Read more about the ban here. The full paper by Prof Douglas Sanders entitled "377 and the unnatural afterlife of British colonialism" is available for download at the end of this article.
Article 377 of the Indian Penal Code of 1860 made "carnal intercourse against the order of nature" an offence. This provision, or something very close to it, is presently in force in all former British colonies in Asia with the exception of Hong Kong. Even the article number, 377, is repeated in the current laws in force in India, Pakistan, Bangladesh, Myanmar, Singapore, Malaysia and Brunei - as if it were a special brand name, all of its own. Sri Lanka, Seychelles and Papua New Guinea have the key wording from 377, but different article numbers. Parallel wording appears in the criminal laws of many of the former colonies in Africa. Surprisingly, viewing the matter from Asia, the 377 wording has never been a part of the criminal law in Britain.
377 is an amazingly successful law - if we judge it by its geographical spread and its longevity. In just three years it will be 150 years old.
There are three jurisdictions in Asia where LGBT issues have become public issues, and where there has been some extent of legal change. They are Hong Kong, Taiwan and South Korea. Of the three, only Hong Kong inherited colonial-era anti-homosexual criminal laws. We will look at developments in Hong Kong and Singapore.
In the West legal and social change developed slowly in the years after World War II. None of the modern LGBT NGOs has a history that goes back earlier. While there were some calls for law reform in the early years of the twentieth century, modern law reform movements start from scratch in the post-war period. Law reform begins with Illinois in 1961, the UK in 1967, Canada in 1969.
The visibility of gays and lesbians also begins in the West in the 1960s. Now there are openly gay elected members of legislatures in most western countries.
Amnesty International first took up gay and lesbian cases, in a limited way, in 1961. Now both AI and Human Rights Watch and other international human rights NGOs regularly address a range of LGBT issues.
A Law Reform Commission proposal in Hong Kong in 1983 called for the decriminalization of homosexual acts, in line with the British reforms. But reform was put off.
The United Kingdom signed the International Covenant on Civil and Political Rights and, in this way, it came to apply in Hong Kong. Human rights was a major issue in discussions leading up to the reversion of the colony to China in 1997. Hong Kong enacted a Bill of Rights based on the International Covenant. This was followed in 1991 by the decriminalization of consensual homosexual acts, though the reform, as in Britain, established an unequal age of consent. As in post-1969 Canada, the public issue moved from criminal law reform to prohibiting discrimination, though some criminal law issues remained.
In 1995-6 the Hong Kong Government issued a consultation paper on a general non-discrimination law. Anna Wu, a member of the Legislative Council, proposed an Equal Opportunities Bill that would outlaw discrimination on a number of grounds, including sexual orientation. The Hong Kong government responded with two bills dealing with gender and disability. They were enacted. An Equal Opportunities Commission enforces those laws.
LGBT groups mounted a campaign. 10,000 letters supported a bill on sexual orientation discrimination. But a counter campaign, largely by conservative Christian groups, produced 80,000 letters. A bill went to a vote just before reversion and was defeated by 29 votes to 27 - a very narrow loss.
The Basic Law, the new post-reversion constitution for Hong Kong enacted by the National Peoples Congress, confirmed that the International Covenant on Civil and Political Rights continued to apply in Hong Kong, though it had not, at that time, been signed by China itself. Matters of human rights were to be within the jurisdiction of the Hong Kong Special Administrative Region. Any law implementing the International Covenant would have priority over other enactments.
When the Hong Kong High Court ruled in 2005 that the Bill of Rights was a law implementing the International Covenant, this gave the Bill of Rights constitutional status, superior in force to other Hong Kong laws. Of course there would have been ways to avoid this conclusion in the particular case, most obviously by holding that the Basic Law did not have retrospective effect.
