Transgenders’ bid to challenge cross-dressing law improper and premature, apex court told

Shafee (left) argued that the Court of Appeal, and the Seremban High Court before it, had erred when it entertained the transgenders’ application for judicial review. — Picture by Yusof Mat Isa
Shafee (left) argued that the Court of Appeal, and the Seremban High Court before it, had erred when it entertained the transgenders’ application for judicial review. — Picture by Yusof Mat Isa

PUTRAJAYA, Aug 13 — The Negri Sembilan government told the Federal Court today that the group of transgenders challenging the Shariah law that forbids cross-dressing among Muslims had used improper channels to file their bid.

In its bid to overturn an appellate court’s landmark ruling on the matter, the state government, represented by prominent lawyer Tan Sri Shafee Abdullah, also said the challenge had been premature as the group had only been charged with the offence in the Shariah Court and no decision had been delivered yet.

The lawyer argued that the Court of Appeal, and the Seremban High Court before it, had erred when it entertained the transgenders’ application for judicial review as the Federal Constitution does not state they have the jurisdiction to do so.

Citing Article 4(4) of the Constitution, Shafee said that proceedings to declare a law invalid must require the leave of a Federal Court judge.

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

The Negri Sembilan government is appealing that decision today along with five other applicants: the state’s Islamic Religious Affairs Department (JHEAINS), JHEAINS’ director, its chief enforcer, and the state’s chief Shariah prosecutor, and the Negri Sembilan Islamic Affairs Council.

The five-man panel led by Court of Appeal president Tan Sri Md Raus Sharif said today it will decide on these two arguments raised by Shafee first before hearing submissions on the constitutionality of Section 66.

The decision for today’s arguments will be delivered at a later date.

Lawyer Aston Paiva represented the three transgender clients, together with Fahri Azzat and Siti Kasim.

The Attorney-General’s Chambers, the Bar Council, the civil society, and several state Islamic councils appeared as amicus curiae or “friends of the court” — independent parties who may raise their points in court.

Several other parties held a watching brief, including the Shariah Lawyers Association of Malaysia, the Muslim Youth Movement of Malaysia, and ruling party Umno.

The case is among two hearings today where state Islamic authorities are arguing that fundamental constitutional rights guaranteed to all Malaysians cannot be applied to determine the validity of Islamic laws.

In a watershed decision in November, the Court of Appeal ruled Section 66 to be unconstitutional and void, noting that the provision contravened fundamental liberties, including personal liberty, equality, freedom of movement and freedom of expression.

The three-judge panel of Malaysia’s second-highest court led by Justice Datuk Mohd Hishamudin Yunus and comprising Datuk Aziah Ali and Datuk Lim Yee Lan had also said the law was discriminatory as it failed to recognise men diagnosed with gender identity disorder. 

Supporters of a group of transgenders challenging the Shariah law that forbids cross-dressing among Muslims are pictured at the Palace of Justice, Putrajaya, August 13, 2015. — Picture by Yusof Mat Isa
Supporters of a group of transgenders challenging the Shariah law that forbids cross-dressing among Muslims are pictured at the Palace of Justice, Putrajaya, August 13, 2015. — Picture by Yusof Mat Isa

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