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Opening Speech by Minister Masagos Zulkifli for Second Reading Of Constitutional Amendment

Type: Official Speeches: Masagos Zulkifli

Topic(s): Children & Families, Marriage Journey

1. Sir, this Bill is linked to the next Bill on the Order Paper, the Penal Code (Amendment) Bill. With your permission, Mr Speaker, I would like to propose that the substantive debate on both Bills take place together. This will allow a holistic debate and enable Members to raise questions or express their views on both Bills during the debate. We will still have the formal Second Reading of the Penal Code (Amendment) Bill to ensure that procedural requirements are dealt with.

Scope of Debate

2. This Bill gives effect to what PM announced at this year’s National Day Rally, that is, the Government will protect the definition of marriage from being challenged in the courts on constitutional grounds. PM had also announced that the Government will repeal section 377A of the Penal Code.

3. In introducing the Constitutional Amendment Bill, my speech will cover

a. The Government’s long-standing position on marriage and family,

b. What the Bill is and why we are taking this approach, and

c. Our unique approach to manage diversity in Singapore.

Commitment to Marriage and Family

4. The PAP Government has been consistent in its strong support for the institution of marriage and the family, through its policies and legislation.

a. One of the first laws enacted by the PAP Government when it came to power was the Women’s Charter in 1961, which defined and regulated civil marriages. This was a landmark piece of legislation that protected the rights of women by legalising only monogamous marriages between a man and a woman.

b. Similarly, the Administration of Muslim Law Act (AMLA) enacted soon after independence in 1966 provided the practice of Muslim law to regulate marriages between Muslims. Under AMLA, marriages must meet the requirements of Muslim law, including between man and woman.

5. There is strong consensus in society where marriage is between a man and a woman; and children should be born and raised within such families.

a. This is the view taken by many Singaporeans, whether religious or not. It is also the view that the Government believes in. It undergirds the shared values that we adopted in 1991.

b. Family is the foundation on which our society is built and sustained, with each generation raising the next to take its place. Without strong families, Singapore cannot thrive, and society cannot perpetuate itself.

c. In his book from Third World to First, Mr Lee Kuan Yew wrote “Singapore depends on the strength and influence of the family to keep society orderly”, Family is the source of values not only for its members but for society. A 2015 Washington Post article aptly suggests that family values is what makes Singapore strong. It captures Mr Lee’s view that when we break away from tested norms, such as the family unit, there is grave disquiet. Family is the building block of society. Indeed, this is wisdom and precisely why we need to be extremely careful to change the construct of the family.

d. To further quote Mr Lee’s words in a 1994 interview – [Family] is the basic concept of our civilisation. Governments will come, governments will go, but this endures.”

6. Hence, our policies also reflect and reinforce this basic idea about marriage and family.

a. We encourage parenthood within marriage;

b. We do not support same-sex family formation; and

c. We maintain our policy against planned and deliberate single parenthood, including using assisted reproduction techniques (ART) or surrogacy.

7. We have made these clear in Parliament on multiple occasions. We have also taken steps to defend our pro-family policies when they are challenged

a. For example, in the adoption case UKM andAG, the Court did not agree with the Government that an adoption order should not be made if it resulted in the formation of a same-sex family unit. Thereafter, the Government made clear its policy position, that it does not support same-sex family formation, surrogacy and planned and deliberate single parenthood, including through ART and/or surrogacy.

b. More recently, Parliament re-enacted the Adoption of Children Act 2022 to make clear that joint adoption applications can only be made by couples whose marriage is recognised in Singapore. Only a man and a woman who are married to each other, can apply together. Adoption should not be used as a process to support the formation of same-sex families.

c. I reiterate today – Singapore’s public policy is and has always been to uphold heterosexual marriage and promote the formation of families within such marriages. Among other things, this public policy has long been embodied in section 12(1) of the Women’s Charter, which invalidates same-sex marriages. Consistent with this policy, an overseas same-sex marriage will, generally, not be accorded legal recognition in Singapore.

