Justice for Sisters (JFS) raises concern over the increasing hostility against LGBTIQ people in Malaysia.

The removal of the Pride-themed watches is another form of increasing intolerance and discrimination against LGBTIQ people in Malaysia by state and non-state actors alike. This dangerous trend goes hand in hand with the increasing conservatism and extremism in Malaysia. One cannot be addressed without the other. 

Ministry of Home Affairs’ raids of Swatch outlets nationwide on 13 and 14 May. 

On 22 May, Swatch reported raids on 11 of their outlets by the Ministry of Home Affairs (MOHA) to confiscate their limited edition Pride collection watches. A total of 164 watches, worth US$14,000 or RM64,255 were confiscated for violating the Printing, Presses and Publication Act (PPPA). Swatch reportedly will be taking legal action against Malaysia’s discriminatory actions. 

Pride is typically celebrated in June by LGBTIQ people globally to commemorate LGBTIQ resistance against discrimination, violence and oppression. LGBTIQ people are criminalized and shamed into believing that they are wrong, deviant, sinners, and unworthy, among others. Against this context, Pride is a celebration of LGBTIQ persons to uplift themselves individually and collectively from the shame imposed by society and the state.

The trend in the use of PPPA against LGBT expression 

Increasingly, we see a concerning trend in the use of the PPPA in restricting LGBT-related expressions. Between 2020 and May 2023, MOHA banned at least 6 LGBT-themed books under the PPPA on broad grounds of so-called threat to public morality, order and security. The Kuala Lumpur High Court in 2022 quashed the ban on Gay is Ok! as the Ministry ‘failed to justify the ban on the ground that the look is likely to cause prejudice to public order … after more than 7 years of the publication of the book.” Yet, MOHA has appealed the High Court decision. 

The notion that LGBTQ people are a threat to public morality, order and security stems from a misunderstanding of human diversity, majoritarian views, and intolerance of ‘others’. In many LGBT related-cases globally, courts have firmly rejected the use of public morality to discriminate and marginalize LGBTIQ people. Instead, guided by evidence and lived experiences, courts have affirmed the rights of LGBTIQ people. In a 2019 decision that decriminalized LGBTQ people in Bostwana, the judge noted that “There’s nothing reasonable in discriminating … Human dignity is harmed when minority groups are marginalised.”

Under international human rights law, restrictions of rights must be justified and satisfy the test of legality, necessity and proportionality. Article 29 of the Universal Declaration of Human Rights (UDHR) allows limitations of rights solely to secure due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. 

In this case, the confiscation of the watches has resulted in a further restriction of LGBTIQ-related expression and denial of their right and ability to live with dignity and as equal members of society, as enshrined in the Federal Constitution (FC). 

Review & repeal PPPA immediately 

In tandem with that, we also question PPPA’s wide definition of publications, which includes “ anything which by its form, shape or in any manner is capable of suggesting words or ideas” as well as the ‘absolute discretion’ conferred to the Minister to ‘prohibit any publication contains any article, caricature, photograph, report, notes, writing, sound, music, statement or any other thing which is in any manner prejudicial to or likely to be prejudicial to public order, morality, security’ under Section 7(1). 

Section 7(1) is inconsistent with the principles of rule of law, public laws, and natural justice, including procedural fairness and the right to be heard, safeguarded under Articles 5 and 8 of the FC. These principles, among others, require public decision-making bodies to provide reasons for their decision, ideally, consistent with international human rights law. 

In the Hong Leong Equipment Sdn Bhd v Liew Fook Chua decision, the Court of Appeal affirmed that the Articles  5(1) and 8(1) of the Federal Constitution ‘require all state action to be fair and just: and they strike at arbitrariness even in the discharge of administrative functions’. 

Meanwhile, in the High Court decision, which lifted the ban on Gay is Ok!, citing a 2014 ZI Publication decision, the judge noted that “a reasoned decision in a matter where freedom of expression and/or where fundamental liberties are being stifled must be given. Otherwise, it will violate principles of procedural fairness guaranteed by Article 8 of the FC.”

