MARCH 17 ― The recent Shariah court case on Malaysian transwoman and entrepreneur Nur Sajat Kamaruzzaman has put Malaysia in a limelight amongst international human right groups when she failed to turn up at a Shariah High Court hearing. The trial was to address her "misconduct” for dressing in traditional Malay Muslim women’s attire at an event as part of her Islamic charity work at a religious school in 2018. Her action is considered an insult to the sanctity of Islam, and she was charged in accordance with Section 10 (a) of the Syariah Crimes (State of Selangor) Enactment 1995. If convicted, she could face a sentence of up to RM5,000 or imprisonment of up to three years, or both.

Constitutional vs Shariah law

Malaysia maintains two parallel justice systems ― one is the secular justice system based upon laws gazetted by parliament, entrenched by the federal constitution, and the other is the state-governed Sharia (or Shariah) law. The basis of Shariah jurisdiction is mainly to govern matters pertaining to marriage, inheritance and other personal affairs of the Muslim population. While her right as a transwoman might be protected under the Articles 5, 8 and 9 of the Federal Constitution of Malaysia, which protects a person from gender-based discrimination as well as protecting freedom of expression and movement, being a Muslim, Sajat is also subject to Shariah law.

The recent Shariah court case on Malaysian transwoman and entrepreneur Nur Sajat Kamaruzzaman has put Malaysia in a limelight amongst international human right groups when she failed to turn up at a Shariah High Court hearing. — Picture via Instagram/Nur Sajat

A provision of the Criminal Jurisdiction Act of 1965, commonly known as "RUU 355” or "Act 355”, established the Shariah court system to handle moral crimes not already covered by the country’s criminal laws. This provision often outweighs the constitutional rights of a Muslim when it comes to religious issues. This contentious dispute is well illustrated in a famous 2014 case [1] where the High Court of Appeal invalidated an Islamic state law (Section 66 of Negri Sembilan state) criminalising the public behaviour and appearance of transwomen. The High Court of Appeal ruled that the Malaysian constitution’s fundamental rights trumped state-legislated Islamic law. This decision, however, was short lived; the precedent was overturned in 2015 by the Federal Court, which upheld Shariah laws prohibiting "a male person posing as a woman”. This present decision seems to reflect Article 121 of the federal constitution, which establishes that the High Court, the Court of Appeal and the Federal Court have no jurisdiction "in respect of any matter within the jurisdiction of the Shariah courts”.

Nevertheless, as confirmed by a judicial precedent [2],  Article 121(1A) does not limit the jurisdiction of the High Court to interpret any state law enacted for the administration of Islamic law. Contrary to popular belief, Article 121(1A) of the constitution does not establish the Shariah courts as a parallel system to the civil courts. If anything, it was introduced to prevent conflict of jurisdiction between the civil and the Shariah courts [3].

Having said this, when an issue arises as to whether a state law infringes on the Federal List, Article 121(1A) cannot be an argument for overthrowing the jurisdiction of the civil courts. In such a situation the question to be asked is whether such state law as Section 66 or Section 10 (a) of the Shariah Crimes enactments are constitutional in the first place, which is a matter for the Federal Court to decide. Nonetheless, the Federal Court decision was made without addressing hierarchy of law arguments about the previous decision that placed the Federal Constitution above Shariah Law ― that is, whether the Appellate Court was right in ruling that Section 66 violated the federal constitution. The Federal Court decision was mainly founded on the grounds that Section 66 is consistent with the teachings of Islam. This dichotomy between the public and private aspects of Islamic law, when overlooked, has given rise to difficulties. As a result, transgender people are subject to criminalization and non-recognition of their gender identity and expression throughout the country.

The history of Section 66 and the 1982 transgender fatwa

Section 66 was passed in 1992 by the Negri Sembilan state legislature based on a 1982 fatwa that criminalizes men who dress in women’s clothes or who pose as women in public. Similar Shariah state laws can be found in all 13 states and three federal territories that criminalise "any male person…wear[ing] a woman’s attire and pos[ing] as a woman”. Still, to what extent does Section 66 really reflect the Prophetic tradition of Islam in relation to transgender people? Historically, transgender women were culturally accepted in Malaysian society until the 1982 and were allowed to change their gender marker after having sex reassignment surgery. In fact, a then Deputy Mufti had declared a marriage between a transwoman and a cisgender man as valid on the ground that Islam is a progressive religion that believes in scientific evidence and details and only narrow-minded people would be parochial not to believe in science  (Berita Harian, 1975) [4].

The first 1981 transgender fatwa was issued in Egypt’s Al-Azhar as a request by the Malaysian religious authority and later become the basis of 1982 transgender fatwa. A second fatwa was latter re-issued in 1988 by a different mufti (Tantawi) within the same authority and has declared gender reassignment surgery acceptable under Islamic law. The second fatwa explained the issue in more detail, allowing a born transwoman to have a transition, provided that the gender dysphoria is pre-determined by a psychiatrist/doctor, based on the fact that there is no direct reference to a prohibition on changing one’s gender within the Quran [5]. Indeed, if Muslims are only allowed to follow the conservative argument that "God has created everything as it is”, and "God does not make mistakes”, then people who are born with a cleft palate and lip should not be treated, as this too would mean "interfering with God’s perfect creation”. Tantawi’s fawta further explained that being transgender is a natural occurrence and the Qur’ān unequivocally acknowledges the existence of transgender people (Qur’an, 42: 49–50). While there is no obvious mention of mukhannath, mukhannith or khuntha in the Qur’ān, this holy book clearly recognizes that there are some people who are neither male nor female, or are in between, and/or could also be "non-procreative” [عَقِيم] (Surah 42 Ash-Shuraa, verse 49-50). The question is then, should Malaysian religious authorities keep the 1982 fatwa updated in conjunction with an updated, more trans-inclusive fatwa?