8. Our policies clearly reflect the value society places on family formation through marriage. However, we also recognise that there are single unwed parents. We empathise with the challenges that they face. Our focus is on their child’s well-being and on supporting them in their caregiving responsibilities.

a. Hence, we extend Government benefits that support the growth and development of their children. These include subsidies for education, healthcare, childcare and infant care, the foreign domestic worker levy concession, and the Child Development Account. HDB also assesses their requests for housing holistically, based on their individual circumstances.

b. We make a distinction between support and incentive. Thus, we do not provide the Baby Bonus Cash Grant to single unwed parents, because this is an incentive for married couples to have children.

9. Our policies support individuals to get married and have children within marriage. Examples of these policies and measures that rely on the definition of marriage are-

a. Housing, where public housing subsidies and access are prioritised for married couples.

b. Financial benefits that favour married couples, such as the Baby Bonus Cash Gift.

c. ART, where access to IVF and use of frozen gametes for procreation are only allowed for married persons.
d. Adoption, where only married couples can apply jointly.

e. Education, where what is taught in preschools and MOE schools would be based on (i) marriage as between a man and a woman and (ii) such a family as the basic unit of society.

f. Media, where higher age ratings apply for media content which depicts non-traditional family units, such as same-sex families. Our public libraries also do not carry books which depict such family units for very young children.

10. Beyond laws and policies, MSF has also been actively promoting, educating and emphasising the importance of families, through our public education programmes. These programmes inculcate family values such as love, care and concern, respect and commitment to each other in the family. To support parents, Families for Life Council has rolled out parenting programmes in pre-schools, schools and the community. We also dedicated 2022 as the Year of Celebrating SG Families, in which PM announced an annual National Family Week. Most recently, we had launched the Singapore Made for Families 2025. This plan will create a Singapore where families are valued and supported across different chapters of their lives.

11. These efforts reflect the Government’s deep and abiding commitment to the institution of marriage as a union between a man and a woman, and to the formation of families within marriage.

What the Bill is and Why we are Taking this Approach

12. Now I turn to this Bill, which will make it possible to continue with these pro-family policies, and the approach embedded in the Bill.

13. The Constitution is the supreme law of the land, and our other laws must not conflict with it. Overall, the Constitution is like the “operating system” for Singapore. The four key functions of the Singapore Constitution are

a. It establishes the key organs of State like the President, Parliament, the Government, the Judiciary, the Public Service and regulates their powers with a system of checks and balances.

b. It protects the sovereignty of Singapore.

c. It provides for citizenship.

d. It protects the fundamental liberties of individuals.

14. Specific to the fundamental liberties, they are found in Part 4 of the Constitution. They are Articles 9 to 16 and include, among others, liberty of the person and freedom of speech, assembly and association. Many of these rights are not absolute rights. They are subject to exceptions such as the maintenance of public order, morality and national security.

15. If an individual considers that their constitutional rights have been infringed by a law or by the actions of a public body, he or she may bring a legal challenge in court. Hence, it is possible for individuals to argue that our existing laws and policies on marriage are unconstitutional and seek a ruling from the Court to that effect. Just as there have been challenges on the constitutionality of s377A, there can also be challenges to laws and policies related to marriage.

16. The experiences of other jurisdictions show the perils of court-led change.

a. Most recently, in August 2022, the Indian Supreme Court observed that the definition of a family unit should be expanded to include homosexual relationships as well as unmarried partnerships or same-sex relationships. This did not even arise from a challenge of definition of family per se. It arose from a case where an employer denied a nurse her application for maternity leave because she had already taken leave to care for her husband’s children from a previous marriage.

b. Before this, in 2018, the Indian Supreme Court also struck down s377 of the Indian Penal Code, which similarly criminalised male homosexual acts.

c. We also see the same trend in other jurisdictions. In the US for instance, controversial issues such as abortion are litigated and relitigated in the courts. When the courts decide, things change overnight, with drastic social repercussions that polarise society.

17. Hence, we are proactively safeguarding the institution of marriage and related laws and policies from being challenged in Court. This will allow the Government to continue to make laws and policies, which depend on heterosexual marriage as its foundation.

