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CNA Explains: Protecting marriage in the Constitution – what it could look like and what it means

How could marriage become 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, directly expressing a definition of marriage 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 Members of Parliament (MPs), excluding Nominated MPs. Currently, this means that at least 63 votes from the 94 elected and Non-Constituency MPs would be required. The ruling party has 83 MPs.

The second way is by including a constitutional provision that references the relevant provisions of the Women’s Charter or Interpretation Act and shields them from constitutional challenge. Such “shielding provisions” already exist in Singapore’s Constitution, Asst Prof Chng pointed out.

An example is Article 149(1) of the Constitution on legislation against subversion, which shields laws designed to prevent certain actions, such as the promotion of ill will and hostility between different races, from constitutional challenge.

Article 39A(3) of the Constitution, on Group Representation Constituencies (GRCs), also shields GRC-related legislation from constitutional challenge.

Such “shielding provisions” can be passed through the ordinary process of legislative amendment, requiring the support of a simple majority of the MPs who are present and voting.

But when asked this question, another legal expert said it “makes no sense” to enshrine a definition of marriage in the Constitution, and that there is “no need to do so”.

“If the idea is to make it harder to amend the definition of marriage, all that needs to be done is to make certain provisions of the law … amendable only by two-thirds majority in Parliament,” said Adjunct Professor Kevin Tan of the National University of Singapore’s Faculty of Law.

He referred to Section 12 of the Women’s Charter as an example, and adds: “Entrenchment can be done within the respective legislation without the need to tamper with the Constitution.”

If marriage is enshrined in the Constitution, is it here to stay? How could it be challenged by those who oppose it?

Asst Prof Chng said that both “direct incorporation” and “shielding provisions” are able to 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 they require different levels of support in Parliament.

On constitutional challenges, Asst Prof Ong highlighted a legal theory that the Constitution cannot be amended in a way that alters certain “basic features” or its “basic structure”.

“Our courts have not had an occasion to rule on whether this theory applies in Singapore,” he said, although various academics have argued that it could.

“Our Court of Appeal has remarked that, assuming this theory applies in Singapore, only ‘something fundamental and essential to the political system’ would be part of the ‘basic structure’.”

When asked this question, Adj Prof Tan said: “The debate has focused too much on the meaning of ‘marriage’ and not the consequences of being married.”

He said that this would require a consideration of how those who are married are treated differently from those who are not.

Some examples he cited are eligibility for new public housing, being considered next-of-kin for situations like making medical decisions, being considered a spouse within the meaning of the Intestate Succession Act and adoption.

“Differential treatment between classes of individuals” engages Article 12 of the Constitution governing equality and equal protection of the law, said Adj Prof Tan.

“The point here is that when the law treats one class differently from another (regardless of the definition of marriage), there is a potential for a constitutional challenge.”

There have been no constitutional challenges in these discrete areas since the “big challenge” has been against Section 377A so far, he said.

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