Court upholds ban on Seksualiti Merdeka

The Kuala Lumpur High Court has today refused to grant the Seksualiti Merdeka organisers' application for a judicial review against the police order stopping the event.

The decision was made by Justice Rohana Yusuf in chambers as the court upheld a preliminary objection raised by the Attorney-General’s Chambers, representing the police and government.

Justice Rohana ruled that police are empowered to stop an event to ensure the security of the country as 28 police reports had been lodged against the event by Christian, Muslim and Buddhist groups.

Seksualiti Merdeka organisers said they will be appealing today’s decision as the event had been held for three consecutive years without any problems.

Festival organiser Pang Khee Teik (left) said he was "stunned" by the court's endorsement of that argument and planned to appeal.

"We must keep fighting for equal rights," Pang told AFP.

"When the police's arbitrary powers cannot be reviewed in court, we are allowing the police to get away with abuse of power," he said.

Pang vowed to continue to fight for the rights of homosexuals,
transgenders and bisexuals.

"We want to remind them that they too have family members and
friends who can be helped by the work that Seksualiti Merdeka does," he said.

The ruling underscores a pattern of persistent persecution of homosexuals in Malaysia, said Phil Robertson, Asia deputy director at Human Rights Watch.

"We are concerned over the discrimination and the intimidation of the lesbian, gay, bisexual, and transgender community. The rights of this entire community are under threat," he said.

"(Malaysia) is using national security as a catch-all phrase to justify any human rights abuse, and that is unacceptable."

The Seksualiti Merdeka event was supposed to be organised from Nov 9 to 13 last year.

Police deputy inspector-general Khalid Abu Bakar had ordered the event to be stopped. Following this, the organisers named Khalid, the police and government as the respondents.

Police have right to ban the event

Justice Rohana ruled that under section 27A the police are empowered to stop activities which are likely to cause disturbance of peace, or detrimental to the interests of Malaysia’s security.

“Clearly under this provision the police are empowered to do what they did. It is very clearly stated in the (media) reports that this matter is pending the investigation by the police pursuant to Section 298A of the Penal Code as well as Section 27 A of the Police Act.

“An investigation process is not amenable to judicial review because it is not a decision in that sense. If all police investigations are susceptible to judicial review then the whole police machinery will come to a standstill, and it would jeopardise the security of the nation,” she said.

Furthermore, Justice Rohana ruled that the organisers’ application was academic.

She said the organisers sought to review the police decision two days after the programme was launched.

“From the bare facts, I am inclined to agree with the objection raised by the senior federal counsel that the application and relief sought are academic,” she said.

“Since the event is over, the relief sought are academic,” she said, citing several case laws.

The judge noted that the lawyers for Seksualiti Merdeka contended that the decision to stop this event may encompass future events.

“In my considered view this is merely speculative because the exercise of power by police under section 27A was based on police reports lodged against the programme,” she ruled.

This order is an order to stop a particular programme, the judge said, and it is difficult to imagine how future activities or programmes would be run.

‘Not about the banning of a society or book’

“This is not about the banning of a society or of a book or the like. It is stopping an event from proceeding resulting from complaints by religious bodies and police reports lodged,” she said.

“Premised on all these reasons, in my view the objections raised by the attorney-general are valid and should be upheld. I therefore dismiss the leave application,” Justice Rohana ruled.

In judicial review applications, leave (permission) should be obtained to ensure it is not a frivolous or vexatious application.

Senior federal counsel Nor Hisham Ismail appeared for the respondents while Honey Tan appeared for Seksualiti Merdeka.

Tan (right) said they will appeal the decision, as they felt the issue of the ban decision is not academic as it can always be reviewed by the court.

“Such a draconian use of power by the police renders the constitutional liberties of citizens, like freedom of speech and expression, illusory and makes a mockery of constitutional guarantees.”

“The court’s reluctance in affording clarification of such a power only deprives the organisers and others of access to justice,” she said.

Seksualiti Merdeka, in a statement, expressed disappointment with today’s decision of not reviewing the police decision.

“We believe the court overlooked a number of fundamental points with respect to our constitutional rights like freedom of speech and expression and right to assemble and form associations.

“Considering this event was held without untoward incidents or objections in the past, we find the decision to be a denial of our human rights and a form of discrimination.”

The organisers said today’s decision also affects Malaysia’s position as a member of the United Nations Human Rights Council and its commitment to protecting human rights, especially on sexual orientation and gender.

“The decision also runs contrary to the recent call for moderation by the Najib Abdul Razak administration, as it demonstrates how threats, intimidation and fear have more value over rational discussion and lawful behaviour.”

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