Singapore’s anti-gay law 377A: was male prostitute habit of British civil service the real target?
- The Lion City’s law against gay sex is being challenged in court as unconstitutional
- Key to the case will be declassified British government archives suggesting the law was originally aimed at misbehaving officials
That is one of the key questions Singapore’s High Court will have to grapple with as fresh challenges to the controversial law – Section 377A – get under way in closed door hearings. In doing so, Justice See Kee Oon is expected to examine a new set of declassified British government archive files that shed light on the colonial administration’s reasons for introducing the law – which remains on the statute books today though is not usually enforced.
Bryan Choong, one of three local gay rights activists to have mounted separate but similar constitutional challenges to the law, is relying on the documents to advance his case.
In the court submissions, seen by This Week in Asia, are references to a 1940 report by colonial authorities in Singapore to a top official in London, in which the law is cited in the dismissal of several administrators found to have been “associating” with male prostitutes.
The report could be vital in proving the law was meant to target commercial sex rather than criminalise all consensual gay sex between men.
Doing so would help show the law’s effects have been “overly broad” compared to its original purpose and that it discriminates against a group of people – rendering it unconstitutional.
The constitutional challenge by Choong and the two other activists is being watched closely as it is the first such effort since a gay couple’s failed bid in the country’s highest court, the Court of Appeal, to repeal the law in 2014. Since then, views on homosexuality and gay marriage have softened in the island republic, one of Asia’s most Westernised societies.
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A poll of more than 4,000 people published this year by the state-backed Institute of Policy Studies think tank showed that opposition to gay marriage had fallen to 60 per cent from 74 per cent in 2013.
Prime Minister Lee Hsien Loong’s government has said it is keeping Section 377A in the penal code to reflect disapproval of homosexuality among the majority of Singaporeans, but that it will resist actively enforcing the law.
In their court filing, Choong’s lawyers Harpreet Singh Nehal, Jordan Tan and Remy Choo Zheng Xi argued that the 1940 report to George Gater, who held the title of Permanent Under Secretary of State for the Colonies, made “crystal clear” there was a relationship between the enactment of Section 377A and a rampant problem with male prostitution in Singapore at the time.
The report detailed two events in 1938, the year the law was enacted. The first, which took place three months before Section 377A came into effect, involved a colonial official named Reeves who was suspected of having relations with male prostitutes but was not charged initially as there was no proof.
The second event involved another official, Rivaz, who was dismissed as the charges – similar to those made against Reeves – were justified, following the enactment of Section 377A.
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Choong’s lawyers also cited a case in which a European Warder of the Straits Settlements Prisons, Moses, resigned after being caught with two male prostitutes.
They argued there was a “problem within the civil service of civil servants patronising male prostitutes” and that this gave rise to the law.
The lawyers also built on arguments by the gay couple Lim Meng Suang and Kenneth Lim, whose challenge was rejected by the Court of Appeal in 2014.
The lawyers considered a 1937 report – also used by the couple – that noted a discovery of a “widespread existence of male prostitution” in the British colony during the 1930s.
The Court of Appeal in its 2014 ruling considered the possibility that Section 377A could have been enacted with the specific purpose of criminalising male prostitution, but ruled otherwise due to a lack of evidence. It stated instead that the law was for “general application”.
Choong’s lawyers argued the newly surfaced historical files provided context for the 1937 report, and that it showed a “heightened and urgent increase in the concern” over male prostitution then, and “explains” the subsequent drafting of Section 377A.
“Nothing in the comprehensive crime reports from 1934 to 1938 demonstrates any concern about private, consensual, non-commercial acts of sexual intimacy between men,” they said.
For these reasons, the lawyers concluded that Section 377A did not extend to penetrative sexual acts between consenting men.
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In their submissions, the lawyers said if the court held that the effect of Section 377A was not limited to commercial sex between men, the law would then be inconsistent with Article 12(1) of the Singapore Constitution, which states that all persons are equal before the law.
They argued that the purpose of Section 377A, which was to criminalise male prostitution, did not match its current effects, which criminalises gay acts more generally.
This way, the effect of Section 377A would be deemed “overly broad” and therefore, unconstitutional.
The lawyers also floated a second argument that the colonial-era rule was inconsistent with Article 14 of the Singapore Constitution, which protects the rights of all adults to freedom of expression through private consensual acts of sexual intimacy.
They argued that Section 377A prohibited the right of “one class of adult citizens” – homosexual men – from expressing consensual acts of sexual intimacy.
Describing the reach of the law as “absolute and categorical”, they said it had extended into the “privacy of one’s home and even long term, committed relationships”.
The issues raised by the lawyers have been hotly discussed within the legal community in recent weeks following the publication of a journal article on Section 377A by the retired chief justice Chan Sek Keong.
Chan, widely seen as one of post-independence Singapore’s most eminent justices, argued – in the same vein as Choong’s legal team – that Section 377A was enacted because of rising male prostitution and “not because homosexual conduct was not acceptable in Singapore society in 1938”.
Chan argued that a separate law, Section 377, covered penetrative sex and that 377A covered only non-penetrative acts. The government repealed Section 377 in 2007 and during the debate to amend the penal code MPs had “mistaken” the scope of Section 377A, Chan argued.
“No one knows what the MPs would have said or decided if they had known that Section 377A criminalises only non-penetrative sex,” Chan wrote in his report.
The High Court has set aside six days in November for the hearing involving the challenges by Choong and the other two activists, Roy Tan, a former organiser of the Pink Dot rally, and disc jockey Johnson Ong Ming.
Ong’s legal team told This Week in Asia they aimed to prove that sexual orientation could not be voluntarily changed and that it is “significantly determined by genetic, hormonal and other non-social environmental factors”.
“If the court agrees with us on the expert evidence, then we argue that Section 377A is an absurd law,” said one of the lawyers, Suang Wijaya.
“As we argue in detail in our written submissions, Section 377A goes beyond criminalising persons for their acts. Instead, the law criminalises male homosexuals for simply being who they are.”
This, Wijaya said, contravened Article 9(1) of the Singapore Constitution, which prohibits the deprivation of citizens’ personal liberty except in accordance with the law.
