1. The Penal Code (Amendment) Bill and the Constitution of the Republic of Singapore (Amendment No. 3) Bill were introduced for First Reading in Parliament today.
a. The Penal Code (Amendment) Bill will repeal Section 377A of the Penal Code 1871, which criminalises sex between men.
b. The Constitution of the Republic of Singapore (Amendment No. 3) Bill will amend the Constitution to protect the current definition of marriage, as well as laws and policies based on this definition, from Constitutional challenge.
Penal Code (Amendment) Bill
2. The Prime Minister announced the Government’s plans to repeal Section 377A at the National Day Rally 2022. The Government had consulted various stakeholders extensively before coming to this decision. The impetus for the repeal are as follows
a. Attitudes towards homosexuality have shifted appreciably. While Singapore remains a conservative society, gay persons are now better accepted in Singapore, especially among the young. Most people accept that a person’s sexual orientation and behaviour is a private matter, and that sex between men should not be a criminal offence. From the national point of view, private sexual behaviour between consenting adults does not raise any law-and-order issues.
b. Based on the recent Court of Appeal decision on Section 377A, there is a significant risk that the Courts will strike down Section 377A in a future challenge, on the ground that it breaches the equal protection clause in Article 12 of the Constitution. It would be unwise and irresponsible for Parliament to ignore this risk and do nothing.
Constitution of the Republic of Singapore (Amendment No. 3) Bill
3. Even with the repeal of Section 377A, most Singaporeans still want to maintain the current family and social norms, where marriage is between a man and a woman, and children are brought up in such a family structure. The Government supports this view, and has affirmed that it will uphold the current heterosexual definition of marriage and the family structure that arises from it.
4. Today, marriage is defined in our laws as a union between a man and a woman. Many of Singapore’s laws and policies are based on this definition (e.g. adoption, housing, education). However, the legal definition of marriage, and laws and policies based on that definition, can be challenged in the Courts on Constitutional grounds, just as Section 377A was.
5. As stated by the Prime Minister during the National Day Rally 2022, the Courts are not the right forum to decide on such important socio-political issues that are fundamental to society. 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. Hence, the Government will amend the Constitution to protect the heterosexual definition of marriage, and laws and policies based on the heterosexual definition of marriage, from a successful constitutional challenge.
Introduction of Article 156 (Institution of marriage) into the Constitution
6. The Constitution of the Republic of Singapore (Amendment No. 3) Bill will introduce a new Article 156 (Institution of marriage) in Part 13 of the Constitution.
7. Article 156(1) clarifies that Parliament has powers to make laws to define, regulate, protect, safeguard, support, foster, and promote the institution of marriage. Article 156(2) similarly provides that the Government and public authorities may, in the exercise of their executive authority, protect, safeguard, support, foster, and promote the institution of marriage. 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.
8. Article 156(3)(a) protects laws defining marriage as a union between a man and a woman from being invalidated by Part 4 of the Constitution (Fundamental Liberties).
9. Article 156(3)(b) and (4) similarly protect laws and policies based on a heterosexual definition of marriage from being invalidated for that reason by Part 4 of the Constitution. For example, the equal protection clause in Article 12 of the Constitution would not invalidate such laws and policies by reason that they are based on a heterosexual definition of marriage.
10. The Bill does not codify or enshrine the definition of marriage (i.e. as between a man and a woman) in the Constitution.