Back to square one for transgenders as Federal Court overturns landmark ruling on Shariah law

PUTRAJAYA, Oct 8 — The Federal Court has overturned today the Court of Appeal’s landmark decision declaring an anti-crossdressing Shariah law unconstitutional and void, setting back the transgender community’s struggle for its civil rights.

The five-man bench led by Justice Tan Sri Md Raus Sharif set aside the judgments made by the High Court and Court of Appeal and the High Court, citing improper procedures used to commence the lawsuit that they said rendered the lower courts’ rulings invalid.

“We are in view that since the respondent failed to follow procedure as laid out in Clause 3 and 4 of Article 4 in the Federal Constitution, the learned judges of Court of Appeal and the High Court were in great error in determining the validity of Section 66 of the Negri Sembilan Shariah Criminal Enactment as unconstitutional,” Raus said when delivering the judgement.

He explained that the applicants should have started their legal challenge directly at the Federal Court as the matter involved the Federal Constitution.

The decision comes after the lawyer of the appellant, the Negri Sembilan government, Tan Sri Shafee Abdullah argued in August that the group of transgenders challenging the Shariah law that forbids cross-dressing among Muslims had used improper channels to file their bid.

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.

The apex court’s decision today will set a precedent on other cases where state Islamic authorities are arguing that fundamental constitutional rights guaranteed to all Malaysians cannot be applied to determine the validity of Islamic laws.

Lawyer Aston Paiva, who represented the three transgender respondents, said that while the orders declaring Section 66 unconstitutional have been set aside, it does not mean that they will not be allowed to bring the case back to the apex court.

“Today all they’ve said is all the orders have been set aside but the reasoning is still there. So the law is on its point of reason it is unconstitutional but the orders are all set aside so it’s void.

“All the Federal Court has said is, instead of going and arguing at the High Court, come straight to us,” he said.

Paiva added that he was unsure if his clients will refile the case at the Federal Court as the decision was contingent on a consultation with his clients as well as whether or not Negeri Sembilan enforces the ban on crossdressing.

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, 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.

The Negri Sembilan government had appealed that decision 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.