CCPR/C/119/D/2593/2015
The Board concluded that the author would not be exposed to a real risk of persecution if
returned to Malaysia.
2.7
On 25 February 2015, the author requested the reopening of her case based on the
fact that there was a case pending against her before the sharia court in Melaka, where she
was being charged with posing as a woman and wearing women’s clothing, which could
entail a fine or imprisonment of up to six months. 6 The author had obtained a copy of the
undated court documents through her family. On 10 March 2015, the Board assessed the
new evidence, but rejected the author’s request for the reopening of her case, arguing that
the there was no new information of significance. According to the Danish Immigration
Service’s translation of the sharia court documents, the case against the author appeared to
be under investigation, pending its transmission to the prosecutor’s office. In the heading of
the letter sent by the sharia court to the author’s sister, there appears the word “closed”. The
Board noted that it was not certain whether the author would be found guilty as no
proceedings had taken place. On 25 March 2015, the author renewed her request for the
reopening of her case based on an alleged mistake by the Board in translating a word as
“closed” instead of “confidential”. On 30 March 2015, the Board rejected the author’s
request, arguing that the revised translation did not alter the fact that neither the Department
of Islamic Affairs nor anyone else had followed up on the charges against the author since
April 2012, and that, since that date, the author had been able to travel legally in and out of
the country without facing any difficulties until her departure in January 2014, and that she
had not faced any further detention or abuse.
The complaint
3.1
The author claims that her forced return to Malaysia would violate article 7 of the
Covenant as she would risk being submitted to sexual violence by the Malaysian police.
The author alleges that, as a transgender woman, she is part of an extremely vulnerable
minority group. The seriousness of the risk that she faces is based on her gender identity
and appearance, which are not in accordance with sharia law and for which she was
subjected to sexual violence and discrimination by the Malaysian authorities in the past.
3.2 The author also claims a violation of article 7, read in conjunction with article 18 (1),
of the Covenant, because her conversion from Islam to Hinduism, which is not permitted by
sharia law in Malaysia, puts her at risk of imprisonment upon her return to Malaysia.
3.3 The author also claims a violation of article 7, read in conjunction with articles 17 (1)
and 26, of the Covenant because, in the context of the case pending against her before the
sharia court, her gender identity and appearance are being made public, thereby violating
her right to privacy. Additionally, in the light of her national identity documents, if
sentenced to imprisonment, she would be held together with men, thereby exposing her to
further abuse.
State party’s observations on admissibility and the merits
4.1
In its observations dated 1 October 2015, the State party argues that the
communication is inadmissible or, alternatively, without merit. The State party also
describes the nature and legal basis of proceedings before the Danish Refugee Appeals
Board.7
4.2
Regarding the facts of the case, the State party provides an account of the author’s
statements before the Danish authorities. The author stated that she had not officially
converted to Hinduism because it was not permitted by Islam and she would have faced
problems with the Islamic authorities. In one of the interviews, she stated that the last time
that she had been detained by police officers and forced to perform oral sex had been in
December 2012, whereas in a later interview, she stated that she had been last detained and
6
7
The author provided the Board with a list of Islamic laws that criminalize gender identity in Malaysia.
According to this list, cross-dressing in the State of Melaka may entail a sanction of up to six months’
imprisonment.
See, in this regard, communication No. 2379/2014, Hussein Ahmed v. Denmark, Views adopted on 7
July 2016, paras. 4.1-4.3.
3