The government is opposing judicial review of the ban on the grounds that because the festival’s scheduled dates are past the case is rendered moot. But without a court review of the legality of the ban, the status and future of the annual festival will be uncertain, Human Rights Watch said.
“The Malaysian government should drop its objection to judicial review of the ban that has left the Sexual Diversity festival in legal limbo,” said Graeme Reid, director of the lesbian, gay, bisexual, and transgender (LGBT) rights program at Human Rights Watch. “The police ban looked like blatant discrimination in 2011 and looks that way now. A court ruling could end such unlawful practices in the future.”
The fourth annual Sexual Diversity festival was scheduled to take place in Kuala Lumpur from November 9 to 13, 2011, when it was stopped by a police-imposed ban. At the time, Human Rights Watch called for Prime Minister Najib Razak to rescind the ban immediately. In their court case, members of the Seksualiti Merdeka organizing committee allege that the deputy inspector-general of police, Datuk Seri Khalid Abu Bakar, acted illegally when he banned all functions and events relating to Seksualiti Merdeka on November 3, 2011. They assert that they were not given an opportunity to be heard before Khalid announced the ban, and that the ban infringes on the constitutional rights guaranteed to all Malaysians.
The festival, which had been held since 2008 without interference from government authorities, was to consist of talks, workshops, literary events, stage performances, and an art exhibition focusing on “the human rights of people of diverse sexual orientations and gender identities.” However, the police announced on November 3 that the festival constituted a “threat to public order.” The authorities failed to provide any evidence to justify that determination.
Malaysia’s criminal law encourages discrimination against Malaysia’s LGBT population and has been used to prosecute sexual acts between consenting adults. The government has been unwilling to repeal article 377B of the penal code, which criminalizes consensual “carnal intercourse against the order of nature,” or to replace article 377C on non-consensual sexual acts with a modern, gender-neutral law on rape.
The archaic, colonial-era law came under renewed scrutiny and public debate after Malaysian opposition leader Anwar Ibrahim was charged for the second time with consensual sodomy. He was acquitted by a Kuala Lumpur court on January 9, 2012.
The Universal Declaration of Human Rights affirms that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set forth in the declaration, without distinction of any kind, including the rights to freedom of expression and association. The Malaysian government’s unjustified banning of the festival violated the principle of non-discrimination and freedom of expression and association, Human Rights Watch said.
Malaysia is member of the United Nations Human Rights Council. When it sought election to the council in 2010, the Malaysian government made a commitment to “uphold the highest standards” of human rights and to “fully cooperate” with the council. Banning the festival in November 2011 contradicted the council’s June 2011 resolution on “Human Rights, Sexual Orientation and Gender Identity,” Human Rights Watch said. The resolution expresses “grave concern at acts of violence and discrimination, in all regions of the world, committed against individuals because of their sexual orientation and gender identity.”
“The judicial review sought by Seksualiti Merdeka is a critical step in ensuring that the government does not use its power to arbitrarily ban peaceful public events,” Reid said. “This case should be of concern to all Malaysians committed to defending their rights under the Malaysian constitution and international human rights law.”