How could marriage be enshrined in the Constitution?
Assistant Professor Kenny Chng of SMU’s Yong Pung How Law School has highlighted two options for enshrining marriage in the Constitution.
The first is to “directly incorporate”, that is, directly express a definition of marriage in the Constitution and state that only such marriages will be recognized in Singapore.
In general, constitutional amendments require the support of two-thirds of the total number of deputies, excluding appointed deputies. Currently, this means that at least 63 votes from the 94 elected and non-constituency MPs would be needed. The ruling party has 83 deputies.
The second way is to include a constitutional provision that references the relevant provisions of the Women’s Charter or Interpretation Act and protects them from constitutional challenge. Such “protective provisions” already exist in the Singapore Constitution, Assistant Professor Chng pointed out.
An example is Section 149(1) of the Constitution on anti-subversion legislation, which protects laws intended to prevent certain actions, such as promoting ill will and hostility between different races, from constitutional challenge .
Section 39A(3) of the Constitution, on Group Representation Constituencies (GRC), also protects RCMP legislation from constitutional challenges.
Such “protective provisions” in the Constitution require a two-thirds majority in Parliament to pass. A protected provision of the Women’s Charter can be changed by a simple majority vote.
However, another legal expert said it “didn’t make sense” to enshrine a definition of marriage in the Constitution, and there was “no need to do so”.
“If the idea is to make it more difficult to change the definition of marriage, all that needs to be done is to make certain provisions of the law…changeable only by a two-thirds majority in Parliament,” said the Assistant Professor Kevin Tan of the Faculty of Law of the National University of Singapore.
He referred to Article 12 of the Women’s Charter as an example and added, “Enshrinement can be done within the respective legislation without the need to amend the Constitution.”
However, there is no precedent for statutory provisions having entrenched clauses requiring a two-thirds majority to be amended.
If marriage is enshrined in the Constitution, is it here to stay? How could it be challenged by those who oppose it?
Assistant Professor Chng said “direct incorporation” and “protective provisions” are able to shield a definition of marriage from constitutional challenge through judicial review.
Judicial review is the process by which the High Court exercises its supervisory jurisdiction over entities that perform public functions and duties.
Depending on which of the two methods is used, the difficulty of making subsequent changes to a definition of marriage through the political process will be different, as they require different levels of support in Parliament.
Regarding constitutional challenges, Assistant Professor Ong highlighted a legal theory that the Constitution cannot be amended in a way that alters some “basic characteristics” or its “basic structure”.
“Our courts have not had the opportunity to rule on the application of this theory in Singapore,” he said, although various scholars have argued that this may be the case.
“Our Court of Appeal observed that, assuming this theory applied to Singapore, only ‘something fundamental and essential to the political system’ would form part of the ‘basic structure’.”
When asked this question, Professor Adj Tan said: “The debate has focused too much on the meaning of ‘marriage’ and not on the consequences of being married.”
He said that would require considering how those who are married are treated differently than those who are not.
Some examples he cited are eligibility for new social housing, being considered next of kin for situations such as medical decision-making, being considered a spouse in the sense of the law on intestacy and adoption.
“The differential treatment between categories of individuals” engages Article 12 of the Constitution governing equality and equal protection of the law, Professor Adj Tan said.
“The point here is that when the law treats one class differently than another (regardless of the definition of marriage), there is the potential for constitutional challenge.”
There have been no constitutional challenges in these separate areas since the “great challenge” so far has been against Section 377A, he said.