https://orcid.org/0000-0002-7923-8366
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Abstract
In 2007, Section 377 of Singapore’s Penal Code, a colonial-era law that criminalized sexual activities “against the order of nature,” was removed by Parliament. Section 377A, however, the law specifically criminalizing gay male sex, was kept on the books. Three years later, the first judicial challenge emerged, and after a change in standing requirements, a second challenge followed, both to be ultimately dismissed in 2013. By end of 2018, two new judicial challenges emerged, and by September 2019, another lawsuit was mounted—all three to be heard in November 2019. Despite having survived several constitutional challenges, could Singapore’s lawsuits to strike down Section 377A provide guidance or inspiration to similar attempts to repeal 377 or 377A in ASEAN? This article begins by examining the roots behind 377 and 377A and the attempts to repeal these laws in Singapore. Next, it explores the legal situation in the Southeast Asian nations with similar laws due to their common British colonial histories (Malaysia, Brunei, Myanmar) and discusses the position ASEAN has taken on anti-LGBT (lesbian, gay, bisexual, and transgender) laws in these nations. The article concludes with a discussion on how Singapore’s experience, as well as ASEAN human rights mechanisms, can potentially be used to expand and protect the rights of LGBT people in Southeast Asia.
Notes
1 It should be noted that the Pink Dot is not endorsed by the government and is only possible because changes in the law in 2008 allowed for public demonstrations. In fact, in 2017, amendments to the Public Order Act were made to ban foreign participation, perhaps in order to restrain the growth and popularity of the event and to appease religious groups in Singapore who opposed it. See Radics (Citation2019a: 39–41) for further details.
2 The phrase “transportation for life” involved the sending of a convict into banishment or exile (see Malik Citation1994).
3 While this was a period of relative openness, it is also important to recognize that Singapore retained many restrictive laws to facilitate economic growth but also to maintain control over its citizenry under the guise of “Asian values.” See Radics (Citation2014a: 63–76), Langlois (Citation2001: 21–24), and Barr (Citation2000: 310–313). Such restrictions on personal liberties can be seen in Singapore’s refusal to sign on to international agreements such as the United Nations International Covenant on Civil and Political Rights, which has been interpreted by the Human Rights Committee as prohibiting antihomosexual criminal laws (Tan Citation2015: 419; Gerber and Gory Citation2014: 404).
4 It should be noted that when Langlois wrote this piece, Thailand was still considering the Gender Equality Bill that was eventually passed in September 2015. The Philippines has a similar bill entitled the Sexual Orientation and Gender Identity Expression Equality Bill and has struggled over the past 20 years to recruit enough support to pass it.
5 See Meredith Weiss (Citation2021), “Building Solidarity on the Margins: Seeking SOGIE Rights in ASEAN,” in this issue for a discussion on how the government’s policing of LGBT communities has worsened after the recent elections and a more professedly Islamist government supplanted Mahathir’s party in March 2020.
6 The punishment for liwat is the same for zina (adultery). See Syariah Penal Code Order (2013: §82[1]).
7 According to Lee Jones (Citation2008: 273), “Constructive engagement (CE) was initially devised by Thailand’s foreign ministry to normalize its relations with Burma following decades of interference there…. CE in relation to Burma … reflected the economic and security interests of ASEAN’s dominant elites, who were seeking to displace the Cold War security framework in favor of expanding regional trading networks.”
8 While the article was in production, the Court of Appeal of Singapore eventually struck down all three challenges to Section 377A. See Ong Ming Johnson v Attorney-General and Other Matters [2020] SGHC 63, released on March 30, 2020.
Additional information
Notes on contributors
George Baylon Radics
Dr. George Radics is a Senior Lecturer in the Department of Sociology at the National University of Singapore. His interests are law and minorities, sociology of the law, criminal law, sociology of emotions, postcolonial studies, and Southeast Asia.