Section 377A Research Articles

Representation of social actors in The Straits Times and The Independent Singapore: A comparative critical discourse analysis of the repeal of Section 377A in Singapore

Section 377A was a decades-old law introduced in Singapore in 1938, which had made sexual intimacy between gay men, even when consensual, punishable by a maximum sentence of two years in prison. In Aug 2022, in what many considered as a historic moment in Singapore, the Prime Minister announced its repeal. Following the announcement, several related news articles were published by the news outlets The Straits Times and The Independent Singapore. This study, therefore, sets out to undertake a critical discourse analysis of these news articles, focusing on the representation of two groups of social actors, namely the Singapore government and gay people. Guided by a framework that constitutes the theoretical approach of Critical Discourse Analysis (CDA), Fairclough, Van Dijk and Wodak’s perspectives on power relations as discursive, as well as Van Leeuwen's theories on discourse construction and representations of social actors, the analysis of the textual data reveals distinct patterns in how the Singapore government and gay people are represented. In an area where there is little comparative critical discourse research on how more powerful groups and less powerful groups are represented in news coverage following significant legal and sociopolitical changes in a society, this article aims to deepen readers’ understanding of such discursive patterns and foster media literacy, thereby attaining the practical result of pointing readers in the direction of change – a desired outcome that CDA seeks through its research.

Queer Singaporean futures after 377a: establishing homonormativity as concrete labour

ABSTRACT In 2022, the state of Singapore decided to repeal section 377a - a law that criminalizes sex between men. Although it was heralded as an important step towards inclusion, along with the ever-growing global reach of neoliberal capitalism, there has also been an increasing criticism of the ways in which LGBT and queer values have been absorbed by, and sustains, the very systems which creates the oppression it aims to dismantle. Thus, I illustrate homonormativity in Singapore by rereading the state discourse surrounding the repeal of section 377a. In this article, I read homonormativity and concrete labour together in order to reveal how neoliberal states subsume, exploit, and reconfigure queerness by integrating it into expanding neoliberal logics of use values. The repeal of section 377a subsequently reveals the use values of gay sexual labour power in Singapore: one that is private and upholds the heteronormative social order. This article contributes to a growing materialist understanding of queer studies linked to Marxist political economy.

Asian values in Confucian masculinity: A discourse analysis of parenting advice to fathers

This article examines parenting advice to fathers published in the state-regulated English newspaper, The Straits Times, in Singapore. In November 2020, The Straits Times introduced ST Smart Parenting, with articles written as instruction guides for parents and autobiographical narratives. What is distinct about ST Smart Parenting are the articles written by and for fathers. Fathers are rarely the focus of parenting guides, as mothers have historically and in the present been positioned as having primary responsibility for childcare. Moreover, The Straits Times launched ST Smart Parenting amid two significant developments in Singapore – the publication of the White Paper for Singapore Women's Development as well as constitutional challenges to and the subsequent repeal of Section 377A. I argue that gender essentialism and heteronormativity is entrenched in parenting advice to fathers. As feminist critiques of gendered expectations make their way into public discourse, it is no longer tenable to criticize women per se or blatantly espouse practices that subordinate women and reinforce gender inequality. Consequently, parenting advice to fathers articulates the importance of fathers as benevolent providers of the family, gender differentiation in the family, and the conflation of marriage and parenthood.

Decriminalising homosexuality in Singapore: political responses from the perspective of secularism and electoral pragmatism

ABSTRACT Singapore’s Section 377A criminalises sex between men, making it punishable by up to two years in prison. Over the years, there have been calls to repeal the law and decriminalise homosexuality, citing human rights, access to health care and social support. However, opponents argue that it goes against traditional and religious values and would lead to a breakdown of social order. The article explores the issue of, and the political responses to, decriminalising homosexuality from the perspective of secularism and electoral pragmatism and the implications of decriminalisation for the country’s future.