Related to this, the presence of effeminate men (mukhannath) during the time of the Prophet is well-documented. Al-Tabari (1978) [6] took it as an example that the Prophet did not forbid a particular mukhanath, Hit, from entering the women’s quarters until he heard the servant giving a description of the women’s bodies in great detail. Hit was later prohibited from the house because he had breached the trust of the Prophet, but not because of his effeminate identity. Nonetheless, the narrative shows that during the Prophet’s period, the mukhanath were allowed to serve in houses as domestic helpers, and Muslim women did not observe the practice of wearing the hijab (veil) in front of them, in conjunction with the Qur’ān 24:31. For centuries Muslim tradition had allowed effeminate men and eunuchs into women’s spaces provided they had no sexual interest in women or had been castrated. They had played prominent roles in society such as marriage brokers, performers, and guardians of harems and sacred places. This practice continued into the Umayyad, Abbasid and Mughal periods. Hence, many major Islamic scholars argued that the Hadith actually refer to cross-dressers who want to deceitfully gain access to women’s spaces.

So how and why transgender people today are treated in an unsympathetic manner? Part of this has related to Wahhabi influence on the global level. Means (2009) [7] describes how the change from Sufi Islam to Wahhabism emerged in relation to "the massive campaign mounted by Saudi Arabia to propagate and promote the religious and doctrinal principles of Sunni Islam as practiced in Arabia”. (4–5). Despite the denial of Wahhabism’s infiltration, in practice Malaysia does subscribe to some Wahhabi’s beliefs, such as ensuring the suppression of Sufism and Shia, and prohibition of many of Malaysia’s local cultural practices such as Main Puteri, Mak Yong, Manora, and Ulek Mayang. Hence, as part of this "Islamisation” process of the judicial system, Clause 1A of Article 121 was added to the constitution by Act A704 in 1988 to explain the exclusion of civil jurisdiction over Shariah matters.

Where do we go from here?

Islam as a religion is closely integrated with the sociocultural life and beliefs of majority Malay- Muslims. They believes that Islam cannot be separated from their daily life activities. Although a fatwa is not legally binding, it is a ruling on a point of Islamic law given by a recognized authority. In order for the Malay-Muslim community to be intellectually progressive, Hussien Alatas (1979) [8] has articulated a "Manusia Baharu” approach to overcome the radical interpretation of Islam that breeds a chauvinist, parochial and exclusivist attitude. In his approach, Islamic discourse should respond to the threats of bebalism and extremist illiberal thinking, corruption, abuse of power and inhumanity rather than mainstreaming the trivial (transgender) issue as the biggest threat to Islam. Furthermore, many Malays today show their ignorance of the Islamic tradition of knowledge in simply declaring fellow Muslims as deviants for having diverse opinions about how Islam is understood. Indeed, those differences of opinion, particularly on the issue of khilafiyyah (different interpretations) and ijtihadiyyah (logical reasoning), is a godsend for Muslims. This diversity should be celebrated rather than condemning, insulting or labelling people who disagree with the fatwas.

In the end, our judicial system is a reflection of our society and what the authorities have ordained or gazetted as the law. It is up to the religious authorities, and us as a society, to uphold any version of Islam that we want to practise. Perhaps the relevant questions are; if the Prophet never ordered that mukkhanath be "cured” or punished for their identity (read: identity, not sin), and there is no evidence in the Qur’ān to say so, does the current Shariah law in Malaysia that forbids transgender identity have the status of a divine order? If so; is our version of Islam that excludes gender-variant people in Malaysia today more ascetic and authentic than medieval and pre-colonial Islam?

Notes:

1. Muhamad Juzaili b. Mohd Khamis et al. v. State Government of Negeri Sembilan et al., (2014) Civil Appeal No. N-01-498-11/2012 (Malaysia).

2. Zainal Abidin bin Hamid @ S Maniam & Ors v Kerajaan Malaysia & Ors [2009] 6 MLJ 863.

3. Abdul Kahar bin Ahmad v Kerajaan Negeri Selangor (Kerajaan Malaysia, intervener) & Anor [2008] 3 MLJ 617.

 4. Berita Harian, November 7, 1975, Page 1. Newspaper archive. Link : https://eresources.nlb.gov.sg/newspapers/Digitised/Article/beritaharian19751107-1.2.4?fbclid=IwAR2tVjSs7ioZsEQz0EYtM1ggV7MxcaV_rgAk11MoXgEGYDVoHCBKGhE-ny

5. The full fatwa can be accessed at: http://hdl.handle.net/2027/spo.4750978.0002.302

6. Al-Tabari, I.J. (1978). Jami’al-Bayān fī Tafsīr al-Qur”ān. Dār al-Fikr. [Google Scholar]

7. Means, Gordon. 2009. Political Islam in Southeast Asia. Boulder: Lynne Rienner Publishers.

8. Alatas, H.S. (1979). Kita dengan Islam: Tumbuh tiada berbuah. Pustaka Nasional Pte Ltd: Singapore.

* Aisya A. Zaharin currently serves as one of the Board Directors of Forcibly Displaced People Network (FDPN) while doing her PhD on "Negotiating Asian values within the press social responsibility in Malaysian journalistic practices: a critical ethnography”. She also serves in Australian Multicultural Council ― AGMC, as a committee member. Her research includes extensive field in the area of political science and history, decolonisation to LGBTQI+ and Islam with a focus on improving social inequality, promoting cultural relativism and social responsibility concepts.