November 8, 2011

Y.A.B. Dato’ Sri Hj. Mohd. Najib Bin Tun Haji Abdul Razak
Prime Minister
Office of the Prime Minister
Main Block, Perdana Putra Building
Federal Government Administrative Centre
62502 Putrajaya, Malaysia

Via facsimile: +60 3 8888 3444

Re: Banning of Seksualiti Merdeka Festival

Dear Prime Minister Najib,

Human Rights Watch writes to express our serious concerns about the Malaysian government’s abrupt banning of the fourth annual Seksualiti Merdeka festival, which was scheduled to take place in Kuala Lumpur from November 9-13, 2011. The banning of this festival violates basic rights to freedom of association and expression guaranteed by international human rights law and the Malaysian constitution. Statements by police authorities, backed by senior government officials such as the minister of home affairs, further reveal disturbing, discriminatory, and homophobic attitudes by the authorities. We urge you to immediately and unconditionally reverse the banning of the festival and publicly pledge your government to ensure all Malaysians equal protection of the law against any discrimination.

We note that Seksualiti Merdeka has held its annual festival since 2008 without incident or interference from government authorities. The organizers of the festival have consistently reiterated that this year’s event follows the model of previous years, being composed solely of a series of forums, talks, workshops, book launches, stage performances, and an art exhibition focusing on “the human rights of people of diverse sexual orientations and gender identities.”

On November 3, Sungai Besi township police announced a ban on the festival on the grounds that it constitutes a “threat to public order” under section 298A of the Penal Code. Yet no evidence whatsoever was presented to justify this decision, which relies on a vague and overbroad legal provision to seek to justify discrimination apparently on the basis of sexual orientation.

These actions contradict your own proclaimed vision for Malaysia. You stated in an article in the Sydney Morning Herald on October 27 that Malaysia is a “progressive, liberal nation” and “a multi-cultural, multi-ethnic society that has a long and proud history of social harmony and welcoming outsiders.” Yet your government’s actions against Seksualiti Merdeka treat members of Malaysia’s lesbian, gay, bisexual and transsexual (LGBT) community as outsiders without the same rights as other Malaysians.

The government’s double standard against Seksualiti Merdeka is evident in the police’s response to demonstrations by anti-LGBT organizations. The police arbitrarily applied the Police Act (article 27 A(1)(c)) to break up a peaceful event by Seksualiti Merdeka supporters on the evening of November 3 at the Annexe Gallery, and ban the festival events. Yet when the organization Perkasa publicly demonstrated on November 4 at the National Mosque and issued veiled calls for violence against the LGBT community – Perkasa Youth chief Irwan Fahmi Ideris reportedly vowed to stop gay and lesbian culture to “the last drop of blood” – the Malaysian police force did nothing. Such actions raise concerns that the government will not act to protect the LGBT community should their safety be at risk.

Seksualiti Merdeka organizers say that they have been subjected to a renewed barrage of harassment and threats of violence by persons using mobile phones/SMS and social media since the police announced the ban. We urge you to order the police to fully investigate these threats and prosecute those responsible to the fullest extent of the law. Similarly, the government should respond to any incitement to violence or to hostility amounting to criminal harassment or intimidation against the LGBT community with prompt investigations and robust prosecutions.

Discrimination against Malaysia’s LGBT community is encouraged by Malaysia’s criminal law which has been used to prosecute sexual acts between consenting adults. The government refuses to consider repeal of 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.

In June 2011 the United Nations Human Rights Council (HRC) adopted a resolution on Human Rights, Sexual Orientation and Gender Identity (introduced by South Africa, and regretfully opposed by Malaysia) that expressed “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.” This resolution builds on the Universal Declaration of Human Rights affirming 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 that Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status. The HRC resolution also is in line with General Assembly resolution 60/251, which states that the Human Rights Council shall be responsible for promoting universal respect for the protection of all human rights and fundamental freedoms for all, without distinction of any kind and in fair and equal manner.

The banning of the Seksualiti Merdeka festival is a flagrant example of the kind of discrimination that the Human Rights Council is determined to end. It raises serious questions about the commitments Malaysia made in seeking re-election to the Council and the government’s pledges to “uphold the highest standards” of human rights and to “fully cooperate” with the council. Should the ban on Seksualiti Merdeka not be reversed, the matter can be expected to be taken up by countries at the Human Rights Council in the future.

Finally, the Malaysian government should ensure the safety of human rights defenders such as former Bar Council president Ambiga Sreenevasan, who has faced severe verbal attacks since it was revealed that she was scheduled to preside over the opening session of Seksualiti Merdeka.  Perkasa and other groups have labeled Ambiga as an “antichrist,” impugned her patriotism, called for her Malaysian citizenship to be stripped, and demanded she be detained in preventive detention under the Internal Security Act.

By its banning of Seksualiti Merdeka, the government has seriously harmed Malaysia’s claims to being a country that celebrates unity in diversity. You can reverse that blatant act of discrimination by immediately ending the ban, and by investigating and prosecuting threats against the LGBT community. And by acting promptly to abolish the country’s discriminatory laws, genuine progress can be made in promoting a Malaysia that respects the rights of all Malaysians.

We look forward to learning what steps you have taken to address these concerns.

Sincerely yours,

Phil Robertson
Deputy Director, Asia Division

Graeme Reid
Director, Lesbian, Gay, Bisexual, and Transgender Rights Program

Cc:
Y.A.B. Tan Sri Dato’ Haji Muhyiddin Bin Mohd. Yassin, Deputy Prime Minister
Y.B. Dato’ Seri Hishammuddin Bin Tun Hussein, Minister of Home Affairs
Y.B. Senator Dato’ Seri Shahrizat Abdul Jalil, Minister of Women, Family, and Community Development