The Politics of Compromise: Analyzing the Repeal of Section 377A in Singapore

This article discusses the repeal of Singapore's Section 377A, the anti-gay sex law, which was announced by Prime Minister (PM) Lee Hsien Loong during the 2022 National Day Rally. I contend that the declaration by PM Lee demonstrates the possibilities and limits of advocacy coalition-building in Singapore. Utilizing the concept of calibrated social liberalization, I postulate that the repeal of Section 377A was the government's response to shifting societal attitudes and years of strategic and adroit advocacy coalition- building. However, predicated upon this success is that LGBT issues are not critical to the People's Action Party's (PAP) legitimacy, which is why it is willing to allow for contestations in this sphere. The PAP engages in social liberalization, without significant political liberalization; even then, the cultural liberalization is not absolute, as the government attempts to strike a political-electoral compromise with conservatives. Ultimately, calibrated social liberalization occurs in areas where there is significant public support, and on issues regarding which the government has no clear ideological predispositions.

CLASH OF LEGISLATIVE COMPETENCY ON MATTERS OF OFFENCES RELATING TO DECENCY

The Legislative Assembly of the state of Selangor has criminalized sexual intercourse against the order of nature by virtue of S. 28 of the Syariah Criminal Offences (Selangor) Enactment 1995. The power to enforce such law is vested on Jabatan Agama Islam Selangor (“JAIS”). However, the Federal Court’s decision in Iki Putra bin Mubarak v. Kerajaan Negeri Selangor & Anor [2021] MLJU 213 has garnered the attention of the public when the apex court ruled that the Selangor State Legislative Assembly had no power to create the offence of sexual intercourse against the order of nature. The impact of this judgment is immense as it is taking away the power of prosecution of such offence by the Syarie Prosecutor in Selangor. Furthermore, the Federal Court’s judgment also points out that the Penal Code has a similar offence (Section 377A), hence excluding the legislative competence of the state of Selangor to regulate the same. The Iki Putra judgment has become the impetus of this research that aims at identifying and examining the provisions in the Penal Code and Syariah Criminal Offences (Selangor) Enactment 1995 that are considered redundant, with specific reference to offences relating to decency only. In doing so, the research employs qualitative research design. Since this is a doctrinal and library-based research, the research adopts a content analysis method on the primary and secondary materials which include the study into legislation, case law, textbooks and journal articles. The research also applies a comparative approach to determine similarities and differences (if any) between the Penal Code and 1995 Enactment. The finding shows that some offences in both legislations are redundant which will lead to conflict of jurisdiction between civil and Syariah courts. These redundancies will ultimately cause difficulties in the future with the enforcement of Syariah criminal offences.

Challenging antisodomy laws in Singapore and the former British colonies of ASEAN

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.

Rightism, Reasonableness and Review: Section 377A of the Penal Code and the Question of Equality

This paper examines the article 12 equality jurisprudence with specific reference to the case law and legal discourse over the constitutionality of section 377A of the Penal Code (Cap 224, 2008 Rev Ed). This implicates interpretive method, construing legislative purpose in pre-Independence laws which have been legislatively debated and retained post-Independence, issues related to interpreting constitutional rights, and the judicial role in the face of morally contentious legal questions. The prevailing test of ‘reasonable classification’ and the accompanying presumption of constitutionality has been criticized in two primary ways. First, that it has been misapplied; second, that it constitutes deferential review, in according primary weight to the ‘reasonableness’ of Parliament and political constitutionalism, which detractors urge should be replaced by a more robust test of judicial scrutiny. The article contests the argument that section 377A fails to satisfy the reasonable classification test, particularly because it serves no purpose or an inadequate purpose given its original rationale. It argues that calls to revise the reasonable classification test in favor of a preferred vision of substantive equality constitute an unwelcome invitation to ‘rightism’ and a ‘living tree’ approach to judicial review, which trades in value arguments based on an egalitarian liberal theory of the good. It argues that scoping equality through the reasonable classification test remains appropriate within a communitarian polity, given the constitutional roles of the courts and Parliament, the wide-ranging reach of equality to any differentiating law, constitutional amenability and what might be described as a ‘moral questions’ doctrine, which informs a calibrated approach to judicial review.

