LETTER | PPPA must be reviewed following Swatch raid

LETTER | Justice for Sisters (JFS) raises concern over the increasing hostility against LGBT people in Malaysia. The removal of the Pride-themed watches is another form of increasing intolerance and discrimination against LGBT 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.

On May 22, Swatch reported raids on 11 of their outlets by the Home Ministry to confiscate their limited edition Pride collection watches.

A total of 164 watches, worth US$14,000 (RM64,255) were confiscated for violating the Printing, Presses and Publication Act (PPPA). Swatch reportedly will be taking legal action against the authorities over the raid.

Pride is typically celebrated in June by LGBT people globally to commemorate the community’s resistance against discrimination, violence, and oppression. LGBT people are criminalised and shamed into believing that they are wrong, deviant, sinners, and unworthy, among others.

Against this context, Pride is a celebration of LGBT persons to uplift themselves individually and collectively from the shame imposed by society and the state.

Using 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, the ministry banned at least six LGBT-themed books under the PPPA on broad grounds of a 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 book is likely to cause prejudice to public order… after more than seven years of the publication of the book.”

Yet, the Home Ministry has appealed the High Court decision. 

The notion that LGBT 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 marginalised LGBT people. Instead, guided by evidence and lived experiences, courts have affirmed the rights of LGBT people.

In a 2019 decision that decriminalised 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 LGBT-related expression and the denial of their right and ability to live with dignity and as equal members of society, as enshrined in the Federal Constitution. 

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 the 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 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 Federal Constitution.”

We are concerned that the combination of the 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 the call of Muda deputy president Amira Aisya Abdul Aziz for the home minister 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 

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

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

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

Based on JFS’ monitoring and documentation of human rights violations against LGBT persons in Malaysia, LGBT 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 LGBT people or LGBT-related content creators to investigations, persecution, and other forms of victimisation.

The government, however, has yet to address the increasing bias and discrimination against LGBT people. Instead, it further legitimises and normalises 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 home minister 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, the Home Ministry must end all forms of censorship, raids, and restriction to the freedoms and rights of LGBT people. 

Further, we call on the ministry to review the PPPA in accordance with international human rights law.

In Malaysia’s third 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. 

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.