Ripples from landmark transgender ruling may reach other cases, lawyers say

Muslim intellectual Kassim Ahmad (pic) has accused the Federal Territory Islamic Religious Department (Jawi) of acting beyond the powers provided under state Islamic laws and the Federal Constitution when it prosecuted and arrested him. ― Picture by Boo Su-Lyn
Muslim intellectual Kassim Ahmad (pic) has accused the Federal Territory Islamic Religious Department (Jawi) of acting beyond the powers provided under state Islamic laws and the Federal Constitution when it prosecuted and arrested him. ― Picture by Boo Su-Lyn

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KUALA LUMPUR, Nov 13 ― A critical Court of Appeal decision upholding the supremacy of the Federal Constitution could influence the outcome of cases such as that involving “Allah”where constitutional rights have been abrogated by lesser laws, legal experts said.

Constitutional lawyer Nizam Bashir said the appellate court judgment in the case of three Negri Sembilan transgenders last week has unambiguously articulated the tenet that all laws ― including Shariah laws ― are subject to the Federal Constitution, based on Article 4 of the document that states it to be the overriding law of the country.

While the decision validates a superior precedent on the topic, its appearance now could serve to remind others of the principle that has been sidelined in recent court cases.

“It will be interesting to see how this judgment impacts on various constitutional challenges presently still playing out in the courts, for example the Borders book ban, the decision to prosecute Kassim Ahmad in the Shariah High Court and the right to use the phrase ‘Allah’,” Nizam told Malay Mail Online via email.

The constitutional right to freedom of religion is at the heart of the Sabah Sidang Injil Borneo and Jill Ireland cases, in which a Sabah church and Sarawakian Christian are fighting for the right to use Christian materials containing the Arabic word for God, “Allah.”

In the case of Borders Books, the Federal Court is set to decide on a challenge against a Selangor state legislation that bans religious publications deemed to be un-Islamic as the law arguably violates the right to freedom of speech and expression.

Muslim intellectual Kassim Ahmad, who was charged at the Shariah High Court last March with insulting Islam, has accused the Federal Territory Islamic Religious Department (Jawi) of acting beyond the powers provided under state Islamic laws and the Federal Constitution when it prosecuted and arrested him.

Nizam said Article 74 of the Federal Constitution states that all laws, whether passed by Parliament or by the state, must not violate provisions within the constitution, noting that  those that fail this measure are vulnerable to being contested in court.

“Simply put, if a law purports to infringe (on) a fundamental liberty, it would be unconstitutional and this is what the Court of Appeal held when s. 66 of the Shariah Criminal Offences (Negeri Sembilan) 1992 was challenged, that it amongst others infringed the right to freedom of expression,” said the lawyer.

The Court of Appeal, Malaysia’s second-highest court, ruled last Friday that Section 66 of the Negri Sembilan Shariah Criminal Enactment 1992, which prohibits Muslim men from cross-dressing, was unconstitutional and void.

According to the court, the Islamic state law violates several fundamental liberties, notably the constitutional rights to liberty, equality, freedom of movement and freedom of expression.

The appellate court had labelled the law discriminatory as it fails to recognise men diagnosed with gender identity disorder ― in which male sufferers identify themselves as women ― and ruled in favour of three Muslim transgenders ― Muhamad Juzaili Mohd Khamis, Shukur Jani and Wan Fairol Wan Ismail ― who were convicted of cross-dressing under the Negri Sembilan shariah law.

In its written summary judgment, the Court of Appeal said Shariah laws cannot violate Malaysians’ fundamental freedoms that are protected in the Federal Constitution as legislations contradicting the constitution are deemed void.

Civil liberties lawyer Syahredzan Johan said the impact of the judgment on other cases would depend on how the courts viewed these.

“The principles enumerated are not new. They are in line with the Supreme Court case of Che Omar Che Soh,” Syahredzan told Malay Mail Online. The Supreme Court has since been renamed as the Federal Court of Malaysia.

He said the 1988 landmark ruling had decided that all laws ― whether federal or state, Shariah or civil ― must be in line with the secular Federal Constitution.

“When it comes to the constitutionality of a particular legislation, the Shariah courts have no jurisdiction to make a determination. It rightly must go to the civil court,” said Syahredzan.

Constitutional lawyer New Sin Yew said laws that violate the Federal Constitution must be struck down.

“Everything is subservient to the Federal Constitution,” New told Malay Mail Online.

“Fundamental liberties are enshrined in Part II of the Federal Constitution. So of course, shariah laws cannot derogate fundamental liberties like any other laws unless provided for by the Federal Constitution,” he added.

New also said the Court of Appeal judgment in the transgender case was groundbreaking for deciding that treating minorities like everyone else could be discriminatory, noting that the court had ruled that the three transgenders should not be treated like “normal” Muslims under the Negri Sembilan state law as they suffered from gender identity disorder.

“It’s really a watershed moment for those who are marginalised, like people with disabilities LGBT (lesbian, gay, bisexual and transgender),” he said.  

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