On 5 September 2023, the Hong Kong Court of Final Appeal ruled by majority that same-sex couples should be provided “access to an alternative legal framework in order to meet basic social requirements and to have a sense of legitimacy”. The majority of the judges – Justice Ribeiro PJ, Justice Fok PJ and Justice Keane NPJ – added in their judgment in the case of Sham Tsz Kit v Secretary for Justice, that this would “[dispel] any sense that they belong to an inferior class of persons whose relationship is undeserving of recognition”.
Two of the judges – Chief Justice Cheung and Mr Justice Lam PJ – differed from the conclusions reached by the majority.
Nevertheless, all of the judges agreed that the constitutional freedom of marriage guaranteed and protected under the Basic Law and Hong Kong Bill of Rights is confined to opposite-sex marriage.
Thus, there was no constitutional right to same-sex marriage under Article 25 of the Basic Law and Article 22 of the Hong Kong Bill of Rights, and there was no obligation on the part of the Hong Kong authorities to recognise foreign same-sex marriages.
Legal Challenges to the Definition of Marriage
The decision by the Hong Kong Court of Final Appeal is the latest in many court challenges around the world to the definition of marriage as an opposite-sex union.
There is an ongoing legal challenge to the legal definition of marriage in the Indian Supreme Court. The court has reserved judgment after 10 days of hearing, and its verdict is expected to be announced in due course.
However, in August 2022, the Indian Supreme Court had delivered a judgment rejecting the concept that “family” consists of “a single, unchanging unit with a mother and a father (who remain constant over time) and their children”. Instead, it opined in the case of Deepika Singh v Central Administrative Tribunal and Others that “Familial relationships may take the form of domestic, unmarried partnerships or queer relationships.”
In the United States, same-sex marriage was legalised throughout the country by a 5-4 majority of justices on the Supreme Court in the 2015 case of Obergefell v Hodges. Justice Kennedy opined that: “As the State itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects.”
Likewise, in Canada, same-sex marriage was legalised through the courts. It began with the cases of Halpern v Attorney General of Canada (in Ontario) and Hendricks v Québec (in Quebec) in the years 2002 and 2003. This led to a series of numerous other court decisions throughout the provinces and territories of Canada which similarly declared the legal definition of marriage as between a man and a woman to be discriminatory on the basis of sexual orientation.
Article 156 of the Singapore Constitution
These developments elsewhere are a key reason why the Singapore Parliament decided to both repeal Section 377A of the Penal Code and insert Article 156 into the Singapore Constitution to protect the definition of marriage from legal challenge.
During the Parliamentary debates in November 2022, Law and Home Affairs Minister K. Shanmugam referred to decisions of the Indian Supreme Court and alluded to “many countries where the laws have been changed through the courts”. Likewise, Minister for Social and Family Development Masagos Zulkifli warned of “the perils of court-led change”.
Article 156 of the Constitution empowers the Legislature to, “by law, define, regulate, protect, safeguard, support, foster and promote the institution of marriage”. It also empowers the Government and any public authority to “protect, safeguard, support, foster and promote the institution of marriage”.
Conversely, Article 156 protects laws and policies that define marriage as a union between a man and a woman or are based on such a definition of marriage from being challenged on the basis of any infringement of any fundamental liberties contained in Part 4 of the Constitution.
Why did the Government decide to exclude the whole of Part 4 (fundamental liberties)?
According to the Minister, this was to rule out the possibility of “additional creative arguments”, such as the argument that marriage be a form of association that is protected by Article 14 (right to freedom of association). Thus, “if we want to properly protect the heterosexual definition of marriage from Court challenge, we have to exclude the whole of Part 4.”
Even as Parliament repealed Section 377A and amended the Constitution to insert the new Article 156, Deputy Prime Minister Lawrence Wong declared to the media that the definition of marriage – as being between a man and woman – will not change under his watch should the ruling People’s Action Party be re-elected at the next General Election. At the same time, the Government declared that it had “no intention of changing the definition of marriage, nor the policies that rely on this definition”.
Will it Hold?
There have been criticisms against Article 156, one of which is the so-called “basic structure” doctrine in constitutional law. This is a legal doctrine which postulates that Parliament’s powers to amend the constitution are not unlimited, and Parliament cannot amend the constitution to remove its fundamental features.
As one writer puts it, “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?”
This “basic structure” doctrine has not been definitively decided by the Singapore courts. Time and again, Singapore’s apex court – the Court of Appeal – has declined to rule on the matter.
For example, in a 1990 case, the apex court was asked to decide whether Parliament could limit the court’s powers to review orders of detention issued under the Internal Security Act. In the case of Teo Soh Lung v Minister for Home Affairs, the court avoided the question by simply deciding that the arguments did not have sufficient factual basis to support them, and thus any decision on that question was “unnecessary”.
More recently, in the 2020 case of Daniel De Costa Augustin v Attorney-General, the apex court opined: “It is plain that the [basic structure] doctrine has yet to be accepted as part of our law.” In a unique case involving the 2020 General Elections, which were held during COVID-19, it was argued that the right to vote was part of the basic structure of the Constitution and in that sense, it is a “fundamental” right which cannot be abrogated by Parliament.
While the court accepted that the right to vote “is plainly a constitutional right”, the court considered the assertion that the basic structure doctrine formed part of Singapore law to be “mistaken”.
It is foreseeable that Article 156 may one day be challenged in court on the basis that it is a violation of the “basic structure” doctrine. For now, it is an open question whether or not the “basic structure” doctrine will be accepted by the Singapore courts and, more importantly, whether the courts will strike Article 156 down on the basis that it violates the doctrine.
What Could Have Been Better?
A better way to protect the definition of marriage and related policies – as well as avoid the legal risks demonstrated by the latest decision by the apex court in Hong Kong – would have been to directly enshrine marriage in the Singapore Constitution.
As an institution whose whole derives from the Constitution and whose duty is to interpret and uphold it faithfully, any legitimate court would be badly remiss if it were to go against the clear language of the highest law of the land.
Various groups, including Protect Singapore and the Alliance of Pentecostal and Charismatic Churches of Singapore, had called for this move to be made. Member of Parliament Alex Yam “would have preferred to push for heterosexual marriage to be enshrined or codified as a fundamental liberty in our Constitution”, even though he still accepted Article 156 and voted in favour of the amendment in accordance with his party’s wishes.
That said, the surest protection remains in the hearts and minds of the citizens.
Ultimately, in a democratic society, laws and policies can only go so far and last as long as society continues to desire them. No government in a functioning democracy can possibly swim against the tide of public opinion for too long. Such a government would risk being ousted at the next election.