Repealing Section 377A and Constitution amendment to protect definition of marriage: What you need to know

Two months after Prime Minister Lee Hsien Loong announced that the Government will seek to repeal Section 377A of the Penal Code during his National Day Rally in August, the wheels are set in motion to make it official.

On Thursday (Oct 20), Minister for Home Affairs and Law K. Shanmugam introduced the the Penal Code (Amendment) Bill to decriminalise sex between men for its first reading in Parliament.

Meanwhile, Minister for Social and Family Development Masagos Zulkifli introduced a new Article 156 (Institution of Marriage) clause to the Constitution on the same day.

What do these two bills mean, and what happens next? Here's what else you need to know.

What are the two bills introduced in Parliament?

The Penal Code (Amendment) Bill will repeal Section 377A of the Penal Code 1871, which criminalises sex between men.

As for the Constitution of the Republic of Singapore (Amendment No. 3) Bill, it will amend the Constitution to protect the current definition of marriage, as well as laws and policies based on this definition, from Constitutional challenge.

The amendment will consist of the introduction of a new Article 156 (Institution of marriage) in Part 13 of the Constitution.

Part one of the new article states that Legislature, that is Parliament, may, by law, define, regulate, protect, safeguard, support, foster and promote the institution of marriage.

Article 156 (2), on the other hand, provides for the Government and public authorities to protect and promote the institution of marriage in the exercise of their functions.

Article 156(3) and 156(4) will protect laws defining heterosexual marriage as a union between a man and a woman, and laws and policies based on such a definition, from being invalidated under Part 4 of the Constitution (Fundamental Liberties).

However, the bill does not codify or enshrine the definition of marriage (i.e. as between a man and a woman) in the Constitution.

Why now?

In his National Day Rally speech on Aug 21, PM Lee said that repealing Section 377A is "the right thing" to do, and is something that most Singaporeans will now accept.

The attitudes towards homosexuality have also shifted appreciably, PM Lee acknowledged. "This will bring the law into line with current social mores, and I hope, provide some relief to gay Singaporeans."

The Government had consulted stakeholders extensively before making the decision to repeal Section 377A, the Ministry of Home Affairs (MHA) and the Ministry of Social and Family Development (MSF) said in a joint statement on Thursday.

"From the national point of view, private sexual behaviour between consenting adults does not raise any law-and-order issues," they said.

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There is also 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, MHA and MSF said, adding that it would be unwise and irresponsible for Parliament to ignore this risk and do nothing.

Similarly, since marriage is defined in our laws as a union between a man and a woman, it is to prevent the legal definition of marriage, and the laws and policies that are based on that legal definition, from being challenged in the courts on Constitutional grounds.

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, according to MHA and MSF.

"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."

What other ministries have said about Section 377A

The education policies and curriculum will remain anchored on Singapore's prevailing family values and social norms, the Ministry of Education (MOE) said in a statement in August.

These include the family as the cornerstone of our social fabric, and marriage between a man and a woman.

As for how sexuality education is taught in educational institutions, they will remain secular, based on traditional values, and sensitive to the multiracial and multi-religious make-up of our society, according to MOE.

The ministry said: "All students will learn and practice values such as mutual understanding, respect, and empathy for everyone.

"Bullying and cancel culture must not take root in our educational institutions and society."

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On the same tone of fighting against cancel culture, Minister for law K. Shanmugam has shared on Aug 22 that his ministry is looking at measures to ensure that no one will be cancelled for stating their views.

"We should not allow a culture where people of religion are ostracised, attacked, for espousing their views or their disagreements with LGBT (lesbian, gay, bisexual and transgender) viewpoints. And vice versa," he said.

The Ministry of Communications and Information (MCI) has said in an August statement that government policies on media content will not change even with the repeal of Section 377A.

LGBT media content will continue to warrant higher age ratings, the ministry added.

What happens next?

The two bills will be debated together when Parliament sits on Nov 28, and then voted on separately.

Any amendment to the Constitution has to be supported by at least two-thirds of the Members of Parliament (MP), excluding Nominated MPs.

Deputy Prime Minister Lawrence Wong said in August that the People's Action Party will not be lifting the whip when Parliament votes to repeal S377A.

This means MPs will have to vote according to the party's position.

ALSO READ: 'Unconstitutional', 'unenforceable', 'equal protection': How did Section 377A get to this point?

chingshijie@asiaone.com

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