KUALA LUMPUR, Nov 12 — An appellate court’s ruling that the Federal Constitution overrides Shariah laws in a landmark case involving Muslim transgenders will open the doors for homosexuals to marry, former Chief Justice Tun Abdul Hamid Mohamad has claimed.
Abdul Hamid alleged that the decision that held the Federal Constitution to be the supreme law of the land would lead Islamic laws to be increasingly questioned and possibly invalidated, including those that permit Muslim polygamy, outlaw adultery and sodomy, and others.
“In fact, the judgment paves the way for same-sex marriage. It appears what I am worried about is beginning to happen,” he was quoted as saying in report be national news agency Bernama today.
In Malaysia, same-sex unions are not permitted under either civil law or Shariah law.
The outspoken former chief justice added that the landmark decision was flawed as it failed to consider the constitutional provisions that recognise offences against Islamic teachings.
In an email sent to Bernama, he also criticised the decision by the Court of Appeal to refer to precedents in the US and Indian Supreme Courts, which he said were countries fundamentally dissimilar to Malaysia.
“Their constitutions have no provisions on Islam. They have different values. The judges appear to be too influenced by the West’s definition of human rights,” he said.
The result was a decision on the fundamental freedoms guaranteed by the Federal Constitution that was overly liberal, Abdul Hamid added.
“When Islamic law is measured against liberal, Western-style human rights and when it can be challenged on the grounds that it is unreasonable to judges, including a non-Muslim, then Islamic law will always be at risk of being nullified.”
Yesterday, the Court of Appeal released a written judgment to say that state Islamic laws cannot violate Malaysians’ fundamental freedoms that are protected in the Federal Constitution, as legislations contradicting the constitution are deemed void.
A three-judge panel of Malaysia’s second highest court ruled that Section 66 of the Negri Sembilan Shariah Criminal Enactment 1992, which prohibits Muslim men from cross-dressing, was unconstitutional and void as the state law contravened a slew of fundamental liberties, which are personal liberty, equality, freedom of movement and freedom of expression.
The appellate court ruled last Friday in favour of three Muslim transgender men — Muhamad Juzaili Mohd Khamis, Shukur Jani and Wan Fairol Wan Ismail — who were convicted of cross-dressing under the Negri Sembilan shariah law that punishes Muslim men who wear women’s attire with a fine not exceeding RM1,000, or jail of not more than six months, or both.
The court panel — comprising Justices Datuk Mohd Hishamudin Yunus, Datuk Aziah Ali and Datuk Lim Yee Lan — had said the law was discriminatory as it failed to recognise men diagnosed with gender identity disorder (GID).
Muslim-majority Malaysia vehemently objects to the perceived rise in non-heterosexual activities, which it deems to be an assault against Islam together with growing calls for greater civil liberties.
The issue is muddied by the intermingling of politics and religion in a country where the latter has become a major platform from which to appeal for support.