18. There have been questions on why the Government is intervening now. Why repeal? Why even amend the Constitution? Perhaps we should leave things as they are, let the Courts decide when there is a challenge. Why do this now, when there are other issues of concern, such as the cost of living? That might well be politically expedient.

a. We acknowledge that there are indeed other issues of concern to Singaporeans, such as cost of living. To use that as a reason for inaction might be politically expedient but it would not be the right or responsible thing to do.

b. We have assessed that there is a significant risk to our laws being struck down. We cannot just ignore the legal risks. This amendment is necessary, and it is the right thing to deal with it now and not delay.

c. We have the mandate and the responsibility to govern, and we must put forward what we think is best for Singapore and Singaporeans. This includes making changes in a calibrated and careful manner that may not please everyone.

19. We appreciate our courts for exercising wisdom and restraint on this matter. But a responsible government should not leave the courts to grapple with controversial social issues.

a. The role of the courts is to interpret and apply the law. It is not their constitutional function to settle political questions or rule on social norms and values. It is not their function to engage with the political, social, ethical and other dimensions of the issues.

b. Nor do the courts wish to do so. Litigation is a zero-sum, adversarial process with win-lose outcomes. It is unlike a political process, where the interests of stakeholders can be considered, accommodation can be sought, to reach consensus. The Courts also recognise that controversial social issues are best dealt with within the sphere of Parliament.

20. This Bill is what a responsible government, carrying out its duty to the people of Singapore, would introduce. It allows the political process to balance different interests and perspectives and does not pass the buck to the Court to rule on political questions, which it is not set up to do.

21. Let me now elaborate on the provisions of the Bill. There will be a new Article 156, under the General Provisions of the Constitution.

22. Clause 1 of the Article makes clear that Parliament can act to define, regulate, protect, safeguard, support, foster and promote marriage. For example, today, the Women’s Charter and AMLA define civil and Muslim marriages respectively and make clear that same-sex marriages are not valid. This clause empowers Parliament to continue to make and amend laws for these purposes. The interpretation of other Constitutional provisions must recognise this. For example, in applying the reasonable classification test under Article 12(1), the courts must recognise that the promotion and safeguarding of heterosexual marriage are legitimate and permissible legislative objects.

23. Clause 2 of the Article applies to the Government and any public authority. It allows them to exercise their functions to protect, safeguard, support, foster and promote marriage. This includes but is not limited to the following situations

a. HDB can implement public housing policies that give preference to married couples to support, foster and promote marriage.

b. MSF, when they evaluate adoption applications, can recognise and take into account the public policy goal to foster and promote the formation of families within the context of marriage as defined in Women’s Charter and AMLA.

c. Curricula for preschools and MOE schools centre on the values that reflect Singapore’s mainstream society. That is, marriage as being a union between a man and a woman; and children being born within marriage and raised within such a family construct.

d. In the context of sexuality education, content will be age-appropriate. This means, for example, in preschools and primary schools, our curriculum will not feature same-sex parents or same-sex romantic relationships. At older ages, if introduced, we will focus on educating our young to treat everyone with respect and empathy but will not promote same-sex relationships.

e. IMDA, in regulating media content, is guided by principles that include prevailing social norms and values that are generally acceptable to members of the public and protecting younger audiences from age-inappropriate content.

24. Clause 3(a) provides that nothing in Part 4 of the Constitution (which sets out the eight fundamental liberties) will invalidate any legislative definition of marriage as a union between a man and a woman. Clause 3(b) and Clause 4 respectively provides that laws and executive actions cannot be invalidated by Part 4 just because they are based on a heterosexual definition of marriage.

25. Some may ask why specify all the other fundamental liberties in Part 4, and not just Article 12. Minister Desmond will explain but broadly, we need Article 156 to cover all of Part 4 so that it can apply to other radical legal arguments that may be brought in the future, and based on other articles in Part 4, Article 156 will provide a “strong shield”. However, the shield is also precise, where it only protects the heterosexual definition of marriage, and the laws and policies that rely on this definition.

