At the outset, I wish to state that I am in support of the Penal Code Amendment Bill. This is due to the likely unconstitutionality of Section 377A for violating Article 12, especially in the light of recent legal developments.
I wish now to focus on the Constitution Amendment Bill now before the House.
The Bill proposes to add a new Article 156 to the Constitution. I believe it is important to study the various parts of Article 156 in detail.
The first half of Article 156, namely sub-articles (1) and (2), state that laws and policies concerning the promotion of the institution of marriage lie within the province of Parliament and the Government. The second half of Article 156, namely sub-articles (3) and (4), declare that laws and policies based on a definition of marriage as between a man and a woman cannot be invalidated on the grounds that they violate Part 4 of the Constitution on Fundamental Liberties. It is further stated in these two sub-articles that the apparent prohibition of a Constitutional challenge will apply to laws and policies that are in force whether before, on or after the commencement of this Bill i.e. for all past, current and future laws and policies.
From what I understand, the amendments to the Constitution are an attempt at a quid pro quo for the repeal of Section 377A of the Penal Code. The repeal of Section 377A is concerning to many Singaporeans who are not supportive of the repeal, and who fear that the removal of the offence would mainstream gay lifestyles in further spheres of life.
I see Article 156 as the government’s way of signalling that the definition of marriage in Singapore would not be changed in the near future. However, as pointed out by the Law Minister in August, this does not amount to an entrenchment of the definition of marriage as between a man and woman. He made clear that it was open to Parliament to change the definition of marriage by amending the law by a simple majority in Parliament.
It is therefore appropriate to consider what the actual effect of Article 156 is. I intend to look at each of the four sub-articles in turn.
It is stated that Parliament may pass laws which define, regulate, safeguard, support, foster and promote the institution of marriage. On the one hand, that sounds like a clear statement of what Parliament can do. However, with due respect, I am not sure what this sub-article actually achieves, apart from stating the obvious.
It is indisputable that under Article 38 of the Constitution, legislative power has already been vested in the Legislature consisting of the President and Parliament. Parliament can pass laws on any subject. In what way then is Article 156(1) meaningful?
Similarly, Article 156(2) states that the Government and any public authority may exercise their executive authority to protect, safeguard, support, foster and promote the institution of marriage.
Again, is there a need to state that the Government and any public authority may exercise their executive authority? It already is the position that under Article 23 of the Constitution, executive authority is vested in the President and exercisable by Cabinet Ministers and other bodies as authorised by law.
It is arguable then that Article 156(1) and (2) do not add anything new to the current position.
Articles 156(3) and (4)
I next move to the second half of the proposed Article 156. The latter two sub-articles seek to prohibit challenges under Part 4 of the Constitution to laws and policies based on the current definition of marriage as between a man and a woman. I wish to record my concern about the implications of sub-articles (3) and (4) on judicial oversight of the actions of Parliament and the Government.
It bears stating here that Part 4 is the part of the Constitution entitled “Fundamental Liberties”. It is Part 4 that grants individuals critical protections against abuse of state power, such as ensuring freedom from arbitrary arrest and freedom of religion, and the right to equal protection under the law. These are enshrined in the Constitution for a reason. No doubt, these Fundamental Liberties may not all be absolute, and some of them have been qualified in the Constitution itself. But if one looks at the existing qualifications, they tend to be scoped very tightly and justified on the grounds of national emergencies, security, public order and public health. Member Mr Murali touched in this earlier.
To now include the definition of marriage as something that the Courts cannot assess for Constitutionality does not appear to me to be justified. To clarify, I am not advocating for gay marriages here. My concern is purely about whether it is justified to exclude judicial scrutiny on this topic. From a governance standpoint, I find this position very difficult to accept.
Under Article 93 of the Constitution, judicial power has been vested in our Courts. Article 4 provides that the Constitution is the supreme law of the land, a point recognised by Minister Masagos earlier. Article 4 provides that laws passed by Parliament that are inconsistent with the Constitution shall, to the extent of the inconsistency, be void. The Constitution is the fundamental legal safeguard of citizens, to protect them against illegal laws and policies that violate the Constitution. And it is the job of the Courts to assess whether any law is Constitutional or not. I heard Minister Masagos earlier. It is not the same thing to say that the Courts are intervening in a political sphere when they are doing their Constitutional duty.
This Bill today seeks to exclude the Courts from reviewing the constitutionality of laws and policies concerning marriage. Quite apart from the decision being taken today, I am concerned about what this carve out means for the future. Will the Government, present or future, come up with other areas of life, where the Courts are to be excluded from reviewing laws and policies for Constitutionality? Will Parliament in future be looking at Article 157, 158 or 159?
It goes without saying that Parliament and the Government should, instead, be ever mindful of what the Constitution requires, and act within those parameters. To that end, I am very concerned about the implications of this new carve-out and what Parliament is asked to do today.
To summarise, I understand the purpose of Article 156 as a quid pro quo for the repeal of Section 377A. However, as far as sub-articles (1) and (2) are concerned, it does not seem to me that these provisions add anything to the current position. As for Articles 156(3) and (4), I am concerned about the Courts being further curtailed in their Constitutional duty to check Parliament and the Government. I am also concerned about whether the carve-out of judicial oversight on the institution of marriage will set a precedent for future carve-outs, even if this is not the intention today. This is potentially detrimental to Singaporeans.
That said, I appreciate the difficulties the Government has in navigating this issue of Section 377A. It is not easy to arrive at a solution that addresses the concerns of society which is divided on the matter. To that end, I understand the signal the government wishes to send through the proposed Article 156. So I will not oppose the Bill.
Nevertheless, my concerns about safeguarding the Courts in doing their Constitutional duty remain. For the reasons I have stated, I have decided to cast a vote of abstention on the Constitution Amendment Bill.
Delivered in Parliament on 28 November 2022