The 2005 case was a challenge by William Leung to the unequal age of consent for sexual activity. The High Court ruled that the general equality provision in the Bill of Rights invalidated the discrimination. This conclusion was in line with the UN Human Rights Committee decision in Toonen v Australia, which found a Tasmanian criminal law in violation of the provisions of the International Covenant. The High Court decision was upheld by the Court of Appeal in 2006. A more recent decision in July, 2007, by the Court of Final Appeal has invalidated another unequal provision, which had different rules on "public" space for homosexual and heterosexual activity.(1)
The issue of banning discrimination on the basis of sexual orientation continues to be considered. Two UN treaty bodies, dealing with the two major international human rights covenants, have urged Hong Kong to prohibit discrimination. A non-binding code of conduct was issued by the Home Affairs Bureau in 1996.
In 2004 the new Deputy Secretary for Home Affairs, Stephen Fisher, met with LGBT representatives and set up a Gender Identity and Sexual Orientation Unit to handle discrimination complaints, though it has no adjudicative powers. Fisher also set up a Sexual Minorities Forum with members from LGBT organizations. The forum has discussed a number of issues, including immigration issues for same-sex couples, sex reassignment surgery, social services, sex education and human rights education. Fisher also initiated a survey on public attitudes towards homosexuality.
The report indicated that the public was ambiguous on whether homosexuals are psychologically abnormal (41.9%), whether homosexuality contradicted family values (49.1%) or morals of the community (38.9%). Most respondents stated that they accepted their gay friends, co-workers, work supervisors and neighbors (76.1%, 79.9%, 77.5% and 78.0% respectively) while gays being teachers (60.2%) and family members (40.0% were less acceptable. While close to a third (29.7%) of the respondents considered discrimination based on sexual orientation as serious or very serious, 41% considered it of average concern and 41.6% considered that merely educational effort to eliminate discrimination was insufficient, the report concluded that legislation should not be introduced at that time. However, the report found solid support for legislation against discrimination in employment (41.6%), education (37.3%) and provision of services, facilities and goods (37.2%). In brief, the survey found that mere education is insufficient and that legislation should be enacted, just not at the moment. (2)
Three quarters of the respondents said they had never had direct contact with a gay or lesbian person.
After the 2005 decision in the Leung case, Donald Tsang, the Chief Executive of the Hong Kong SAR, warned that the "privatization of morals" was a danger to society. He is known to be a devout Roman Catholic. But in March, 2007, he took a different position in a televised debate between himself and the second candidate for the position of Chief Executive.
With respect to the question of sexual [orientation] discrimination, we have international human rights conventions and the Basic Law. We are within the purview of such legal framework. Discrimination is wrong. Despite my religious persuasion or anybody else's, we must face the reality of our society, listen to the diverse views of the community and legislate under the legal framework. This is the most appropriate way of handling it. (3)
This seemed to say that he would not oppose an anti-discrimination law, given that it would be in line with the human rights framework in place in Hong Kong.
There have been LGBT NGOs in Hong Kong since 1986, when a medical doctor founded the Ten Percent Club. After decriminalization in 1991, the number of organizations multiplied. In Asia only the Philippines and India are similar in having a significant number of NGOs, often with alliances to women's organizations and progressive social issues. Activists have become visible in Hong Kong. Small annual pride parades, on the International Day Against Homophobia, began in 2005.
Gay saunas have existed in Hong Kong for many years, though such places typically have little public visibility. Gay bars, much more open places, have existed for perhaps fifteen years.
There are no openly LGBT elected officials. The government's Sexual Minorities Forum is unique in Asia in hosting a public dialogue between activists and government officials.
Hong Kong, like Taiwan, South Korea and Singapore, has active conservative Christian organizations that oppose reform. This gives political debates something of an American flavor. Reform is actively contested and religious and family arguments are strongly put forward. But some reform has happened and public debate occurs. In contrast there is little or no public debate in places like Malaysia or Singapore.
Next page: Singapore
Singapore is a jurisdiction for which we have some information on enforcement. Mohan Gopalan has compiled a list of section 377A cases (the gross indecency provision), expanding an earlier list prepared by Lynette Chua.(4) Much of the information comes from news reports in the Straits Times. This overcomes one of the problems of the study of cases in India which did not include trial level decisions, which routinely are not found in the law reports.