Challenging the Constitutionality of Section 377A in Singapore: Towards a More Humanist Treatment of Homosexuality in Singapore Law

This paper examines the tensions between the law, politics and public opinion in Singapore via a landmark 2014 ruling that upheld the constitutionality of Section 377A of the Penal Code criminalising sex between men. It argues that the ruling dealt a serious blow to the human rights project for minority groups in Singapore due to complex socio-political biases towards homosexuals and a narrow legal logic that is overly deferential to the legislature. This “tyranny of the majority” not only reinforces longstanding prejudices against the Lesbian, Gay, Bisexual and Transgender (LGBT) community and deprives them of their rights, but potentially results in the graver consequence of compromising the integrity of the Singapore Constitution and the country’s democratic ideals. The paper also illustrates how the court of public opinion, split between conservative and liberal pro-humanist camps, not only keeps this issue at an impasse through opposing representations of homosexuality but also reflects an important ideological juncture that Singapore currently finds itself at as it navigates the path to modernisation and liberalisation. It urges a humanistic re-imagination of the law where the formulation and instrumentalisation of laws are constantly renegotiated and reworked to become more responsive as historical contexts and social relations between various parties beyond the State and its apparatus evolve. It also ventures that decriminalising homosexuality presents Singapore with the opportunity to define a new Asian post-colonial modernity and that the concept of “rights capital” can introduce greater equity and dignity within society.

Negotiating LGBTQ rights in Singapore: The margin as a place of refusal

The complex diversity of urban life in cities is often the cause of social friction but it can also spark change. Densely populated cities are places where individuals find community but they are also places where some communities become marginalised and excluded. In the city-state of Singapore community-based activism is an important strategy for minority groups claiming a right to their place in the city. Conceptualising the margin as a place of refusal, the paper focuses on how Singapore’s LGBTQ communities have contested and negotiated from their place at the margins of the city-state, calling into question the Singapore State’s hegemonic narratives of family and community for heteronormative nation-building. These contestations have resulted in strategies that both adopt and elide individual rights-based narratives that have centred primarily on the repeal of Section 377A of Singapore’s penal code. While the repeal of 377A remains critical, the paper focuses on three examples of Sayoni’s community advocacy, Pink Dot and education, which extend the discourse beyond the issue of repeal, and the single identity category of sexuality. Even as the fight for repeal continues, LGBTQ subjects are resisting, negotiating and advocating against violence, discrimination and making space for love and community in ways that co-opt and destabilise social norms in Singapore, thus occupying the margin as a place of radical openness.

The Strange Career of Gross Indecency: Race, Sex, and Law in Colonial Singapore

In 1938, the British enacted Section 377A of the Straits Settlements Penal Code, criminalizing male same-sex acts in Singapore. Although the law was neither the first nor only attempt to regulate same-sex activity, it represented a stark intensification in sexual policing. Yet, the reasons for the introduction of Section 377A remain elusive. New sources, including recently declassified documents, reveal that Section 377A intersected with the colonial state's wider project of social control. In the early 1930s, intensified policing of female prostitution inadvertently magnified the visibility of male prostitution in Singapore, just as homosexuality was emerging as a distinct conceptual category. Meanwhile, scandals about sexual liaisons between European officials and Asians men threatened British legitimacy. This “discovery” of homosexuality led the British to introduce Section 377A. As British troops arrived in Singapore in the late 1930s in response to Japanese expansionism in the Far East, concerns about blackmail, military discipline, and the colonial color line governed the enforcement of Section 377A. Between 1938 and 1941, the British disproportionately used Section 377A to punish Asian male prostitutes whom they thought had seduced European men. Secondarily, the British used the provision to deter European soldiers, sailors, and non-officials from exposing themselves to extortion. Seen in this light, Section 377A served as a response to changing configurations of race, class, and sexuality in colonial Singapore.

The Communitarian Case for Decriminalising Male Homosexuality for Singapore’s Common Good

Should Singapore’s conservative, communitarian society continue to criminalise male homosexuality in the name of its common good? This is the fundamental question raised by Singapore’s continued retention of Section 377A of the Penal Code, a colonial-era law that criminalises only male homosexual conduct. With reference to Parliament’s reasons for retaining 377A and scholarly arguments against homosexuality, this article reconstructs, and debunks, the best philosophical case in favour of 377A; namely, that it should be conserved to sustain communitarian Singapore’s common good. Instead, the article argues that, because homosexuality is morally permissible, 377A does not satisfy the ‘goodness’ component of the common good and hence does not, and cannot, sustain communitarian Singapore’s common good. Rather, a communitarian approach to 377A, one based on an inclusive conception of communitarianism and an aggregative conception of the common good, would lead to its repeal and vindicate gay men’s right to equality.

