REXKL Halloween raid warrants a review of joint raids & discriminatory laws

As we approach General Election 15 (GE15), we are once again seeing political LGBTphobia at the centre of Malaysian politicking and as an election tactic. Justice for Sisters (JFS) and the undersigned organizations are deeply concerned by the raid on a Halloween-themed party on the night of Saturday, 29 October, conducted by Royal Malaysia Police (PDRM), Federal Territories Islamic Religious Department (JAWI), and Kuala Lumpur City Hall (DBKL). 

At least 24 people were arrested on various grounds at the Halloween party, including: 

  • 18 gender-diverse persons who are under investigation for male person posing as a woman; 
  • 2 persons who are under investigation for encouraging vice;  
  • 2 persons who are under investigation for indecent acts in public place; 
  • 2 persons who tested positive for THC, a compound found in marijuana or cannabis. 

The raid took place against a backdrop of increasing anti-LGBT sentiments as political campaigning for GE15 picks up momentum. With the Malaysian Islamic Party (PAS) accusing Pakatan Harapan of ‘normalising LGBT’ during its 22 months in government, and Amanah retorting with defensive and reactionary statements as well as legal actions, LGBT people are trapped in the middle of this political mud-slinging, and increasingly face precarity over their safety, well-being, and future in this country. Many of our surveys continue to show trends of self-censorship in relation to self-expression, thoughts and association with LGBT issues; migration; fear of discrimination and violation of privacy; and a widening institutional trust deficit. 

We, the undersigned, civil society organisations observe a number of concerning issues, which must be immediately addressed by SUHAKAM and the incoming government:

  1. The human rights impact of joint raids involving state Islamic Departments 

Through its monitoring of joint raids involving State Islamic Departments, JFS has observed high levels of human rights impacts through these raids. This includes the violations of privacy, equality, and freedom of expression, where Muslim persons are especially victimised by the law and excessive state intervention into people’s private lives is legitimised. 

The criminalisation of LGBT persons and non-recognition of trans and gender-diverse persons under state Syariah and federal laws increase their vulnerability to trumped-up charges, arbitrary arrest and detention, inhumane and degrading treatment, and violence with impunity by state actors during these joint raids. Documentation shows that transgender and gender-diverse persons experience humiliating and degrading treatment at the hands of authorities when they are segregated based on gender as per identification card and when urine tests are conducted. Their right to privacy is violated when their name and personal details are read aloud. 

Moreover, there is a disparity in the enjoyment and protection of human rights on the basis of religion, where Muslims are more vulnerable to additional and punitive measures under the state Syariah Criminal Offences Act or state enactments. 

During joint raids, attendees are typically segregated based on religion and gender as per identification card. Muslim persons are often singled out and face additional charges under the Syariah Criminal Offences Act or Enactments, typically over personal acts that are not criminal in nature. For example, during the recent Halloween raid, Muslim gender-diverse persons and those who appeared to express themselves through gender-fluid or non-stereotypical expressions were singled out and faced additional criminal charges. This raises concerns over the hyper-criminalization and regulation of gender expressions and identities of Muslim persons in Malaysia. 

In Malaysia’s 2018 CEDAW review of the status of women’s rights, the CEDAW Committee expressed concern “.. about the existence of a parallel legal system of civil law and multiple versions of syariah law, which have not been harmonised in accordance with the Convention, as previously recommended by the Committee…, which leads to a gap in the protection of women against discrimination, including on the basis of their religion.” This legal discrepancy applies not just to Malaysian women, but also to trans and gender-diverse persons who also face similar vulnerability to violations by state authorities and lack of protections from harm, as evidenced most recently by the Halloween-party joint raid.

  1. The use of discriminatory and vague laws in restricting Freedom of Expression and Assembly, safeguarded under the Federal Constitution and international human rights law  

At least four Federal and state syariah laws, which disproportionately affect marginalized populations, were used in the Halloween raid: 

  • Male person posing as a woman [Section 28 of the Syariah Criminal Offences (Federal Territories) Act]
  • Indecent acts in public place [Section 29 of the Syariah Criminal Offences (Federal Territories) Act]
  • Encouraging vice [Section 35 of the Syariah Criminal Offences (Federal Territories) Act]
  • Self-administration or consumption of substance [Section 15 (1) (a) of the Dangerous Drugs Act]

Section 28 of the Syariah Criminal Offences (Federal Territories) Act criminalises “any male person who poses as a woman or wears women’s attire for immoral purposes…” (Section 28). The term “immoral purposes” is not defined, and therefore acts as a catch-all term that enables arbitrary and discriminatory enforcement in the larger effort to criminalise LGBT personhood. 

Section 28 inherently discriminates against persons based on gender. Specifically, it restricts freedom of expression in relation to gender and reinforces gender stereotypes and gender binary roles by dictating how a person can express their gender identity and themselves. It is important to note that in the context of the Halloween party, the clothes worn by those arrested may not reflect their gender expression or actual or perceived sexual orientation and gender identity. Their clothes may express and manifest a character, idea, or the person’s own unique creative expression of themselves in relation to the theme of the party.  

In 2014, the Court of Appeal found a similar provision, Section 66 of the Negeri Sembilan Syariah Criminal Offences Enactment unconstitutional, as it violated personal liberties, equality before the law, prohibition of gender based discrimination, freedom of expression and freedom of movement guaranteed under the FC. The decision was set aside by the Federal Court in 2015 on technicality in an appeal by the state of Negeri Sembilan. However, in a different case in 2017, the panel of Federal Court judges on that case opined that the Federal Court had made an error in its decision on Section 66. 