Government figures gave the number of prosecutions for the years 2002 to 2006 as 25, 11, 13, 4 and 7. Almost all of the cases can be described as involving one or more of the standard concerns - public activity, underage partner or lack of consent. Out of 64 cases described by Gopalan, 6 were cases of police entrapment. Alex Au, commenting on the list, notes that there are no entrapment cases after 1994 and that cases after 2001 only involve minors or extortion.
Gopalan's list seems to omit a number of cases, probably guilty pleas that got no media attention. But both his list and the government's figures indicate a decline in prosecutions over the last number of years.(5)
Gay bars have been operating openly in Singapore for perhaps a decade. Gay saunas have been operating since about 2001. This takes pressure off 'public' places, like toilets, parks and swimming pools, which feature in the descriptions of many of the cases.
Local activist/entrepreneurs began a Singapore 'circuit party' coinciding with the national holiday. It was held at Sentosa park, a venue open for use by various groups. Wrapped in the Singapore flag, the Nation parties became bigger and bigger every year, drawing hot young guys from the region. Nation 04 in 2004 was, however, far too successful for the Singapore government. It was publicized in the South China Morning Post, the Asian Wall Street Journal, the Far Eastern Economic Review, Time magazine and numerous newspapers - but not a word in the strictly controlled local Singapore papers.
The event had become too big, too public. Singapore denied licenses for future Nation parties, and the spin off Snowball, and even for the gay Christian duo Jason and DiMarco. The lid was back on the pot. The Nation party moved to Phuket in Thailand for the next couple of years, openly welcomed by the governor of that very tourist-oriented province.
Singapore, then, is an example of a jurisdiction that retains a criminal law prohibition, but where general police non-enforcement is the norm. Singapore also prohibits the legal recognition of LGBT NGOs. Controls on the media limit LGBT news, though the Straits Times has reported on prosecutions. Prime Minister Goh ended the official ban on government hiring of gays and lesbians, giving a good secular medical explanation for homosexuality. Some of us are born this way, he said. And some of us are born that way. Current Prime Minister Lee described the present pattern as 'drawing a line,' balancing toleration and control.
WHY RETAIN LAWS THAT ARE BASICALLY NOT ENFORCED ?
Veteran Singapore gay activist Alex Au laments:
The Singapore debate about gay people in our midst ... is virtually non-existent.
He tells an amusing story of seeming to be unable to engage prosperous, well-educated Singaporeans in any kind of public policy debate on gay rights:
... she quickly assured me that she had lots of gay friends, in fact, she said, she suspected her boss at work was (hushed tones) a lesbian. ... "But it makes no difference to me," she made it a point to add. She herself strongly felt that sexuality was one's "private decision" and that "discrimination in any form is wrong."
"Indeed," I replied, "except that in Singapore it's more than just social discrimination. The state creates and sustains that discrimination through its laws."
"I know about that," she said, which only made me wonder if she had known about that.
At that point, I felt I had to cut to the chase. "Let me ask you then, do you think such laws should be repealed? Would you openly support repeal?"
"Well," she hesitated, "em... ah... maybe there are reasons for that."(6)
And, yes, indeed, there are reasons to maintain these particular unenforced criminal laws.
As we have seen, actual systematic attempts to enforce anti-homosexual criminal laws are rare. And when police activism has occurred in a serious way in the post-war period (as in Britain in the 1950s and Canada in the 1970s), it tended to destabilize the situation by provoking an activist reaction and perhaps a new public sympathy or support for gays and lesbians.
What then is the reason or the purpose for retaining such criminal laws and not enforcing them?
Perhaps there is a very simple explanation. Politicians want to avoid doing or saying anything about homosexuality. If the subject is seen as 'controversial,' no matter what the foibles of the law are, politicians can be happy with a situation in which homosexual issues are not talked about.
But more seems to be involved in the dual strategy of having a criminal law and not attempting to enforce it. Not only does this strategy avoid discussion of the merits of the criminal law, it can successfully block discussion of other issues.