Collective Litigation and the Constitutional Challenges to Decriminalizing Homosexuality in Singapore

This article examines collective legal mobilization through the courts, or collective litigation, in a non‐liberal regime. It analyses the emergence and development of collective litigation to challenge the constitutionality of section 377A of the Penal Code, the law that criminalizes same‐sex sexual conduct in Singapore. The analysis focuses on the relational dynamics of collective litigation and legal subjectivities of the social actors involved, highlighting how social positions and strategic interests shaped their interactions and decisions on litigation. While gay rights activists emphasized their movement's collective interests when choosing the appropriate case and lawyers, a movement outsider pursued individual interests on behalf of a client. Due to their divergent social positions and strategic interests, the two teams competed with each other as they initiated two separate constitutional challenges. Tension between the teams led to conflict with constituents of the gay rights movement and influenced their relational dynamics with other parties.

The curious interplay between religion, equality and private male homosex in Singapore: time to cut the Gordian Knot?

ABSTRACTThis article examines the controversy arising from the statutory proscription of private male homosex in Singapore vide section 377A of the Singapore Penal Code, and its subsequent judicial treatment. It traces the religious roots of the spread of anti-homosex laws to British colonies, and considers how the debate remains centred on the interplay between religion, morality and the law. It argues that while individuals must be entitled to maintain their own religious beliefs, these are no longer a legitimate basis to justify the imposition of legal sanctions on others – especially in a secular state built on the foundations of a multi-cultural social milieu. Neither society nor the state should trespass into the sphere of private morality, unless authorised to do so by the constitution or on a patent ‘harm’ rationale. In addressing the conflict between the Christian right minority and the male homosexual community in Singapore, Article 15 (‘freedom of religion’) should be read harmoniously with Article 12 (‘equality’) of the Singapore Constitution: freedom of religion must also include the converse – freedom from narrow religious beliefs in the context of private morality.

Between Judicial Oligarchy and Parliamentary Supremacy: Understanding the Court's Dilemma in Constitutional Judicial Review

This article considers the dilemma that constitutional judicial review presents to the most well-meaning of judges — that of navigating the narrow and difficult road between parliamentary supremacy and judicial oligarchy. It examines the Singapore Court of Appeal’s delineation of legal and extra-legal considerations in view of Ronald Dworkin’s theory of adjudication in determining the constitutionality of section 377A of the Penal Code in Lim Meng Suang v. Attorney General. It proposes an alternative natural law approach to constitutional judicial review based on Radbruch’s formula, which helps courts to avoid the pitfalls of judicial idiosyncrasies and usurpation of legislative mandate while staying true to constitutionalism.

New Approaches to the Constitutional Guarantee of Equality Before the Law

In a recent series of challenges to Section 377A of the Penal Code, the courts have developed the jurisprudence on review of legislation under Art 12(1) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”). Both the High Court and the Court of Appeal set a very high (but not insurmountable) threshold, but each did so in a different manner due to differing conceptions of equality. A critical examination of both approaches shows that the courts’ conclusions are ultimately defensible more as a means of disposing of the instant case than as a watertight doctrinal foundation for Art 12(1) adjudication. The judgments also bring up other miscellaneous areas for further development.

