How could marriage be enshrined in the constitution?
Assistant Professor Kenny Chng of SMU’s Yong Pung How School of Law highlighted two options for enshrining marriage in the constitution.
The first way is by ‘direct incorporation’, that is, by expressing a definition of marriage directly in the constitution and declaring that only such marriages will be recognized in Singapore.
In general, constitutional amendments require the support of two-thirds of the total number of MPs (MPs), excluding nominated MPs. Currently, this means that at least 63 votes are needed from the 94 elected and non-constituency MPs. The ruling party has 83 MPs.
The second way is by including a constitutional provision that refers to the relevant provisions of the Women’s Charter or the Interpretation Act and protects them from constitutional challenge. Such “foreclosure provisions” already exist in Singapore’s constitution, Asst Prof Chng emphasized.
An example is Article 149(1) of the Constitution on Anti-Subversion Legislation, which shields laws intended to protect certain actions, such as promoting racial ill-will and hostility, from constitutional challenge.
Article 39A(3) of the Constitution, regarding group representation constituencies (GRCs), also protects GRC-related legislation from constitutional challenge.
Such “foreclosure provisions” in the Constitution require a two-thirds majority in Parliament to be passed. A restricted provision in the Women’s Charter can be amended by a simple majority vote.
However, another lawyer said it “makes no sense” to include a definition of marriage in the Constitution, and that it “isn’t necessary”.
“If the intention is to make it more difficult to change the definition of marriage, then all it takes is to make certain provisions of the law… the National University of Singapore’s Faculty of Law.
He referred to Section 12 of the Women’s Charter as an example, adding, “Embedding can be done within respective legislation without the need to tamper with the Constitution.”
However, there is no precedent that legal provisions contain anchored clauses that require a two-thirds majority to be amended.
If marriage is enshrined in the constitution, is it here to stay? How can it be challenged by those who oppose it?
Asst Prof Chng said both “direct incorporation” and “foreclosure provisions” can protect a definition of marriage from constitutional challenge through judicial review.
Judicial review is the process by which the High Court exercises 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 differ, as it requires different levels of support in Parliament.
Regarding constitutional challenges, Asst Prof. On a legal theory that the Constitution cannot be changed in a way that changes certain “basic features” or its “basic structure”.
“Our courts have not had an opportunity to decide whether this theory applies in Singapore,” he said, although several academics have argued it could.
“Our Court of Appeal noted that assuming this theory applies in Singapore, only ‘something basic and essential to the political system’ would be part of the ‘basic structure’.”
When asked this question, Adj Prof Tan said: “The debate is too focused on the meaning of ‘marriage’ and not on the consequences of being married.”
He said this requires consideration of how those who are married are treated differently than those who are not.
Some examples he cited are eligibility for new public housing, being considered next of kin in situations such as making medical decisions, being considered a spouse under the Intestate Succession Act, and adoption.
“Different treatment between classes of individuals” takes advantage of Article 12 of the Constitution that regulates equality and equal protection of the law, Adj Prof 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 a constitutional challenge.”
There have been no constitutional challenges in these individual areas since the “great challenge” thus far was against Section 377A, he said.