Singapore’s most recent amendment to its Constitution to “protect” the heterosexual definition of marriage and prevent this definition’s constitutionality from being challenged in court has partly been justified by the ruling People’s Action Party (PAP) government citing the increasingly liberal stance the Supreme Court of India has taken on issues of marriage and familial structure since it decriminalised homosexuality in 2018.
Law and Home Affairs Minister K. Shanmugam had, before introducing the Amendment Bill, cited a ruling of the Indian Supreme Court as a warning to say that unless the government takes this move, Singapore may see similar legal challenges, thereby justifying the announcement made by Prime Minister Lee Hsien Loong a week before.
The ruling cited by Mr. Shanmugam was in a case where a Bench of Justices D.Y. Chandrachud and A.S. Bopanna had observed that family units may take the form of queer relationships and that such “atypical” units were “equally deserving not only of protection under law but also of the benefits available under social welfare legislation”.
In the September statement citing this ruling, Mr. Shanmugam had said, “This is happening just a few years after the Indian Supreme Court also struck out their s377 (which is similar to our s377A), in 2018. Our courts have traditionally eschewed such an approach, and have said that these matters should be dealt with in Parliament. The Constitutional amendments will seek to ensure that.”
In Parliament too, while responding to opposition MPs, Mr. Shanmugam added, “With s377A, we have seen how the arguments in our courts progressed from Equal Protection under Article 12 to asserting that sexual conduct is a form of Liberty protected by Article 9, or a form of Expression protected by Article 14. Some of these alternative arguments have been accepted by courts in other countries. And it is possible that additional creative arguments could be made about the heterosexual definition of marriage.”
Days before these remarks, the Supreme Court of India issued notice on a plea for legalisation of same-sex marriage, which argued that not doing so would violate their right to equality.
The Amendment was passed by the Singapore Parliament this week, as a “quid pro quo” to protect the institution of marriage while at the same time decriminalising homosexual activity between consenting men. And while the decriminalisation of gay sex has brought relief to activists in the country, the Constitutional Amendment has once again raised concerns among the opposition and activists over Parliament restricting courts’ powers to examine the constitutionality of certain issues.
The Amendment gives the Legislature the right to define marriage and the Legislature and Executive the right to “protect, safeguard, support, foster and promote the institution of marriage”. In the subsequent clauses, however, the Amendment lays out that any law (irrespective of when it was made) that defines marriage as a union between a man and a woman cannot be “invalidated” by Part 4 of the Constitution, which lists Fundamental Liberties of citizens, thereby taking away courts’ power to adjudicate whether this definition is a violation of fundamental liberties.
During the debate over the amendment, MPs from the Opposition Workers’ Party (WP) noted their opposition to these clauses that exclude the definition of marriage from judicial scrutiny, expressing concerns over whether this might open the doors for the government to “come up with other areas of life, where the courts are to be excluded from reviewing laws and policies for Constitutionality”, as put forth in Parliament by WP chairperson Sylvia Lim. Two more MPs from Ms. Lim’s party also voiced similar concerns, questioning whether it was necessary to include all Articles (9-16) of Part 4 in the language.
However, in response, Mr. Shanmugam said that this was the only way to “properly protect the heterosexual definition of marriage from court challenge”.
Constitutional law experts in India told The Hindu that in Singapore, Parliament’s supremacy has been a feature overriding the scope of courts’ jurisdiction at times, with constitutional law scholar Gautam Bhatia saying that in Singapore, “rights have been decided by Parliament more than courts”. Other experts argue that a lack of a “basic structure doctrine” in Singapore may allow such a constitutional amendment to go through.
On curtailing the courts’ power to examine the constitutionality of the heterosexual definition of marriage, Mr. Shanmugam said in Parliament that this was a question of choosing whether to have the “certainty” of Parliament deciding on these issues or whether “to leave this to the courts and live with the potential threat of unconstitutionality, and have that change imposed on our society — as has happened in other countries”.
