At the 2022 National Day Rally, Singapore Prime Minister Lee Hsien Loong announced his government’s intention to repeal Section 377A of the Penal Code. Doing so would mark the end of a decades-long campaign by activists and lawyers to abolish the colonial-era law which criminalizes “acts of gross indecency between men”. At the same time, Lee also announced that his government would “protect the definition of marriage [as being between one man and one woman] from being challenged constitutionally in the courts” by amending the Constitution of the Republic of Singapore (the “Constitution”).
While there was some initial confusion as to what this constitutional amendment would look like, Minister of Law and Home Affairs K. Shanmugam clarified the next day that the definition of marriage is “not going to be in the Constitution”. This means that the government will not be going down the route of California’s Proposition 8, which amended the state’s constitution to include a clause that stated that “only marriage between a man and a woman is valid or recognized in California.”[1] Taking as read the fact that a strictly heterosexual definition of marriage is discriminatory against queer people, this article turns to two other questions: first, what exactly will this constitutional amendment look like and second, what does it mean for the queer movement in Singapore?
First, on the form that the constitutional amendment will take, one possibility is an amendment to Article 12 of the Constitution itself, which guarantees to all persons the right to equality. According to Lee, the constitutional amendment is necessary because the court may one day rule that the heterosexual definition of marriage violates the rights of non-heterosexual persons. To prevent the court from doing so, Parliament may restrict the constitutional right to equality as it relates to the institution of marriage. It can do so, for example, by inserting a new sub-clause Article 12(3)(c) which provides that Article 12 does not invalidate or prohibit any provision regarding the definition of marriage.
There currently exist two other restrictions to the constitutional right to equality under Article 12(3), which states that Article 12 does not invalidate or prohibit (a) any provision regulating personal law or (b) any provision or practice restricting office or employment connected with the affairs of any religion, or of an institution managed by a group professing any religion, to persons professing that religion. According to the High Court, Article 12(3) applies to specific provisions which “carve out special rights or obligations for certain groups of people”.[2] This includes the law on Muslim marriages under the Administration of Muslim Law Act and the relevant sections of the Women’s Charter that state that its provisions on marriage and divorce are inapplicable to Muslims. It has been suggested that Article 12(3) “secures the valued objective of protecting religious freedom through preserving the autonomy and distinct traits of religious groups, manifested in their desire to lead lives based on religious obligations”.[3]
The constitutional amendment could therefore carve out a “special” obligation on non-heterosexual persons by denying them the right to marry persons of the same gender. This is not unprecedented; as Professor Thio Li-Ann has observed, Article 12(3) currently protects provisions in the Administration of Muslim Law from constitutional scrutiny even though they may “contain norms which discriminate against Muslim women”.[4] In any case, as a matter of principle, no right is absolute, save for the right to profess one’s faith (as enshrined in Article 15(1) of the Constitution).[5]
For some, what is troubling also is the fact that Parliament can amend the Constitution to deny a group of people a right that they were otherwise entitled to under the Constitution itself. In other words , is it legally permissible for Parliament to amend the Constitution in a way that violates the Constitution itself? This question was canvassed by the High Court several decades ago, where it held that Parliament’s power to amend the Constitution is “wide and unlimited” such that it can amend any provision of this Constitution.[6] This issue has however not yet been addressed by the highest Court of Appeal, so activists and lawyers planning to challenge the forthcoming amendment may potentially invite the Court of Appeal to do so.
Second, and perhaps more importantly, there is the question as to whether this new political compromise of repealing Section 377A while amending the Constitution to “protect” the heterosexual definition of marriage is a step forward or backward for queer people in Singapore. This is a question that can be answered in three ways.
First, from a chronological perspective, it is widely acknowledged that there is a “necessary process” towards same-sex marriage which begins with the decriminalization of homosexual conduct.[7] The journey from decriminalization to marriage equality in the 30 countries that have legalized same-sex marriage has taken years, if not decades. While the forthcoming constitutional amendment may make marriage equality seem like an impossibility, recent polling on public acceptance of same-sex marriage suggests that it is more likely a question of when rather than if marriage equality will arrive on Singapore’s shores.
