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Constitutional amendment shields against 'creative arguments' challenging definition of marriage: Shanmugam

The Law and Home Affairs Minister delivered his speech the day after Workers' Party MP Sylvia Lim expressed concerns about how the constitutional amendment would affect judicial oversight.

SINGAPORE: A constitutional amendment allowing Parliament to define and protect marriage is needed to shield against "creative arguments" challenging the definition of marriage, Minister for Law and Home Affairs K Shanmugam told Parliament on Tuesday (Nov 29).

Parliament repealed Section 377A of the Penal Code criminalising consensual sex between men and passed a Bill to amend the Constitution on Tuesday.

The new Article 156 of the Constitution 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.

Laws and executive actions also cannot be invalidated by Part 4 just because they are based on a heterosexual definition of marriage.

Part 4 sets out liberties including equal protection, prohibition of banishment and freedom of movement, freedom of speech, assembly and association, and freedom of religion.

Mr Shanmugam was delivering his closing speech on the second day of the debate. On the first day of the debate on Monday, Members of Parliament (MPs) Sylvia Lim (WP-Aljunied), He Ting Ru (WP-Sengkang) and Murali Pillai (PAP-Bukit Batok) had expressed concerns about why it was necessary to exclude the whole of Part 4 in the constitutional amendment.

"We need to exclude the whole of Part 4 because we cannot predict what possible arguments might be made against this definition in the future," said Mr Shanmugam.

"With 377A, 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."

Mr Shanmugam said that some of these alternative arguments have been accepted by courts in other jurisdictions.

"It is possible that additional creative arguments could be made about the heterosexual definition of marriage," he said, questioning for example whether marriage could be a form of association protected by Article 14.

"Members may think it is a little outside of the orthodox interpretation today. But can you rule it out?

"Thus if we want to properly protect the heterosexual definition of marriage from court challenge, we have to exclude the whole of Part 4.

"But it is not a carte blanche," Mr Shanmugam emphasised. "What is protected is quite precise. It is the heterosexual definition of marriage."

Elaborating on this, he said that if Parliament tried to enact apartheid marriage laws or impose "other outlandish definitions of marriage", these would not be protected by Article 156.

"If the Government tries to give benefits to married couples for example, say with the surname Tan, Article 156 will only protect the part of the policy that relates to married couples. The Government will still have to justify why giving benefits to only people with a certain surname is a relevant consideration."

He added that Parliament and the Government will not be able to take measures "absolutely prohibited" under Part 4 of the Constitution, such as slavery.

Giving another example, he said Article 156 does not enable the Government to banish anyone.

"It will be a nice Constitutional question if for example a same-sex couple were to argue that since Singapore does not recognise same-sex marriages, they had no choice but to emigrate and that that is effectively a banishment.

"And that this Government's policy – not recognising same sex marriages – is therefore in breach of Article 13, which precludes banishment.

"So you can see that a careful person will want to think about the different possibilities of arguments and then make sure that the drafting covers the different possibilities," said the minister.

"We do not believe that the Government's policies and laws are in breach of Article 13 or for that matter any other Articles in the Constitution. But members can see that creative arguments can be made.

"So that is why we have had to draft Article 156 in the way it has been worded."

In Ms Lim's speech on Monday, she questioned the need for parts of Article 156 empowering Parliament and any public authority to protect marriage, as the Constitution already vests legislative power in the legislature and executive authority in the Government.

Addressing this, Mr Shanmugam said: "The fact that Parliament can pass laws ... does not automatically mean that all such laws cannot be challenged."

"They can be challenged, for example, if they are contrary to the Constitution. And Article 156 is structured to give effect to protect laws and policies based on the heterosexual definition of marriage."

He added that the Government had been advised by the Attorney-General's Chambers that these provisions could be relevant if there were questions raised as to whether regulating marriage and related steps were "constitutionally valid purposes and considerations for action by the legislature and Government".

The minister also addressed concerns about Article 156 being an "ouster clause", or a clause that prohibits judicial review of executive action by the courts.

"In the case of executive actions, common law judicial review under administrative law principles will generally still apply. The application of those principles must however take Article 156 into account," he said.

"For example, with Article 156, acting to promote marriage would not be an unlawful purpose or an irrelevant consideration. But otherwise, administrative law principles can and will still apply."

He said that Article 156 took two specific issues out of the courts' province: The heterosexual definition of marriage, and the ability of Parliament and the Government to make laws and policies based on this definition.

This was because the Government believed that Parliament and the elected Government should deal with and try to strike the right balance on such "complex and delicate social issues".

Referring to Ms Lim's and Ms He's positions on the constitutional amendment, he said this meant that "they accept that the courts can strike down the heterosexual definition of marriage, or to curtail the ability of Parliament and Government to make laws and policies based on this definition, and for society to live with the consequences after that".

Mr Shanmugam added: "This, then, is the choice before the House today: Whether we decide to have the certainty that Parliament will decide on issues of marriage, or whether we want 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."

Ms Lim asked Mr Shanmugam to clarify if there had previously been constitutional challenges to the heterosexual definition of marriage, and to confirm that he accepted that the courts have a constitutional role to ensure that Parliament and the Government's actions conform to the constitution.

"Is the Government not confident that it can convince the court that marriage based on heterosexual definition is based on reasonable criteria, it serves the purpose of promoting procreation within a family unit?" asked Ms Lim.

Ms Lim also clarified her position - that she was not opposing the Constitutional Amendment Bill but was abstaining.

"The reason I'm abstaining is that I have a concern about the role of the courts as having judicial oversight over the legality of Government actions and Parliament. I am concerned that that should be protected so I for one value it, and that is why I am abstaining," said Ms Lim.

In response, Mr Shanmugam said there was a need to take reference from what happened elsewhere, such as in India.

"The courts first said that their version, their 377A was not unconstitutional. And then within a few years, they said, well, it is unconstitutional. And now, earlier this year, they have said the definition of marriage should be broader than pure heterosexual marriage."

"So if one were to ask: Is the risk to the heterosexual definition of marriage less than the risk to section 377A? The answer is yes. But that does not lead to, well, we don't have to do anything about it. If there is a risk to something as fundamental as marriage, you act or at least this Government acts."

Mr Shanmugam added that while he accepted that the courts have a constitutional role, the courts should not look at the definition of marriage.

"What should count as marriage should be decided here. The courts can only make binary decisions. We should discuss it, we should decide it, and we should take into account what society is ready for and what society needs and what strengthens society.

"And even if we take a view which is different from the majority view, then it's our duty to go and convince society as to why we are taking that view. We can do all of those things. The courts cannot do those things."

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