Similarly, the use of Section 29 or ‘indecent act in public places’ and Section 35 or “encouraging vice” against four others are not only vague and arbitrary, but their use also violate freedom of expression, assembly, and association under Article 10 of the Federal Constitution; and right to privacy and right to live with dignity under Article 5. The terms ‘indecent act’ and  ‘vice’ are also not defined under the Syariah Criminal Offences Act. Based on JFS monitoring and documentation, “encouraging vice” has been used especially against organisers of events that are perceived to be attended by transgender or LGBT persons. 

Meanwhile, Section 15 (1) (a) of the Dangerous Drugs Act, which criminalises self-administration or consumption of substances, must be reviewed in line with international human rights law. 

It is important to note the criminalisation of drug use and possession for personal consumption as well as unnecessary urine tests at raids result in adverse harms, abuse of power, and violations of human rights. At the same time, raids often use drugs as pretext to allow for abuse of power and moral policing. People who test positive are often subjected to arbitrary arrest and detention, trumped-up charges, coercive medical treatment, and humiliating and degrading treatment. Although in many instances those who test positive use such drugs for recreational reasons, they end up being remanded or facing harsh sentences as a cautionary tale, despite posing no threat to others because of their recreational drug use. 

In June 2022, UN special rapporteurs and experts called on the international community to bring an end to the so-called “war on drugs” and promote drug policies that are firmly anchored in human rights. 

In line with the principle of harm reduction and human rights framework, the police must take measures towards reducing harms, including harms that result from criminalization and drug policies that do not respect human rights. 

  1. Unaddressed LGBTphobia in the media and social media 

Consistent with our previous media monitoring, the standards of media in relation to reporting on raids and LGBT-related issues remain poor, especially among Malay-language media. We observe the continued use of derogatory and sensational terms in articles and headlines, including pondan, wanita jadian, lelaki berperwatakan perempuan. Golongan pelbagai gender or golongan rencam gender (gender-diverse people or persons) is an affirming and respectful term for gender diverse persons. There are some good practices among English-language media, which featured views and voices questioning the raid and human rights violations caused by the raid. For example, the Rakyat Post and Malay Mail both published articles that featured concerns by online users, civil society organisations, and political entities. 

The comments by online users show an alarming state of LGBTphobia in Malaysia, raising concerns over discrimination and harassment against those who attended the Halloween party on the basis of their gender expression, actual or perceived sexual orientation, or gender identity. 

Recommendations

We recommend SUHAKAM work with other entities on the following actions:

  • In the spirit of upholding the rule of law and equality before the law (Article 8, FC), it is critical for SUHAKAM and the incoming government to immediately review joint raids involving the state Islamic Departments given their extensive and discriminatory human rights impacts. Even in the context where raids are conducted in full compliance of police Standard Operating Procedures (SOP), the involvement of state Islamic Departments in joint raids legitimises moral policing, abuse of power, and victimisation of Muslims under the law. 
  • Undertake a comprehensive human rights impact assessment of the Syariah Criminal Offences Act and Enactments and a review of Act and Enactments’ compatibility with the Federal Constitution and international human rights law
  • Together with Malaysian AIDS Council and other human rights groups, work with PDRM on measures towards decriminalising drug use and ensuring human rights-based drug policies
  • Together with the Election Commission and the Malaysian Communications and Multimedia Commission (MCMC), engage with LGBT human rights groups to monitor, respond and encourage reporting of LGBT related discrimination online, offline and in the media. 

By Justice for Sisters 

Endorsed by:

  1. Kemban Kolektif
  2. Legal Dignity
  3. JEJAKA
  4. KRYSS Network 
  5. PLUHO, People Like Us Hang Out!
  6. Transmen of Malaysia
  7. A Spec Malaysia
  8. People Like Us Support Ourselves (PLUsos)
  9. Women’s March Malaysia (WMMY)
  10. Amnesty International Malaysia 
  11. SEED Malaysia 
  12. International Women’s Rights Action Watch Asia Pacific (IWRAW AP)  
  13. Centre for Independent Journalism (CIJ)
  14. Queer Malaysian Indians (QMI)
  15. Queer Lapis
  16. Sisters in Islam (SIS)
  17. L-INC Foundation
  18. ASEAN SOGIE Caucus 
  19. Empower Malaysia
  20. ILGA Asia
  21. Freedom Film Network (FFN)

Appendix: Human rights articles 

Right Federal Constitution (FC)Universal Declaration of Human Rights (UDHR)ASEAN Human Rights Declaration (AHRD)
Equality Article 8 (1) All persons are equal before the law and entitled to the equal protection of the law.

Article 1 All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
Article 7 All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.
Article 3. Every person has the right of recognition everywhere as a person before the law.  Every person is equal before the law. Every person is entitled without discrimination to equal protection of the law.
Privacy The Federal Court case of Sivarasa v Badan Peguam Malaysia & Anor[1] held that the right to personal liberty under Article 5(1) of the Federal Constitution includes the right to privacy.Article 12No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.Article 21. Every person has the right to be free from arbitrary interference with his or her privacy, family, home or correspondence including personal data, or to attacks upon that person’s honour and reputation. Every person has the right to the protection of the law against such interference or attacks.
Freedom of expression 10. (1) Subject to Clauses (2), (3) and (4)—(a) every citizen has the right to freedom of speech and expression; (b) all citizens have the right to assemble peaceably and without arms;Article 19 Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.Article 23 Every person has the right to freedom of opinion and expression, including freedom to hold opinions without interference and to seek, receive and impart information, whether orally, in writing or through any other medium of that person’s choice.
Freedom of assembly Same as above Article 20 (1) Everyone has the right to freedom of peaceful assembly and association.Article 24.Every person has the right to freedom of peaceful assembly.

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