LOONG Dien Min is a 2023-24 Gates Cambridge Scholar interested in maritime Asia’s legal and normative regimes of sexuality. Having graduated with a MPhil in World History from the University of Cambridge, she studies the nexus between law and sexual norms in the most intellectually, culturally and linguistically vibrant region of the world—Southeast Asia. She is part of Imagined Malaysia, a Malaysia-based non-profit organisation which aspires to cultivate a transnational appreciation of Southeast Asia’s history. Since 2022, she has worked as a research assistant for senior academics, emerging scholars, and PhD students in Malaysia and the United Kingdom. Her interest in bridging academia and civil society has also motivated her involvement in advocacy efforts along the themes of historical literacy, inter-religious dialogue, and child rights, especially in the EU-funded #TanpaPerkauman public education project in 2021. Her research is funded by the Gates Cambridge Trust and the St Catharine’s College Tunku Abdul Rahman Project Grant.
For decades, conservative state discourses in Malaysia have portrayed homosexuality as a ‘Western’ import.[1] In 2020, former Malaysian Prime Minister Muhyiddin Yassin framed queer individuals as a threat to Islam, supported by “foreign influences”.[2] To counter such political rhetoric, scholars and activists contended that homophobia is instead a product of the colonial past.[3] They viewed colonial-era anti-sodomy laws as responsible for the “historical construction of such homophobia” and argued “British influence prolonged criminalisation [of homosexual conduct] after independence”.[4] Yet, examining law as a top-down instrument of social reorganisation has only taken us so far. Spotlighting colonial officials and legislative bodies overlooks how colonial legal frameworks were accessed, utilised, and bypassed across colonial societies.[5] This piece suggests staying attentive to the backstory behind successful convictions under Section 377, a section under the Penal Code that criminalised unnatural offences.
Malaya—a loose political entity made up of directly and indirectly ruled territories—is a microcosm of legal enforcement across the British empire. In Malaya, enforcement of laws against same-sex sexual offences was troubled by personal acrimonies, everyday rivalries, and petty yet occasionally violent attacks. Inequitable networks of social acquaintanceships caused the working class in Malaya to deploy such laws for reasons unrelated to sexual regulation. Their engagements with the legal landscape were neither radical, spectacular, or overtly defiant, nor did they necessarily entail outcomes that were favourable to them. While ordinary men and women were not always successful in pursuing their interests, their engagements constructed and reconstructed the law’s nature.[6] In this fashion, the very act of using (and misusing) the law had greater power than legislation.
For Malaya’s working migrant population who hailed from East and South Asia, the law against unnatural offences proved useful for taking reprisals, especially in power-laden spaces like prisons. On 22 September 1894, the Kuala Lumpur Court House heard a case wherein an Indian Muslim prison warden, Badar Khan, and a Chinese prisoner, Liow Ong were both charged of an unnatural offence.[7] In the Chief Magistrate of Selangor’s report, the prisoner was quoted to have said that “he allowed its commission in order to bring about a conviction of the warden”.[8]
Where relationships were strained by power imbalances, a false accusation of an unnatural offence may have been useful to escape precarious labour contracts. In 1898, a young coolie who worked in a sugar plantation at Parit Buntar, Krian, Perak, filed a complaint to Dr. Clarke (the district surgeon of Krian) and Mr. Just (the Acting District Magistrate of Matang) at the Bagan Serai hospital. To punish one coolie for his laziness, his Chinese Tauke (boss) forced two other coolies to “commit an unnatural offence” upon the coolie, during which he was “compelled to witness” such “punishment”.[9] During the hearing, “fatal inconsistencies” in all four coolies’ testimonies were revealed—they were kept in custody for 19 days and during which none of their statements had been properly taken down. The Senior Magistrate of Perak ultimately dismissed the Tauke’s charges and instead sentenced each of the coolies to three months rigorous imprisonment for fabricating evidence.[10] Whether the coolies saw this as an opportunity to have their “contracts cancelled” or a way to conceal their “peculiar relationship” is impossible to ascertain.[11] But the involvement of the four coolies as a collective, regardless of their ends, insinuates that this was a case of intrigue.
These plantation coolies were not the only ones; security officers did the same. On 9 July 1902, as Lob Singh, a Sikh constable employed by the Tanjong Pagar Dock Company, was arrested by Saram Singh, a corporal in the Tanjong Pagar Police for having committed an unnatural offence.[12] He was acquitted very quickly. But he soon brought an action against Saram Singh for wrongful arrest. He claimed that the arrest was made “because [Lob Singh] had some time before accused [Saram Singh] of breaking open his box”, something that was perhaps deeply private and personal to the corporal. The Supreme Court Chief Justice dismissed the action but with a $200 fine, holding that the arrest was “effected by an authorised police constable under circumstances which appeared to show that an offence had been committed”.[13] Although Lob Singh’s arrest was done with intent, the charges would not have been possible if the law had been framed clearer, and its enforcement done responsibly. Under such circumstances, accusations of an unnatural offence were not only tools to exact retribution, but also plots to escape lawful punishment for petty crime.
