Collective Litigation and the Constitutional Challenges to Decriminalizing Homosexuality in Singapore
| Published date | 01 September 2017 |
| Author | Lynette J. Chua |
| Date | 01 September 2017 |
| DOI | http://doi.org/10.1111/jols.12037 |
JOURNAL OF LAW AND SOCIETY
VOLUME 44, NUMBER 3, SEPTEMBER 2017
ISSN: 0263-323X, pp. 433±55
Collective Litigation and the Constitutional Challenges to
Decriminalizing Homosexuality in Singapore
Lynette J. Chua*
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.
In recent years, while gay rights activists celebrated the legalization of same-
sex marriage in the United States, Britain, and elsewhere,
1
their counterparts
in Singapore were fighting a fundamental issue in their courts ± the
constitutionality of section 377A of the Penal Code that criminalizes sexual
433
*Faculty of Law, National University of Singapore, 469G Bukit Timah
Road, Eu Tong Sen Building, Singapore 259776
lynettechua@nus.edu.sg
I am grateful to Damian Chalmers, Scott Cummings, Swati Jhaveri, Anna-Maria Marshall,
Calvin Morrill, Alec Stone Sweet, the anonymous reviewers, and student assistant Koh
Wei Jie. Earlier drafts were presented at the Baldy Center for Law & Social Policy, SUNY-
Buffalo, as well as an October 2016 research workshop and `The Life and Future of British
Colonial Sexual Regulation in Asia' conference (8±9 October 2015) at the Faculty of Law,
National University of Singapore. The study was funded by the National University of
Singapore's Humanities and Social Sciences Research Grant (R-241-000-118-646).
1 Other jurisdictions that recognize same-sex marriage include Brazil, Colombia,
France, Ireland, New Zealand, and Uruguay.
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School
relations between men as `gross indecency'. The episode originated with a
lone individual who was arrested for having sex in the restroom of a
shopping centre. The criminal prosecution developed into two parallel
constitutional challenges, with the second supported by local activists,
lawyers from one of the country's largest firms, and US$107,000 raised
through Internet crowdsourcing. Although Singapore's highest court upheld
the law, the episode is remarkable. It is the first collective litigation, or
collective legal mobilization through the courts to challenge an issue affect-
ing a social group,
2
in the south-east Asian state known for being dominated
by a single political party, its social control of activism, lawyers, and civil-
political liberties, and its dearth of courtroom victories for constitutional
rights.
3
How did collective litigation over section 377A (`377A litigation')
emerge and develop? Looking at the political conditions, legal opportunities,
and resources for collective litigation in Singapore, the episode seemed
highly unlikely. Singaporean courts rule conservatively on constitutional
challenges, exhibiting deference to Parliament's legislative intent.
4
Class
action lawsuits are unavailable. Contrary to being a legitimate and accepted
way of doing politics,
5
rights litigation has few allies. Litigants cannot easily
obtain support from `friends of the court', as Singapore follows the tradition
of a court-appointed amicus curiae.
6
Local media are state controlled,
operating with tight conditions on political speech and critique about the
judiciary. Only a handful of lawyers identify as civil rights lawyers; most are
acculturated into a depoliticized profession.
7
Because international donors
434
2 Based on the definition of `strategic litigation' in L. Vanhala, Making Rights A
Reality? Disability Rights Activists and Legal Mobilization (2011).
3 Also, see J. Rajah, Authoritarian Rule of Law: Legislation, Discourse and Legitimacy
in Singapore (2012); G. Silverstein,`Globalization and the Rule of Law: ``A Machine
that Runs of Itself?''' (2003) 1 International J. of Constitutional Law 427. While
political discourse in Singapore has slightly freed up in recent years, and political
competition has intensified since the 2011 elections, much of the criticism about the
PAP-dominated government remains relevant.
4 J.T. Lee, `Rethinking the Presumption of Constitutionality' in Cons titutional
Interpretation in Singapore: Theory and Practice, ed. J.L. Neo (2016). Although
recent con stitutio nal law judg ments cont ain more ser ious disc ussion abo ut
international developments on human rights and foreign judgments that are pro-
liberal rights, courts remain unpersuaded and distinguish Singapore as having unique
social and political conditions. For in-depth analysis of Singapore's constitutional
jurisprudence, see K. Tan, The Constitution of Singapore: A Contextual Analysis
(2015).
5 S. Scheingold, The Politics of Rights: Lawyers, Policy, and Political Change (1974).
6 S.C. Mohan `The Amicus Curiae: Friends No More?' [2010] Singapore J. of Legal
Studies 352.
7 Y. Dezalay and B.G. Garth, Asian Legal Revivals: Lawyers in the Shadow of Empire
(2010); J. Rajah and A.K. Thiruvengadam, `Of Absences, Masks, and Exceptions:
Cause Lawyering in Singapore' (2013) 31 Wisconsin International Law J. 646.
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School
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