Bills tabled in Parliament to repeal Section 377A, amend Constitution to protect definition of marriage

Two separate Bills to repeal Section 377A of the Penal Code and amend the Constitution to protect the current definition of marriage from being challenged in the courts were tabled in Parliament. 

The proposed legislative changes, which comes after Prime Minister Lee Hsien Loong’s announcement in his National Day Rally speech in August that the law which criminalises sex between men would be repealed, will be debated at a later date. 

Apart from the proposed removal of Section 377A in the Penal Code, a new Article 156 (Institution of Marriage) will be added into the constitution. 

Article 156(1) states that the Parliament will have the power to make laws, define, regulate, protect, safeguard, support, foster and promote the institution of marriage. Article 156(2) will allow the Government and public authorities to exercise their executive authority to achieve those objectives. 

Article 156(3)(a) protects laws defining marriage as a union between a man and a woman from being invalidated by Part 4 of the Constitution, which covers the fundamental liberties of an individual. 

Article 156(3)(b) and Article 156(4) protect laws and policies based on such a definition from being challenged in the courts on such Constitutional grounds. 

The bill does not “codify or enshrine” the definition of marriage in the Constitution, said the Ministry of Home Affairs (MHA) and Ministry of Social and Family Development (MSF) in the joint-press release on Thursday (Oct 20). 

On the repeal of 377A, MHA and MSF both said that attitudes towards homosexuality have shifted appreciably and that based on the recent Court of Appeal decision on Section 377A, there is 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.

“It would be unwise and irresponsible for Parliament to ignore this risk and do nothing,” both ministries said, adding that the Government had consulted various stakeholders extensively before coming to this decision. 

“While Singapore remains a conservative society, gay persons are now better accepted in Singapore, especially among the young. Most people accept that a person’s sexual orientation and behaviour is a private matter, and that sex between men should not be a criminal offence. 

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