KUALA LUMPUR, Nov 8 — A Muslim lawyers’ group believes the Court of Appeal erred yesterday in ruling a Negri Sembilan Shariah law criminalising cross-dressing as unconstitutional, even as human rights activists celebrate the groundbreaking decision.
The Muslim Lawyers Association of Malaysia (PPMM) said that while it respected the court’s decision, it argued that the three-judge panel had veered from past precedents on matters regarding Islam, which it added could erode the identity and framework of the country’s supreme law.
“The Court of Appeal decision also failed to take into account the norms of Malay Muslim society that are central to the national identity.
“Islam and Malays are a part of the basic structures that shape the Federal Constitution. Destroying this basic structure will cause the identity and framework of the Federal Constitution to break,” it said in a statement today.
To support its argument, the group cited this year’s Federal Court judgment on the controversial “Allah” challenge by the Catholic Church against a Home Ministry order prohibiting it from publishing the Arabic word for God in its weekly paper and an older but no less controversial case, Sulaiman Takrib v the Terengganu Islamic Council.
It noted in the second case that the Federal Court had ruled the state legislative assembly is empowered to criminalise anything that violates Islamic religious directives, including “moral issues for Muslims”, as provided under Section 66 of the state Shariah law.
Section 66 outlaws any Muslim man who “wears a woman attire and poses as a woman”, with the punishment of a fine not exceeding RM1,000 or jail of not more than six months or both.
“Upholding the morals is a part of the Islamic religious directive and men dressing like women are prohibited in Islam,” PPMM said.
While Islamic laws are decided by each separate state, they bear a striking resemblance to each other, including the disputed Section 66 that was used by the Negri Sembilan Islamic council to crack down on a group of Muslim men who identified themselves as women and dressed accordingly in that fashion.
“Based on the two Federal Court judgments, PPMM is of the view that the Court of Appeal had erred in its judgment yesterday. In fact, it is also not in line with several provisions in the Federal Constitution,” it said, and cited Article 3 which states that Islam is the religion of the federation.
PPMM also pointed to a Fourth Schedule in the constitution in which the Yang Di-Pertuan Agong as the head of Islam has an obligation to uphold Islam, and which it said, was a duty that extended to the country’s administration as well as its judiciary.
“Minority discrimination should not arise because fundamental liberties as stated in the Federal Constitution are not something without limits. That right is not absolute,” the group insisted, and reminded the court that it must interpret the constitutional provisions holistically in order to uphold the law.
PPMM also called on the Negri Sembilan state to appeal against the Court of Appeal decision, and volunteered its services to that goal.
It warned the state that it had a duty to defend Islam as the judgment would otherwise set a precedent for all other state Islamic authorities.
The Court of Appeal panel chaired by Datuk Mohd Hishamuddin Mohd Yunus yesterday ruled that the Negri Sembilan Shariah law contravened constitutional provisions that guarantee personal liberty, equality, freedom of movement, and freedom of expression.
It stressed that while the state is empowered to enact laws even involving the matters of Islam, it must not contravene the Federal Constitution that is the supreme law of the land.