26. In effect, Article 156 is an exception to the fundamental liberties. There are already such exceptions. For example,

a. Article 39A empowers the Legislature to create Group Representation Constituencies (GRCs) to ensure minority representation in Parliament. Article 39A(3) of the Constitution exempts any law regarding GRCs from being invalidated on the ground of inconsistency with Article 12.

b. Article 149(1) prevents the Internal Security Act from being invalidated by Articles 9, 11, 12, 13 or 14.
c. Article 9(6) creates exceptions from Article 9 for the Criminal Law (Temporary Provisions) Act and for rehabilitative detention for drug addicts.

d. Article 14(2) also has limits on Article 14, where one’s rights to freedom of speech, assembly and association is subject to public order, morality or security of Singapore.

e. Article 12(3) makes clear that the right to equal protection does not apply to laws that regulate personal law, or to laws and practices that restrict office or employment connected with affairs of any religion.

27. Each case involves a balance between the fundamental liberties and countervailing interests. In the case of Article 156(3) and (4), we have struck the balance in favour of having the strongest protection for the heterosexual definition of marriage adopted by Parliament, and the ability of Parliament and the Government to make laws and policies on the basis of this definition. This reflects the importance of heterosexual marriage in our society.

28. Some have commented that this is an ‘ouster clause’ and could be subject to legal challenges. To be clear, the nature of Article 156 is not an “ouster clause”. Instead, it provides exceptions or limits to the fundamental liberties. As mentioned, such exceptions already exist today.

29. Let me now turn to another aspect that have come up in our engagements. They have been wide ranging, and we have heard from Singaporeans across various walks of life. I first want to take the opportunity to appreciate the different groups of Singaporeans who have written in and whom we have engaged before and after PM’s announcement.

a. These engagements include those with religious leaders, grassroot leaders, union leaders, LGBT groups, social sector professionals, youth groups and members of public. Many have written in to share their views on this matter. Singaporeans have generally understood the need to respect, graciously and mutually accommodate each other’s views and support the Government’s approach.

b. Gay people appreciate the repeal of section 377A but express some apprehension of the implications of the Constitutional amendments. Those in favour of the status quo have constructively shared their views and emphasised the need to safeguard the institution of marriage. Others whom we have engaged such as leaders from the community also support the proposed approach to keep the heterosexual definition of marriage, while repealing s377A.

c. Many are concerned about cancel culture, religious freedom, discrimination faced by those with differing views on this issue and the narrowing public space to speak openly about it. These are important feedback and concerns that Minister Desmond Lee will also address when he speaks.

30. Some expressed the wish to go further than what we are proposing to protect the definition of marriage in our current laws. They want the definition of marriage to be enshrined in the Constitution.

a. We understand that these calls come from a sincere belief in the sanctity of marriage and reflect a genuine worry that the institution of marriage might be changed in the future to include same-sex marriages. I thank those who have spoken up, for taking a stand on what they think is best for Singapore.

b. But the Government has to govern with principle. Our view is that elevating marriage to the same level as fundamental rights in the Constitution would not be appropriate. As explained earlier, the Constitution should be for functions such as sovereignty and our system of governance. The institution of marriage and family is the bedrock of society but to elevate it to the same level as fundamental rights, would fundamentally change the whole complexion and schema of the Constitution. There are many important laws and principles that are not in the Constitution but are in Acts of Parliament. For example

i. National Service is in the Enlistment Act
ii. Corruption is in the Prevention of Corruption Act
iii. Zero-tolerance to drugs is in the Misuse of Drugs Act
iv. Home ownership is in the HDB Act

31. The definition of marriage is and will remain in the Women’s Charter, Interpretation Act and AMLA.

a. Importantly, this Government will not use our current super-majority in Parliament to tie the hands of the future generations. Hence, the Constitutional amendment will not prevent future Governments, elected by the people, from amending the legal definition of marriage by a simple majority in Parliament, should they choose to do so. This is how democracy works.

b. But what we want to be clear is that the definition of marriage and related policies should not be determined by the Courts. In fact, theConstitutional amendment provides greater protection than today, not just for the definition of marriage, but also related policies.

32. PM has said that this Government has no intention of changing the definition of marriage, nor the policies that rely on this definition. DPM Lawrence Wong as 4G leader has also said that the Government will not change them under his watch – if the PAP were to win the next General Election. I reiterate these assurances in this House.