Second, from an institutional perspective, while the constitutional amendment would cut off the courts as an avenue to achieve marriage equality, there nonetheless remains a legislative possibility for this to be achieved. The constitutional amendment will not “hard-code” heterosexual marriage into the Constitution but simply prevent the court from recognizing same-sex marriage. This means that a future government may adopt a more inclusive definition of marriage in future, especially if the trend of increasing public acceptance of queer people and relationships persists.
Finally, as a matter of priorities, it is questionable whether the queer movement should even be investing its time and energy in campaigning for same-sex marriage. As Professor Lisa Duggan has argued, while it is obviously discriminatory to exclude same-sex couples from marriage, de-centering marriage and multiplying options may be a better path to meaningful equality.[8] In Duggan’s words, “the right to marry is a very narrow and utterly inadequate solution for the problems that most queer people face. Access to the state-regulated institution of marriage does not provide full equality, universal health care, or expansively reimagined forms of kinship that reflect our actual lives.” Adopting this broader imagination of queer justice suggests that the constitutional amendment may perhaps not be as significant or calamitous to the future of queer life in Singapore. Instead, it may even unintentionally spur activists to build solidarity with other marginalized groups to advocate for more universal policy reforms that will benefit not just same-sex couples but singles, single parents, migrant families and more.
After over a decade since activists first filed a parliamentary petition to repeal Section 377A in 2007, its impending abolition marks a new chapter in the pursuit of gay rights and queer liberation in a country that has remained “a few respectable steps behind the world”.[9] The law has galvanized a social movement on a scale that has never been seen in Singapore’s history, with tens of thousands gathering at Hong Lim Park every year at the Pink Dot rally. Whether the repeal is a boon or bane remains uncertain and its answer ultimately lies in the hands of queer activists themselves to chart a more equal and inclusive Singapore.
Image Source: Pink Dot SG
[1] This constitutional amendment was eventually struck down by the Supreme Court of the United States in Hollingsworth v. Perry 570 U. S. 693, 133 S. Ct. 2652.
[2] Shafeeg bin Salim Talib and Another (administrators of the estate of Obeidillah bin Salim bin Talib, deceased) v Fatimah bte Abud bin Talib and Others [2009] 3 SLR(R) 439; [2009] SGHC 100 at [14].
[3] Thio Li-Ann, A Treatise on Singapore Constitutional Law, para 13.015.
[4] ibid.
[5] “While the clarion call for unfettered individual rights is almost irresistibly seductive, it cannot, however, be gainsaid that individual rights do not exist in a vacuum. Permitting unfettered individual rights in a process that is value-neutral is not the rule of law. Indeed, that form of governance could be described as the antithesis of the rule of law – a society premised on individualism and self-interest.” Chee Siok Chin and Others v Minister for Home Affairs and Another [2006] 1 SLR(R) 582; [2005] SGHC 216; “The right to profess a religious belief, or an irreligious belief like secular humanism, is the only absolute and inviolate right in the Constitution.” Thio Li-Ann, A Treatise on Singapore Constitutional Law, para 15.023.
[6] Teo Soh Lung v Minister for Home Affairs and others [1989] 1 SLR(R) 461; [1989] SGHC 108 at [33] to [35].
[7] Wai Kum Leong, ‘Towards the Elimination of Prescriptive Sexual Regulation in Family Law in Singapore’, Hong Kong Law Journal 46, no. 1 (2016): 131–50.
[8] Lisa Duggan, ‘Beyond Marriage: Democracy, Equality, and Kinship for a New Century – Page 2’, The Scholar & Feminist Online Fall 2011/Spring 2012, no. 10.1-10.2 (6 April 2012), https://sfonline.barnard.edu/beyond-marriage-democracy-equality-and-kinship-for-a-new-century/2/.
[9] Simon Oberndof, ‘A Few Respectable Steps behind the World? Gay and Lesbian Rights in Contemporary Singapore’, in Human Rights, Sexual Orientation and Gender Identity in the Commonwealth: Struggles for Decriminalisation and Change, ed. Corinne Lennox and Matthew Waites (London: Human Rights Consortium, Institute of Commonwealth Studies, School of Advanced Study, University of London, 2013), 231-59.