As early as 1931, British Residents and police commissioners were aware that making acts in private an offence would entail a “grave danger of abuse”, because such charges under the law were easily made but difficult to rebut.[14] Indeed, in Singapore on 10 November 1932, a Bengali watchman became victim to a Chinese man’s false accusations. Around 2 a.m. that night, a young Chinese man asked to share a bench with a Bengali watchman, who was on duty at a petrol station. The watchman fell asleep. And when he awoke, he found that the Chinese man and the seven dollars in his coat went missing. The police soon arrested the Chinese, whose pockets yielded a total of eight dollars. The Chinese resorted to accuse the Bengali watchman of committing an unnatural offence, a claim which was not corroborated by medical examination.[15] The Chinese man’s near-intuitive accusation of unnatural sex illustrated his keen awareness of the law’s loopholes.
The intimate yet predatory encounters between working class males in Malaya came together to change the telos of the law. In this regard, the law failed as a pedagogical and disciplinary instrument to inscribe colonial visions of normative sexuality onto the mobile social fabric of Malaya. And while scholars and activists yearn to uphold the rights of sexual minorities in Malaysia and other postcolonial nations, this piece suggests re-evaluating colonialism’s reach vis-à-vis sexual norms in past British colonies. Rather than take court convictions as evidence of the triumph of imperial sexual regimes, the collective experiences of Section 377 among Malaya’s migrant commonfolk suggest looking into how the law’s nature was transformed, as everyday historical actors accessed, bypassed, and politicised it.
Cite this article: Loong Dien Min, “A Phenomenological View of Anti-Sodomy Laws during Colonial Rule.”, in: History | Sexuality | Law, 09/09/2024, https://hsl.hypotheses.org/2263, (accessed on: Datum).
[1] But this is by no means unique to Singapore and Malaysia. Similar rhetoric has been invoked in India, Uganda, Ghana, Burundi, just to name a few. I use quotation marks for ‘Western’ to mark the relationality of this adjective, which is a vague umbrella term used by Malaysian politicians when referring to North America, Western Europe and Australia.
[2] Soo Wern Jun. “At Meeting with Muslim Missionaries, PM Muhyiddin Urges against Extremism to Defend Islam.” Malay Mail, September 19, 2020. https://www.malaymail.com/news/malaysia/2020/09/19/at-meeting-with-muslim-missionaries-pm-muhyiddin-urges-against-extremism-to/1904684.
[3] Some scholars have also resorted to show the prevalence and widespread tolerance of ‘homosexuality’ in pre-colonial times, anchoring their contemporary stigmatisation in colonial rule. See for example, Ruth Vanita, ed., Same-Sex Love in India (London: Penguin Books, 2008).
[4] Enze Han and Joseph P. A. O’Mahoney, British Colonialism and the Criminalization of Homosexuality: Queens, Crime and Empire (New York: Routledge; Taylor & Francis Group, 2018), 105-6.
[5] Eleanor Newbigin, Leigh Denault, and Rohit De, ‘Introduction: Personal Law, Identity Politics and Civil Society in Colonial South Asia,’ The Indian Economic & Social History Review 46, no. 1 (January 2009), 1–4.
[6] This idea resonates with historian Arunima Datta’s idea of ‘situational agency’, which accounts for the agency of historical subjects in their actions, instead of the implications of such actions. See Arunima Datta, “‘Immorality’, Nationalism and the Colonial State in British Malaya: Indian ‘Coolie’ Women’s Intimate Lives as Ideological Battleground,” Women’s History Review 25, no. 4 (July 3, 2016), 584–601.
[7] British subject Awaiting Trial Reports the case of Badar Khan charged with the commission of an unnatural offence, Courts 4746/1894, Arkib Negara Malaysia (Malaysian National Archives), Kuala Lumpur, Malaysia.
[8] British subject Awaiting Trial Reports the case of Badar Khan charged with the commission of an unnatural offence.
[9] ‘Perak News. Communicated.’, Penang Patriot, 15 June 1898, 3; ‘Local and General’, Penang Patriot, 20 July 1898, 2; ‘Parit Buntar News’, Penang Patriot, 14 September 1898, 3. ‘Tauke’ means ‘boss’ in Hokkien (头家, thâu-ke).
[10] ‘Strange Charge at Parit Buntar’, The Singapore Free Press and Mercantile Advertiser (Weekly), 22 September 1898, 5.
[11] Both terms ‘contracts cancelled’ and ‘peculiar relationship were used in the newspaper cutting: ‘Strange Charge at Parit Buntar’, The Singapore Free Press and Mercantile Advertiser (Weekly), 22 September 1898, 5.
[12] ‘Alleged Wrongful Arrest’, The Singapore Free Press and Mercantile Advertiser (Weekly), 28 August 1902, 133.
[13] ‘Alleged Wrongful Arrest’. Italics mine.
[14] Addition of a new Section to the Penal Code relating to punishment for the commission by a male person of any act of gross indecency with any male person, Sel: Sec: G 1065/1931, Arkib Negara Malaysia (Malaysian National Archives), Kuala Lumpur, Malaysia.
[15] Untitled, The Singapore Free Press and Mercantile Advertiser, 10 November 1932, 8.
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hsl (September 9, 2024). A Phenomenological View of Anti-Sodomy Laws during Colonial Rule. History | Sexuality | Law. Retrieved October 14, 2024 from https://doi.org/10.58079/129p5