One step forward, two steps back? Enshrining gay (in)equality in the Singapore Constitution

In 2007, in response to questions on when Singapore planned to decriminalize consensual same-sex relations between men, Singapore’s founding Prime Minister Lee Kuan Yew said that Singapore will “follow the world… [a] few respectable steps behind”. Fifteen years later, the former British colony has announced that it would abolish Section 377A of the Penal Code 1871, an offence criminalizing “gross indecency” between men which can be punished with up to 2 years’ imprisonment. 

While Singapore follows in the footsteps of India, Botswana, Antigua and Barbuda, and St. Kitts and Nevis, its path to decriminalization has been quite different. While the courts in those jurisdictions had struck down their respective anti-sodomy laws for violating the constitutional rights of LGBT people, Singapore’s highest court did not reach the same conclusion and instead dismissed three sets of constitutional challenges on procedural grounds in Tan Seng Kee v Attorney-General. Nevertheless, it suggested in obiter that Section 377A potentially violates the right of gay men to the equal protection of the law under Article 12 of Singapore’s Constitution. The “significant risk” of the law being struck down in a future court challenge convinced the government to repeal Section 377A. 

The Singaporean LGBT community has been slow to celebrate the repeal because, in conjunction with the repeal of Section 377A, the ruling government also tabled a bill to enact a new Article 156 in the Constitution, which would immunize laws and policies from being struck down for violating any person’s constitutional rights on the basis that they define marriage as a union between a man and a woman. Like the repeal of Section 377A, Article 156 was introduced out of fear that the courts will herald marriage equality someday based on the constitutional right to equality. 

It should be clarified what Article 156 is not: it does not constitutionalize heterosexual marriage. According to the Law Minister, Article 156 is “different from enshrining the definition of marriage in the highest law of the land”. This contrasts with the absolute prohibition against same-sex marriages under Article 31 of the Constitution of Uganda, Article 72 of the Constitution of the Russian Federation and Article 41 of the Constitution of Slovakia. Instead, the government had proposed Article 156 to “make it clear in the Constitution that it is Parliament's prerogative to define marriage as being between a man and a woman and to make other [so-called] pro-family policies on that basis”. 

Article 156 states that none of the fundamental liberties enshrined in Part 4 of the Singapore Constitution may invalidate a law or exercise of executive authority by reason that they are based on a definition of marriage as a union between a man and a woman. For example, Section 12 of the Women’s Charter states that “a marriage solemnized in Singapore or elsewhere between persons who, at the date of the marriage, are not respectively male and female is void”. Article 156 would purportedly immunize Section 12 from being struck down by the courts for violating the constitutional rights of same-sex couples. Indeed, the Singapore government has pointed to the Indian Supreme Court’s recent decision in Deepika Singh v. CAT as an example of why Article 156 is necessary to safeguard its “pro-family” (heterosexist) laws and policies. 

This constitutional amendment will in all likelihood be enacted. While a constitutional amendment can only be passed with a supermajority vote, the ruling People’s Action Party has never had less than a parliamentary supermajority since Singapore’s independence in 1965. However, it remains to be seen whether Article 156 would pass constitutional muster. 

The Singapore courts have held that a core feature of the rule of law is the principle that all power has legal limits. This raises the question as to whether, in enacting Article 156, the legislature’s power to amend the Constitution is unlimited. Article 156 arguably renders the fundamental liberties enshrined in Part 4 of the Constitution nugatory for LGBT people. Insofar as those constitutional rights are part of the “basic structure” of the Singapore Constitution, can the legislature amend the constitutional document to destroy parts of its basic structure? While the Singapore High Court has answered this question in the affirmative, the highest court - the Court of Appeal - has not yet addressed this question. 

Further, Article 156 purports to oust the court’s jurisdiction by preventing the court from striking down laws and executive actions that violate the fundamental liberties enshrined in Part 4 of the Constitution. The Court of Appeal has suggested that statutory ouster clauses which prohibit judicial review of the exercise of the discretionary powers may not only be incompatible with the rule of law but also violate Article 93 of the Constitution, which vests judicial power in the courts. Insofar as Article 156 is a constitutional ouster clause, its validity will also depend on the first question as to the basic structure doctrine insofar as judicial review is part of that basic structure.

Ultimately, it might be premature to determine whether the combined repeal of Section 377A and the enactment of Article 156 is a step forward or back for queer equality. If Article 156 was intended to keep LGBT activists away from the courts, it is likely to have the opposite effect given the thorny constitutional questions that it raises. In the meantime, Singapore persists with staying a few steps behind when it comes to the equal treatment of LGBT people on the little red dot.

Daryl WJ Yang is an Associate in Dispute Resolution at Baker McKenzie Wong & Leow.