Fridae

Singapore’s top court has dismissed a challenge to a law criminalising sex between men, but campaigners have vowed to keep fighting.

A panel of judges on the Court of Appeal on Monday has dismissed an appeal by three gay men, arguing they “do not face any real and credible threat of prosecution” under the law.

Section 377A was introduced in 1938 when the city-state was under British colonial rule. It prohibits consensual, same-sex sexual activity between men, and anyone found guilty of breaking the law can face up to two years imprisonment.

The ruling acknowledged the legislation has “long been a lightning rod for polarisation”, but the court did not find it to be a breach of the constitution. While the court failed to overturn the legislation, it did reinforce a suspension on the enforcement and arrest of men who engage in gay sex.

The latest ruling was a challenge against a High Court decision in 2020.

Singapore’s High Court dismissed three challenges to the law, which were heard together. The appeals were brought by Johnson Ong Ming, a DJ; Bryan Choong Chee Hoong, the former executive director of LGBT+ organisation Oogachaga; and Roy Tan Seng Kee, a retired medical doctor.

The court dismissed the three campaigners’ arguments that 377A was enacted in 1938 to curb commercial gay sex among British colonial civil servants, that queer men are “doubly criminalised” by the law and that a person’s sexual orientation can’t be changed.

The three men brought a challenge against the High Court ruling in 2021, saying the judge’s interpretation was wrong.

While the Court of Appeal did ultimately dismiss their case, the panel of judges did rule that Section 377A was legally “unenforceable”. The judges noted that the law remained because of its “symbolic weight for the conservative mainstream in Singapore”.

But they said the legislation “would not be proactively enforced” because of statements made in parliament by prime minister Lee Hsien Loong in 2007. The court noted that this sentiment was later echoed in a press release by attorney general Lucien Wong in 2018.

The judges ruled the “entirety” of 377A is “unenforceable unless and until the [attorney general] of the day provides clear notice” that they intend to enforce it.

The multicultural make-up of Singapore’s population of 5.6 million seems to push Singapore to being relatively socially conservative. Religion plays an important role in the day-to-day life of many people.

Why is homosexuality illegal in Singapore?

By taking advantage of regional instability and a power struggle within the Malaysian Sultanate, the British government colonised Singapore in 1819.

British control of the island included the introduction of the British legal system, which – at that time – included laws against sex between men.

Singapore became independent in 1965, but the colonial legal system remain in place.

Following a review of the Penal Code in 1938, the laws that policed sexual activity were documented within Section 377A of Singapore’s Penal Code. The laws meant that anal sex and oral sex were prohibited for everyone – heterosexual or homosexual. In 2007, amendments to the law specifically legalised anal sex and oral sex for heterosexual sexual encounters, but they remained criminalised for man-on-man sexual encounters. Sex between women isn’t covered by Section 377A and doesn’t appear to have ever been explicitly prohibited in Singapore law.

The punishment for sex between men is two years’ imprisonment. Prosecutions and convictions are rare, but the government has consistently resisted calls for the law to be reviewed.

Research into the archives of the British Government has shed some light on why Section 377A was enacted. A 1940 report to the British Government official responsible for the administration of Singapore reveals a direct link between the enactment of Section 377A and the colonial administration’s concerns about its Singapore officials’ extensive use of male prostitutes at that time. The 1940 report details disciplinary action taken against government officials in 1938 – the year that Section 377A came into effect. This suggests that Section 377A was designed to regulate and control prostitution rather than what was happening in private between consenting adults, but the reality of this law has been the criminalisation of gay men.