33. Ultimately, whether marriage in Singapore will remain as a union between a man and a woman depends on the consensus in society, shaped by the values we all hold.

a. So long as society strongly supports the current definition of marriage, no Government will change the definition. If society’s support erodes, no amount of legislation or constitutional entrenchment will prevent change.

b. On our part, the Government is doing all it can to promote social norms and values aligned to the current definition of marriage. But it is not something the Government can accomplish on its own. The transmission of social values to the next generation is something Singaporeans practice within their own families and with their loved ones.

Singapore’s Unique Approach in Managing Complexities – Diversity and Secularism

34. Sir, the approach in this Bill reflects Singapore’s unique approach. Singapore is a secular state, but a multi-religious and multi-racial society. We are one of the most diverse societies in the world. There are different ethnic and religious groups, each with their own practices, customs, norms, convictions, and beliefs. This diversity and harmony make Singapore unique and is a key part of our Singaporean identity.

35. It is not easy to hold such a diverse society together. We are a young nation and all of us have taken great care and effort to preserve the harmony and peace that we have. We have been able to live together peacefully because we learn to understand, go beyond our own perspectives, and graciously accommodate one another. This has been the Singapore way, because we recognise what is best for our society.

36. Some may wish to maximise their own positions. But when this happens, it unsettles others and cause resistance which would lead to further pushback and split our society apart. Singapore will not come out well in the end. It is therefore important that certain groups do not push beyond what is acceptable to our society. In most cases, society needs time to adjust to change. Especially on issues that can polarise us, we may have different ideals and perspectives, but we are all Singaporeans and I hope this is an identity we can continue to be proud of. We forge a majority based on what we share in common and what unites us. This is why the Government has consistently emphasised the importance of preserving our common space, fostering good citizens and upholding the principle of equality, regardless of race, language or religion. Only then can we be united as Singaporeans to achieve progress as a Nation.

37. We are fortunate that our religious leaders understand the context of our diverse society and their communities trust the Government to treat all faiths completely impartially. While they are honest and constructive in providing their views on matters of concern in their religious communities, they trust that laws and policies are in the national interest, and not to favour one religion over another.

a. This approach works because the Government on its part is fair and considers all perspectives, including those who are religious as well as those who are not religious. No one can act only for the interests of a few segments of the society, without regard for the rest. Maintaining this approach requires wisdom and courage from everyone.

b. As we see in other societies, it is very easy to yield to sectarian or tribalist views. Even if you do not win, you will be popular with them. But we need to guard against this.

38. We also continue to protect all from scorn and harm. This includes homosexuals who are members of society, our kith and kin.

a. Homosexuals have a place in our society, and space to live their lives in Singapore. In our families, we should not exclude our loved ones who are homosexuals.

b. In our communities, they like other Singaporeans, have access to education and employment, to healthcare and social services, to protection from violence and harassment.

c. Workplace discrimination against homosexuals for reasons unrelated to their ability to do the job is a breach of the principle of fair and merit-based employment outlined in the Tripartite Guidelines on Fair Employment Practices.
d. But on marriage and family, most Singaporeans wish to retain current norms. As I’ve mentioned before, it is the Government’s view as well.

e. As a society, regardless of your views on marriage, family or homosexuality, no one should feel unsafe expressing your views, or fear being cancelled, bullied or discriminated against. It is dangerous for our society if we do not learn to respect others who hold differing views from us. This threatens the common space, and Singapore will not be able to progress as a cohesive society.

39. Sir, in Malay.

40. Dalam berkongsi niat Pemerintah untuk memansuhkan Seksen 377A, kami telah melibatkan masyarakat Melayu/Islam secara meluas sepanjang setahun ini. Ini termasuklah para pemimpin agama, asatizah serta ketua masyarakat dan badan-badan Melayu/Islam.

41. Ramai pada mulanya bimbang, ia akan mengakibatkan perubahan mendadak pada dasar-dasar lain, seperti takrifan perkahwinan, pengambilan anak angkat, peraturan atas kandungan media dan kurikulum pendidikan, serta pendekatan masyarakat secara keseluruhan. Secara jelas masyarakat kita mahu institusi 'keluarga' kekal sebagai tunggak utama kita.

42. Saya telah memberi penjelasan bahawa pemansuhan Seksen 377A akan diiringini Pindaan Perlembagaan akan dilakukan sekaligus supaya Parlimen terus berhak menetapkan undang-undang perkahwinan dan keluarga.