The Parliament of the Republic of Singapore recently decriminalised same-gender activity and, at the same time, adopted an amendment to the Constitution, which confers legislative power on the Parliament to define “marriage.” The electorate supports these changes because they purport to reconcile opposing and contentious views on same-gender attraction and same-sex marriage.
However, do these changes really represent a splendid compromise?
While members of Singapore’s political class recognise the global trend to decriminalise same-gender activity, they are nevertheless also keen to maintain and nurture the view that marriage is a union between a man and a woman, as it is defined in the Interpretation Act and the Women’s Charter.
Specifically, the compromise embraced by Singapore’s politicians involves the revocation by Parliament of section 377A of the Penal Code, which criminalises same-gender acts.
In the absence of the constitutional amendment, it could have been argued that Singapore, in limiting “marriage” to the union of a man and a woman, discriminates unconstitutionally against those who want to marry a partner of the same sex.
It is noteworthy that the Parliament did not insert a section in the Constitution to confirm that “marriage” is strictly the union of a man and woman.
Conservative groups in Singapore advocated for the insertion of such a provision, but they were unsuccessful.
Constitutional entrenchment would have helped their cause because the Constitution can only be changed by two-thirds of the members of the Parliament. In contrast, the amendment adopted by the Parliament ensures that it has legislative power to change the definition of “marriage” by a simple majority if it so wishes.
In giving this power to the Parliament, it would become more difficult, even improbable, for the judiciary to evaluate the description of “marriage” in the light of Section 12(1) of the Constitution, which provides for the equal protection of the law.
Did Singapore Succeed in Reconciling the Different Views?
The constitutional amendment certainly confers power on the Parliament to adopt laws on the issue of same-sex marriage. Surely, such a contentious issue should not be decided by unelected judges but properly belongs to the legislature, which represents the electorate.This was also recently recognised by the American Supreme Court when it overturned the divisive abortion judgment of Roe v Wade, returning issues relating to abortion to the state legislatures.
One benefit of doing so is that Singapore need not change its existing legislation, something it would need to do if the judiciary were to declare traditional marriage incompatible with the Constitution.
Now, it might be possible to maintain existing legislation without having to amend the numerous laws which are based on the traditional concept of “marriage.”
However, such an argument is disingenuous because, in other countries, the prospect of having to change existing legislation did not impede the adoption of same-sex marriage.
Nevertheless, in deferring this issue to the Parliament, it has provided advocates of same-sex marriage with a platform on which to promote marriage reform.
The changes also mean that marriage equality will always be on the political agenda.
By not entrenching the definition of “marriage” as the union of a man and a woman in the Constitution, it leaves the definition of marriage open to the vagaries of an increasingly secular world and makes it easier to embrace marriage equality in the future.
This is an ominous statement because it assumes that traditional marriage is based on an “outdated” belief.
To conclude, parliament can now change the definition of marriage by adopting appropriate legislation by a simple majority. Surely, such a compromise is a “flawed” compromise?
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