We are concerned that the combination of wide-definition of publication and the absolute discretion of  the Minister will continue the arbitrary restriction of LGBT expressions with impunity. 

While the Home Minister has reportedly instructed the enforcement department to halt further raids, the legality of the raid remains a question. Under Section 7(1), the Minister is expected to make an order regarding the prohibition of the watches. The orders are typically published as a Gazette on the Attorney General Chambers’ (AGC) website. However, JFS has not found the gazette on the AGC’s website. 

To that end, we echo MUDA’s Deputy President’s call for the Minister of Home Affairs to explain the legality, necessity and proportionality of the raid and confiscation of the watches, which resulted in the restriction of freedom of expression and equality.

We also reiterate ARTICLE 19’s critique on the PPPA that it ‘fail(s) to comply with the requirement under international human rights law that restrictions on expression be formulated with specific precision to allow individuals to regulate their behaviour —the requirement of legality—and be narrowly tailored to address a legitimate state objective—the requirement of legitimacy.” As such, the PPPA should be reviewed and repealed. 

Reacting to public complaints 

MOHA reportedly carried out the nationwide raids in response to public complaints. Their response raised several questions 

• What constitutes public complaints? Does MOHA consider viral posts and being tagged on social media posts by online users as public complaints? 

• What are MOHA’s investigating processes? Does MOHA have a process to identify bias-motivated complaints from genuine complaints? 

Based on Justice for Sisters’ monitoring and documentation of human rights violations against LGBTIQ persons in Malaysia, LGBTIQ people or content are vulnerable to false reporting or ‘complaints’ via tagging of government agencies on social media platforms. Government agencies, typically, without assessing the elements of bias of the complaint, subject LGBTQ people or LGBT-related content creators to investigations, persecution and among other forms of victimization. The government, however, has yet to address the increasing bias and discrimination against LGBTIQ people. Instead, it further legitimizes and normalizes it through discriminatory responses. 

We urge Suhakam to monitor this trend and invest in training with government agencies to ensure that their complaint mechanisms and investigating processes are bias-free and consistent with human rights standards. 

Closing 

In summary, we reiterate our call for the Minister of Home Affairs to explain the raid and confiscation of watches, resulting in the restriction of freedom of expression, in accordance with principles of legality, necessity and proportionality. Concurrently, MOHA must end all forms of censorship, raids, and restriction of freedoms and rights of LGBTIQ people. 

In Malaysia’s 3rd Universal Periodic Review (UPR), Malaysia accepted a recommendation by Georgia to “Accelerate consultations within the Government in order to review the following legislation: the Sedition Act, the Printing Presses and Publications Act, the Prevention of Crime Act, the Special Offence Act, the Peaceful Assembly Act and the Prevention of Terrorism Act”.

Lastly, we recommend SUHAKAM invest in training with complaint mechanisms by government agencies to minimise harm to marginalised groups due to bias-motivated complaints. 

Definition of publication  “publication” includes— (a)  a document, newspaper, book and periodical; (b)  all written or printed matter and everything whether of a nature familiar to written or printed matter or not containing any visible representation; (c)  anything which by its form, shape or in any manner is capable of suggesting words or ideas; and (d) an audio recording; Section 7(1) of PPPA 7. (1) If the Minister is satisfied that any publication contains any article, caricature, photograph, report, notes, writing, sound, music, statement or any other thing which is in any manner prejudicial to or likely to be prejudicial to public order, morality, security, or which is likely to alarm public opinion, or which is or is likely to be contrary to any law or is otherwise prejudicial to or is likely to be prejudicial to public interest or national interest, he may in his absolute discretion by order published in the Gazette prohibit, either absolutely or subject to such conditions as may be prescribed, the printing, importation, production, reproduction, publishing, sale, issue, circulation, distribution or possession of that publication and future publications of the publisher concerned.