On Section 377A’s Repeal, the Current Definition of Marriage in the Women’s Charter & Constitutional Amendments

Chooi Jing Yen shares his thoughts  on the repeal of Section 377A, the impact, if any, of such repeal on the “sanctity of marriage”, the current legal definition of marriage in the Women’s Charter,  and proposed constitutional amendments with the South China Morning Post

1. Recap of National Day Rally 2022: 377A’s Repeal & Proposed Constitutional Amendments

During the National Day Rally 2022 on 21 August 2022, Prime Minister Lee Hsien Loong informed Singapore of the Government’s intended move to repeal Section 377A of the Penal Code 1871. The provision, which criminalises consensual sexual activity between gay men, has been the subject of serveral constitutional challenges in the last decade, including one mounted by Johnson Ong Ming, who was represented by Eugene Thuraisingam LLP.

In February 2022, a 5-member Court of Appeal dismissed Ong’s constitutional challenge. Although the constitutional challenges were eventually dismissed, Singapore’s Apex Court held that Section 377A was “unenforceable in its entirety” (at [49]).

In explaining the Government’s rationale for repeal, PM Lee made reference to how, following the constitutional challenges and careful scrutiny of the Court of Appeal’s decision, the Minister for Law, Mr K Shanmugam, and the Attorney-General, Mr Lucien Wong, advised the Government that there is a chance that a future Court may strike down Section 337A of the Penal code “on the grounds that it breaches the Equal Protection provision in the Constitution”.

In addition to repealing Section 377A, the Government also announced its intention to amend the Constitution to protect Parliament’s right to define marriage. The exact form that these draft amendments, which appear to be unprecedented, would take remains to be seen.

Speaking to the press a day after the National Day Rally, the Minister for Law confirmed that the Government does not intend to amend the constitution to include the definition of marriage, which is currently set out in, inter alia, the Women’s Charter,  in the Constitution.

2. Legal perspectives on the Constitutional Amendments

In an interview with the South China Morning Post, Chooi Jing Yen, a partner at Eugene Thuraisingam LLP, opined that it was “highly unlikely” that the Singapore Government would amend the Constitution to enshrine the definition of marriage.

Chooi observed that exisisting laws, like Section 12 of the Women’s Charter, which is reproduced below for ease of reference, already prohibit same-sex marriage.

Chooi argued that enshrining the definition of marriage in the Constitution would “tie the hands of future governments” as a Constitution is harder to amend than ordinary legislation.

In Chooi’s opinion, it is “quite rare” that a law is elevated from an ordinary piece of legislation into the Constitution for reasons that may be deemed symbolic. He posits that there is good reason why laws which take their cue from social mores of the day, like the definition of marriage, are not typically constitutionalised. The Constitution, Chooi explains, is meant to be immutable and not easily-amendable. Therefore, laws which may change along with norms should not be enshrined in the Constitution as, when social norms do change, the Constitution would have to be amended again.

Legislation, like the Women’s Charter and the Penal Code, require only a simple majority in Parliament to amend. However, the Constitution requires a supermajority in Parliament of two-thirds to amend.

3. The effects of Repealing 377A on the Sanctity of Marriage

Chooi is of the view that repealing Section 377A would have no effect on the Women’s Charter.

Chooi said,

The mere repeal of Section 377A is still several steps away from undermining the sanctity of marriage in our society. The black letter of that law has nothing to do with marriage. The law remains, at present, that same-sex marriage is not recognised in Singapore

Further, Chooi noted that, in the case of Section 377A, the Government had taken the position that the provision would not be actively enforced. This representation by the Government was one of the main driving forces behind the Constitutional challenges against Section 377A.

However, this is not the case with provisions of the Women’s Charter. The current legal definition contained in the Women’s Charter was referred to multiple times during and since the National Day Rally by the Government.

This is a clear signal that the Government intends for the provisions defining marriage in the Women’s Charter to be authoritative.