There are a series of issues involving gays and lesbians that only starts with issues of criminal law. The issues, in sequence, are (1) being charged with a crime for having sex, (2) getting fired from your job, (3) being denied benefits available to heterosexual couples (pensions, health insurance, rent-controlled apartments), (4) equal rights in relation to children (custody, access, adoption, fertility treatment), (5) equal rights in immigration law to sponsor a partner, (6) social recognition and support (registered partnerships or marriage), (7) open inclusion in public institutions (teachers, professors, the judiciary, the cabinet, human rights commissions).
The issue that will come up most clearly after criminal law reform is employment. Why should a person be fired from his or her job simply on the basis of sexual orientation? This becomes a compelling argument, with individuals and politicians willing to say that they oppose discrimination (which is easier to say than that homosexuals deserve equality). After decriminalization, discrimination becomes the major public issue, as we saw in the cases of Hong Kong and Canada.
But if the legal system brands homosexuals as criminals, then how can we say that it should bar discrimination in employment? And even more obvious - if homosexual acts are criminal, it makes no sense to recognize same-sex relationships, even if it is for the specific purpose of pension rights or health insurance or successor rights to housing. And immigration rights! Why let more criminals in the country.
In other words, retaining, but not enforcing a criminal law, can block having to deal with any of these subsequent issues. It is clear in the United States that the decision in Bowers v Harwick, upholding a state level criminal law, was used in many judicial decisions to block various civil claims - relating to employment, spousal rights and parental rights.
In Lawrence v Texas, 2003, the successful constitutional challenge to US sodomy laws, the American Center for Law and Justice (linked to the evangelist Pat Robertson) said that it had decided to enter the case after concluding that acceptance of the gay rights arguments by the court might provide a constitutional foundation for same sex marriage. Focus on the Family and the Family Research Council argued in a joint brief in the case that the Texas criminal law was a reasonable means of promoting and protecting heterosexual marriage. Mr. Justice Scalia, in his dissent, said the decision placed heterosexual only marriage laws in question.
They weren't supporting the criminal law; they were opposing same-sex marriage. The same is true in Singapore. In 1993 the government of Singapore stated at the UN World Conference on Human Rights in Vienna that human rights were still essentially contested notions:
Singaporeans, and people in many other parts of the world do not agree, for instance, that pornography is an acceptable manifestation of free expression or that homosexual relationships is just a matter of lifestyle choice. Most of us will also maintain that the right to marry is confined to those of the opposite sex.(7)
Back in 1993, the Singapore government, virtually alone in the world, saw the right to marry on the horizon. Well, it certainly isn't on the horizon in Lion City, and 377 keeps it that way.
1 Secretary of Justice v Yau Yuk Lung Zigo, Lee Kam Chuen, Hong Kong Court of Final Appeal, 17 July 2007.
2 Roddy Shaw, Lesbian, Gay, Bisexual and Transgender rights working in Hong Kong, June, 2007, copy in possession of the author.
3 Quoted in Shaw, 2007.
4 See Mohan Gospalan, A heftier list of s.377 cases, Yawning Bread, May, 2007, accessed in July, 2007 at www.yawningbread.org.
5 See Why Section 377A is redundant, at www.yawningbread.org.
6 Alex Au, We're all for freedom and non-discrimination, aren't we?, Fridae online magazine, June 12, 2006.
7 Copy in possession of author. Some of this language was repeated by Singapore's Deputy Prime Minister S. Jayakumar in September, 2005, at the UN Summit. He repeated that most human rights were still essentially contested concepts. "But the penchant of some states to present their views as universal norms inevitably provokes resistance, unnecessarily politicizes the process and is ultimately unhelpful to the cause of human rights. Unless this deeper issue is squarely addressed, any changes will only be superficial." Quoted in UFP, U.N. assembly pressured over new human rights council, Japan Times, September 18, 2005.
The full paper by Prof Douglas Sanders entitled "377 and the unnatural afterlife of British colonialism" may be downloaded here.