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

Abstract

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.