Apex court slams door on five Islamic councils wanting in on transgender case appeal

Supporters of transgender rights group Justice for Sisters are seen outside the Court of Appeal after the court declares Section 66 of the Negri Sembilan Shariah law unconstitutional in this file picture. ― Picture by Saw Siow Feng
Supporters of transgender rights group Justice for Sisters are seen outside the Court of Appeal after the court declares Section 66 of the Negri Sembilan Shariah law unconstitutional in this file picture. ― Picture by Saw Siow Feng

PUTRAJAYA, Jan 27 — The Federal Court today rejected applications by five state religious councils to appear as interveners in Negri Sembilan’s appeal against a declaration that its anti-crossdressing Shariah law is unconstitutional.

The states religious councils rejected were from Selangor, Perak, Penang, Johor and the Federal Territories. Only the Negri Sembilan religious council’s application was accepted.

The other councils were allowed, however, to appear as amicus curiae or “friends of the court” — independent parties who may raise their points in court.

The Negri Sembilan Islamic Religious Council (Mains) argued that it should appear in the case as three of the respondents in the Court of Appeal case are its employees.

The Johor council contended that the councils are representing the Malay rulers who give assent to Shariah laws, as they act as advisers in Islamic affairs.

However, lawyer Aston Paiva, who led the respondents’ law team, argued that the case is a purely secular matter as the law was passed by the state legislative council.

Lawyer Tan Sri Muhammad Shafee Abdullah represented the applicants, which also included the state’s Islamic Religious Affairs Department (JHEAINS), JHEAINS’ director, its chief enforcer, and the state’s chief Shariah prosecutor.

Bar Council also appeared as amicus curiae, while organisations which held watching brief included the Malaysian Centre for Constitutionalism and Human Rights, Article 19, Human Rights Watch, International Commission of Jurists, and Umno.

Representatives of embassies and high commissions from the US, UK, Germany, Canada and the European Union were also present in court as observers.

The Court of Appeal had ruled in November 7 that Section 66 of the Negri Sembilan Shariah Criminal Enactment 1992 prohibiting cross-dressing by Muslims was unconstitutional and void.

The Federal Court today allowed an application by the Negri Sembilan government and four other applicants to challenge the Court of Appeal’s ruling.

The five-man bench led by Justice Tan Sri Md Raus Shariff said, however, that the court will only consider whether Section 66 of the Negri Sembilan Shariah Criminal Enactment 1992, which criminalises cross-dressing, contravenes Articles 5(1), 8(1), 8(2), 9(2) and 10(1)(a) of the Federal Constitution.