clear because I think there's some confusion. The definition of marriage is not going to be in the Constitution. That's not the intention."
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