KUALA LUMPUR, Dec 18 — The Federal Court erred in allowing the prosecution to submit a preliminary objection in the Negri Sembilan transgender case as the latter had ample opportunity to voice its objections at the lower courts but did not do so, a retired Court of Appeal judge said today.

In allowing the preliminary objections to be heard in the apex court, it subsequently led to the overturning of a Court of Appeal ruling that had deemed as unconstitutional the Negri Sembilan Shariah state enactment that bans cross-dressing.

“It’s a very disturbing decision and with due respect, I think the Federal Court got it wrong,” said retired Court of Appeal judge Datuk Mohd Hishamudin Mohd Yunus, who had sat on the bench that made the verdict against the Negri Sembilan enactment, at a forum organised by the Bar Council today titled “Whither the Federal Constitution — Do Fundamental and Minority Rights Matter?”

“You never raised it in the High Court, you’ve never raised it before the Court of Appeal and when you applied for leave before us, you could have raised this issue but you didn’t,” he added.

Mohd Hishamudin said the prosecution had only raised the issue of whether Section 66 was breaching several articles in the Federal Constitution and as such, they should have been “confined” to just that.

A three-member Court of Appeal bench unanimously made a landmark decision on November 7, 2014, that found Section 66 of the Negri Sembilan Shariah Criminal Enactment 1992 to be invalid and unconstitutional, noting that the provision contravened fundamental liberties, including personal liberty, equality, freedom of movement and freedom of expression.

Section 66 makes it illegal for Muslim men to dress in women’s clothes, punishable with a fine not exceeding RM1,000 or jail of not more than six months or both.

The Federal Court, however, overturned the Court of Appeal verdict last October, citing improper procedures used to commence the lawsuit that was mounted by three transwomen against the Negri Sembilan state enactment.

Tan Sri Shafee Abdullah, who represented the Barisan Nasional (BN) Negri Sembilan state government, argued in August that the Court of Appeal, and the Seremban High Court before it, had erred when they entertained the transwomen’s application for judicial review, saying the Federal Constitution does not state they have the jurisdiction to do so.

He had also argued that the transwomen had used improper channels to file their bid.