Summary: International Law and the Rights of Gay Men in Former British Colonies: Comparing Hong Kong and Singapore

Author: Carole J Petersen
Summarised by Jiht Wong​​

The author has compared the rights of gay men in Hong Kong and Singapore, two former British colonies of similar legal and cultural traditions. It is noted that despite their similarities, gay men enjoy more legal space in Hong Kong than in Singapore. That said, much has yet to be achieved in both jurisdictions when it comes to legal protection of sexual minorities against discrimination.  

Decriminalisation of Same-Sex Sexual Conduct in Hong Kong

Male-to-male sexual conduct was illegal under the old Offences against the Person Ordinance. In the 1990s, the colonial government proposed to incorporate the International Covenant on Civil and Political Rights (ICCPR) into domestic law by enacting the Hong Kong Bill of Rights Ordinance (BORO). Stressing the importance to comply with the ICCPR, gay sex was partially decriminalised in private by two consenting adults (21 or older) under the Crimes (Amendment) Bill. Nonetheless, the law still prohibited anal sexual intercourse and “gross indecency” between men otherwise when in private or when one party is under 21.  It was until 2006, in Leung TC Willam Roy v Secretary for Justice, the aforesaid statutory prohibitions were struck down for violating Article 25 of the Basic Law and Article 22 of BORO. Similarly, in Secretary for Justice v Yau Yuk Lung, the prohibition of “buggery with another man otherwise than in private” was held unconstitutional on the same grounds.  

Failure to Decriminalise Same-Sex Sexual Conduct in Singapore

In Singapore, section 377A of the Penal Code prohibits all acts of sexual intimacy between men. Despite the “Repeal 377A Campaign” in 2006 which urged the government to review the law, the government insisted not to repeal the section based on popular opinion.  Section 377A was also challenged judicially, but the results were entirely different from those of the Hong Kong courts. Singapore’s Court of Appeal defined the test for constitutionality so narrowly that it abdicated any burden to consider the constitutionality of the provision. The author suggests that Singapore’s position could be attributed to its illiberal democracy which requires activists to adopt an incremental approach in carrying out the movement. Another possible reason could be that as Singapore’s government is unelected, it is unwilling to spend political capital to advance the legal status of minorities.  

Discrimination in the Private Sector

The author notes that Hong Kong and Singapore are more similar when it comes to discrimination in the private sector, as both jurisdictions lack legal prohibition of differential treatment based on sexual orientation.  
In Hong Kong, no anti-discrimination legislation concerning sexual orientation has been enacted. Despite an attempt in 1994 to introduce the Equal Opportunities Bill (EOB) which intended to prohibit discrimination on various grounds, the government opposed the bill based on a lack of public support. Nonetheless, the author has observed that the Hong Kong Equal Opportunities Commission and some legislators have acknowledged that sexuality and sexual identity discrimination is common in Hong Kong and have started to support LGBT individuals.   
The author notes the possibility of a campaign for a comprehensive anti-discrimination law about sexual orientation and gender in Singapore. In particular, the author suggests that international human rights monitoring bodies could be influential in urging Singapore to alter its domestic law which infringes on LGBT rights. As the aforesaid section 377A has drawn critiques from the international community, it is believed that international commentary could help the government persuade the public that the law needs to be changed.  

Conclusion

The examination of Hong Kong and Singapore laws demonstrates how two jurisdictions of similar cultural and legal tradition could respond differently to LGBT issues. While advancing LGBT rights would ultimately require enacting local legislations, the author is still happy to see that international human rights monitoring bodies are increasingly aware of the LGBT community.