Gender and Constitutionalism in Singapore

1. Gender and Constitutionalism in Singapore The Non-Relevance of the Constitution? Jaclyn L. Neo

2. The Gender Egalitarian Agenda “Women who form nearly half of our population have an important part to play in our national construction. In the first instance in order to emancipate them from the binds of feudalism and conservatism a monogamous marriage law will be passed.… Furthermore to free working-class women from domestic drudgery …we shall carry out an extensive education campaign on family limitation and the rights of women.… We shall foster the principle, if necessary by legislation, that there shall be equality of women with men in all spheres and we shall encourage them to come forward to play a leading role in politics, administration, business and industry, education and in other spheres.” People’s Action Party (PAP) 1959 Elections Manifesto

3. Some Highlights

4. Progressive Gender Policies 1. Equal rights and duties in marriage: Women’s Charter 1961 – marriage as an ”equal co-operative partnership”. • Monogamy (except for Muslims). • Section 46(1): “… mutually bound to co-operate with each other in safeguarding the interests of the union and in caring and providing for the children.” • Section 46(2): “right separately to engage in any trade or profession or in social activities.” • Section 46(3) : “The wife shall have the right to use her own surname and name separately.” • Section 46(4): “equal rights in the running of the matrimonial household.”

5. Progressive Gender Policies 2. Reproductive rights: Termination of Pregnancy Act 1970 – up to 24 weeks and thereafter where medically necessary. • Section 4 (1)(a) “ No treatment for the termination of pregnancy shall be carried out if the pregnancy is of more than 24 weeks duration unless the treatment is immediately necessary to save the life or to prevent grave permanent injury to the physical or mental health of the pregnant woman”. • But note: conscientious objection permitted under the statute, except under medical emergency (section 6).

6. Progressive Gender Policies 3. 1995: Singapore ratifies CEDAW . 4. 2004: Singaporean mothers can pass citizenship by descent for child born overseas. 5. 2008: partial abolition of marital immunity for rape (where relationship has broken down) - 2018 recommendation to abolish marital immunity completely. 6. 2017: Single mothers receive same maternity leave benefit.

7. Relevance?

8. Equal Protection, Article 12 (1) All persons are equal before the law and entitled to the equal protection of the law.

9. Gender Not Explicitly Prohibited Basis for Discrimination (2) Except as expressly authorised by this Constitution, there shall be no discrimination against citizens of Singapore on the ground only of religion, race, descent or place of birth in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment. Cf. Malaysia’s 2001 Constitutional amendment

10. Constitutionalizing Gender Equality? Potential Conflicts

11. Gender Equality &Religion

12. Pregnancy Discrimination vs. Constitutional Right to Group Religious Autonomy • Faith Community Baptist Church v AG (OS 932 of 2013) • Section 84, Employment Act - Right to maternity benefit unaffected by notice of dismissal given without sufficient cause. • Breach of church code of conduct – sufficient cause? • Deputy Commissioner of Labour: Not sufficient cause. • Judicial review application – constitutional right to church autonomy.

13. Constitutional Provisions Case withdrawn. Article 15 (3) Every religious group has the right (a) to manage its own religious affairs; (b) to establish and maintain institutions for religious or charitable purposes; and (c) to acquire and own property and hold and administer it in accordance with law.

14. Administration of Muslim Law Act(State Legal Pluralism) • Requirement of male guardian (wali) to marry. • Unequal right to divorce • Husband – pronouncement of divorce (talak) – confirmation by the court. • Wife – require husband’s consent, agreement, or satisfy grounds of divorce • Underaged marriage for women (below 18 years but after puberty) permissible under special circumstances. • Islamic inheritance: men twice the share of women heirs.

15. Limitations (3) This Article does not invalidate or prohibit — (a) any provision regulating personal law; or (b) any provision or practice restricting office or employment connected with the affairs of any religion, or of an institution managed by a group professing any religion, to persons professing that religion.

16. Same-Sex Marriages

19. Women’s Charter, s 12 Avoidance of marriages between persons of same sex • A marriage solemnized in Singapore or elsewhere between persons who, at the date of the marriage, are not respectively male and female shall be void. • BUT: a marriage solemnized in Singapore or elsewhere between a person who has undergone a sex re-assignment procedure and any person of the opposite sex is and shall be deemed always to have been a valid marriage.

20. Case withdrawn.

21. Concluding Thoughts

22. Gender and Gendered Inequality • Gendered policies remain, e.g. Working Mother’s Child Relief • Domestic Violence – unmarried individuals in intimate relationships not eligible to apply for protection orders under the Protection from Harassment Act. • Disadvantages for single mothers. • Representation at the highest levels of government, corporations, and institutions.

23. Highest Echelons of Government: Cabinet 16% of Cabinet of 19