A ‘Great Affective Divide’: How Gay Singaporeans Overcome Their Double Alienation

ABSTRACTSince its independence in 1965, Singapore has been trying to unify its diverse ethnic, linguistic, and religious communities under one coherent national identity. Queer Singaporeans, however, suffer from a double alienation from the nation. While socially ostracised by the existing anti-sodomy Section 377A and the queer-unfriendly state policies that it justifies, they also suffer from that inability to identify with the nation called the ‘Great Affective Divide’. In this essay, I aim to achieve two goals. Firstly, I invoke the idea of cultural citizenship as I ethnographically investigate the efforts that queer Singaporeans make to overcome their national estrangement, particularly an event called ‘Pink Dot’. While such efforts do not receive universal support from queers, they are essential in the development of a better understanding of it means to be citizens of Singapore. Secondly, rather than wanting to remain socially marginal and critical of the norm, queers actually express their desire for national inclusion through Pink Dot. Yet, I argue that it would be erroneous to read this desire as ‘homonationalism’. As such, Pink Dot provides a fertile example that counters the conventional view within Queer Studies that queers always resist the hetero-patriarchal norm.

Equality and Singapore’s First Constitutional Challenges to the Criminalization of Male Homosexual Conduct

In 2013, in Lim Meng Suang and Kenneth Chee Mun-Leon v Attorney-General1 and Tan Eng Hong v Attorney-General,2 the High Court of Singapore delivered the first judgments in the jurisdiction considering the constitutionality of section 377A of the Penal Code, which criminalizes acts of ‘gross indecency’ between two men, whether they occur in public or private. The Court ruled that the provision was not inconsistent with the guarantees of equality before the law and equal protection of the law stated in Article 12(1) of the Constitution of the Republic of Singapore. The result was upheld in 2014 by the Court of Appeal in Lim Meng Suang and another v Attorney-General3 with slight differences in the reasoning. This article examines the courts’ analysis of equality law, and submits in particular that the courts ought to re-evaluate whether they should apply a presumption of constitutionality, refuse to assess the legitimacy of the object of the impugned provision, and rely on a standard of mere reasonableness or lack of arbitrariness when determining if a rational relation exists between the provision’s object and the differentia underlying a classification used in the provision.

Examining How Communication and Demographic Factors Relate to Attitudes Toward Legalization of Same-Sex Marriage in Singapore

The controversial issue of same-sex marriage has sparked debates on political, social, moral, and religious fronts in many countries (Duggan, 2008). As of March 2013, 11 countries, including Canada and Denmark, as well as several regions in Brazil and the United States, have legally accepted same-sex marriages (Stritof & Stritof, 2013). However, same-sex marriage is illegal in most Asian countries, such as Japan and China (Koh, 2012). Similarly, same-sex marriages are not allowed in Singapore, under Section 377A of the Singapore Penal Code, which criminalizes sexual relations between adult men (Outrages on decency, 1985). The debate on same-sex marriages has been ongoing within the island-state (Koh, 2012; Lai, 2013). In 2011, the annual ‘‘Pink Dot’’ event in Singapore attracted over 10,000 people to advocate sexual freedom (Tan, 2011). Supporters of gay rights have called for a repeal of Section 377A in 2007 when the bill to amend sections of the Penal Code was debated in the Singapore parliament (Li, 2007). However, the majority of the Singaporean public hold negative attitudes toward lesbian and gay men (Detenber et al., 2007) and were against legalization of same-sex marriages in Singapore (Ho, Chen, & Sim, 2013). Furthermore, positive portrayals of lesbian and gay men lifestyles are discouraged in traditional media, in part, due to conservative public opinion and values (Radcliffe, 2008). Although studies on public opinion of same-sex marriage were mostly conducted in Western countries (Levina, Waldo, & Fitzgerald, 2000; Mazur & Emmers-Sommer, 2002; Riggle, Ellis, & Crawford, 1996), a small number of studies are beginning to manifest in Asia (e.g., Basu, 2007; Detenber, Cenite, Zhou, & Malik, 2009; Ho,

Legislation and Case Notes: The Power of Legal Processes and Section 377A of the Penal Code

On 21 August 2012, the Court of Appeal issued a landmark decision that elucidates the conditions under which a person has legal standing to challenge legislation for being in violation of a constitutional right in Singapore. In allowing the appeal and finding that the appellant in the case of Tan Eng Hong had locus standi to argue that s. 377A of the Penal Code infringes art. 12 of the Constitution of the Republic of Singapore, the decision enabled the fate of a contentious criminal provision to be determined by a full hearing. As doctrinal analysis of this decision will undoubtedly be forthcoming and abundant, this commentary will examine its implications from a different angle.