Opinion

REXKL Halloween raid warrants review of discriminatory laws – Justice for Sisters 

Civil society organisations raise concerns over rise in anti-LGBT sentiment as general election looms

Updated 1 year ago · Published on 01 Nov 2022 3:39PM

REXKL Halloween raid warrants review of discriminatory laws – Justice for Sisters 
Justice for Sisters and other civil society organisations have expressed concerns over LGBTphobia following the raid on a Halloween-themed party last Saturday night, conducted by Royal Malaysia Police, Federal Territories Islamic Religious Department, and Kuala Lumpur City Hall. – Twitter pic, November 1, 2022

AS we approach the 15th general election (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 organisations are deeply concerned by the raid on a Halloween-themed party last Saturday night, conducted by Royal Malaysia Police (PDRM), Federal Territories Islamic Religious Department, and Kuala Lumpur City Hall. 

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 a 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 sentiment as political campaigning for GE15 picks up momentum. 

With 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 that Suhakam and the incoming government must immediately address:

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 shariah 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 the authorities when they are segregated based on gender as per identification cards 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 Syariah Criminal Offences Act or similar state enactments. 

During joint raids, attendees are typically segregated based on religion and gender as per their identification cards. Muslim persons are often singled out and face additional charges under those laws, 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-criminalisation and regulation of gender expressions and identities of Muslim persons in Malaysia. 

In Malaysia’s 2018 Convention on the Elimination of all Forms of Discrimination Against Women (Cedaw) review of the status of women’s rights, the responsible 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 face similar vulnerability to violations by state authorities and lack of protection from harm, as evidenced most recently by the Halloween-party joint raid.

Use of discriminatory and vague laws  

At least four federal and state shariah laws, which disproportionately affect marginalised 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 Negri 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 federal constitution. 

The decision was set aside by the Federal Court in 2015 on a technicality in an appeal by the state of Negri Sembilan. However, in a different case in 2017, the panel of Federal Court judges 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 violates 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 harm, abuse of power, and violations of human rights. 

At the same time, raids often use drugs as a 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 tested 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 harm, including those that result from criminalisation and drug policies that do not respect human rights. 

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. 

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:

First, in the spirit of upholding the rule of law and equality before the law (Article 8 of the federal constitution), 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 with police standard operating procedures, the involvement of state Islamic Departments in joint raids legitimises moral policing, abuse of power, and victimisation of Muslims under the law. 

Second, undertake a comprehensive human rights impact assessment of the Syariah Criminal Offences Act and enactments and a review of the act and enactments’ compatibility with the federal constitution and international human rights law. 

Third, 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

Fourth, together with the Election Commission and the Malaysian Communications and Multimedia Commission, engage with LGBT human rights groups to monitor, respond and encourage reporting of LGBT-related discrimination online, offline and in the media. – The Vibes, November 1, 2022

This statement is endorsed by:

Kemban Kolektif

Legal Dignity

Jejaka

KRYSS Network 

Pluho (People Like Us Hang Out!)

Transmen of Malaysia

A Spec Malaysia

People Like Us Support Ourselves (PLUsos)

Women’s March Malaysia (WMMY)

Amnesty International Malaysia 

SEED Malaysia 

Women’s Rights Action Watch Asia Pacific (IWRAW)  

Centre for Independent Journalism (CIJ)

Queer Malaysian Indians (QMI)

Queer Lapis

Sisters in Islam (SIS)

L-INC Foundation

Asean SOGIE Caucus 

Empower Malaysia

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