NOVEMBER 13 ― Tear down the mountains, yell, scream, and shout. You can say what you want ― they are not walking out.
The recent decision of the three-man panel led by Justice Mohd Hishamudin Mohd Yunus together with Justices Aziah Ali and Lim Yee Lan at the Court of Appeal, have held that Section 66 of the Syariah Criminal (Negri Sembilan) Enactment 1992 on the prohibition of cross-dressing is against the Federal Constitution.
Justice Mohd Hishamudin Mohd Yunus also held, amongst others, that the Federal Constitution existed to protect the minority against the tyranny of the majority.
Perhaps, the Court has also finally realised that emulating femininity does not at all jeopardise one’s masculinity.
Indeed, there is no happier and momentous time more than the day the Mak Nyahs are finally freed from the ruthless shackles of social genocide, and the law that had been used as a deadly weapon to rob them off their freedom to lead a life they choose is ordered to be erased off the face of the earth immediately.
A very hearty ‘Congratulations’ is in order!
By virtue of this decision, all laws criminalising cross-dressers at all States have now become null and void.
As Islamisation is seen to be gradually beginning to establish its root in the global face of moderate Islam, such brave decision is indeed a proof that any attempts to turn this country into a socially apocryphal state will never be welcomed, let alone tolerated.
Just because one is born different from the other, neither the former nor the latter deserves to be treated inconsiderately and with total disregard to his burden of inadequacy.
While equality accords recognition of one’s inherent right to enjoy equal treatment as a free and civilised human being, it does not, however, seek to mete out an equal nature of punishment for a purported wrongful conduct that one is said to have committed irrespective of the reasons behind such act. What is even worse is that the conviction is pursued relentlessly in one’s effort to deny the other the right to embrace, express and appreciate his way of life.
The argument laid against the liberty to exercise one’s freedom of expression has always been the fallacy that one would then be allowed to act at his whim and fancy in the name of freedom that everyone is said to be inherently born with.
It is prudent to examine and subsequently realise that the major difference between one’s insistence on exercising his right without any intervention by any institutionalised body and the other’s refusal to appreciate the same by virtue of cultural incompatibility in a given society can be peacefully pacified and finely reconciled by looking closely at the spirit and practical workings of the Federal Constitution in its truest meaning and intent.
Human right and the Federal Constitution
The cardinal principle on the supremacy of the Federal Constitution is Article 4(1) of the Federal Constitution, which boldly proclaims that the supreme law of the land shall be the Federal Constitution itself and any law passed which is inconsistent with the Federal Constitution shall, to the extent of the inconsistency, be void.
This constitutional position must not be read without close reference to Article 75 of the Federal Constitution with respect to the issue of inconsistency between federal and state laws, which allows the former to prevail and the latter, to the extent of its inconsistencies, to be void.
Fundamental liberties are matters of federal concern with which any laws to be passed must stand its test of constitutionality primarily on this ground.
Article 5(1) of the Federal Constitution provides for one’s right to not be deprived of his life and personal liberty save in accordance with the law.
In essence, this constitutional provision expresses its outright opposition to any form of denial of rights to life and other individual freedoms that know no boundaries except that those expressly limited by the authority reason of which is to secure public order and to accommodate the recognizable social mores.
Despite the exception, one would find comfort in the judgment of the case of Sivarasa Rasiah v Badan Peguam Malaysia & Anor, that such exception present in the final limb of Article 5(1) of the Federal Constitution must be in line with a law that is fair and just and not merely any laws enacted without considering the arbitrary or unjust nature of the such laws.
It was held in the same case that when a law is challenged as being violative of fundamental human rights under Article 5(1), “Article 8(1) will at once be engaged”.
Article 8(1) of the Federal Constitution guarantees equality before the law and equal protection of the law.
Notwithstanding such clear and express recognition of the equal treatment granted in the said constitutional provision, one must not rashly view this to mean that everyone ought to be treated equally irrespective of one’s physical capacity and mental endurance. The philosophy of law is apart from achieving justice is to ensure that justice is achieved justly.
In the case of Mak Nyahs, their Lordships are indeed correct in holding that normal males and Mak Nyahs do not share the same biological and mental predicament and are thus unequal. By reason of inequality, the latter should not be treated similarly as the normal males, and equal treatment on this basis under Section 66 of Syariah Criminal (Negri Sembilan) Enactment 1992 is therefore found to be wanting.
In this spirit, it was observed that the appreciation of Article 8(2) of the Federal Constitution that in any law, there shall be no discrimination against citizens on the ground of gender fails to be given effect to as Section 66 of Syariah Criminal (Negri Sembilan) Enactment 1992 only criminalises a male who feigns an appearance of a woman and while Muslim women cross-dressers are spared the humiliation of the charge.
It is also dangerous to disregard the significance of unrebutted medical evidence that further substantiates their Lordships’ position that there is no scientifically proven pharmacological treatment or psychological therapy for such condition.
The Court of Appeal is also with our sisters when it held that the charge pressed upon them was a grave divergence from Articles 9(2) and 10(2) of the Federal Constitution on freedoms of movement and expression respectively.
Though many may argue that the decision in this case is not a complete victory for all Mak Nyahs as a clear distinction has been made between Mak Nyahs generally and those with a medical condition called “Gender Identity Disorder” specifically, this cannot be a strict threshold to pass in the future cases of this nature as Section 66 of Syariah Criminal (Negri Sembilan) Enactment 1992 is also held to be antithetical to the constitutional provision found in Article 8(2) of the Federal Constitution on gender equality that must be widely interpreted to liberally include anyone irrespective of any gender.
Focusing on moderation
With richly diverse religious interpretations in relation to cross-dressing, one is undoubtedly lavished with a myriad of versions to carefully choose from. As there are a lot of Quranic verses that call for compassion, love, tolerance, and understanding, it is rather irresponsible to view Islam through the most rigid, cruel, harsh, and inconsiderate of spectra.
Let us all be reminded that God is not God if God needs to be defended, and no God is an almighty one if God is selective in showering blessings to the subjects of Her own creation.
She certainly knows Her job very well and does not require our assistance. All we need to do is to just leave Her to that.
To know the truth of the matter is to walk on the shoes of the actors and make every effort to internalise and eventually understand their story.
All cultural and religious values that are embedded in late antiquity surely need a major overhaul and its staunch proponents must be ready to embrace the beauty of universalism that does not negate the importance of mutual understanding between two parties holding differing opinions.
Fret not! It is not treacherous to give preference to the universal values that appreciate inclusivity as opposed to discrimination in any given society perpetuated in the name of Islam. If one can agree that Islam transcends all social dimensions, then let God alone deal with them and our main responsibility is to respect one’s choice in leading her or his life.
While religious scholars have always been going at it hammer and tongs over an opinion and yet they can still agree on the possibility of being wrong, then why are we so obsessed about defending our own self-derived version of truth without considering others’?
Like art, religion has been an attempt to find meaning and value in life, despite the thousand natural shocks that flesh is heir to.
Sometimes, despite a pair of beautiful eyes we are all blessed with, it only takes a glimpse of queer vision for one to walk on a smooth path to the straight future.
*The author is a lawyer who believes in justice and equality. He is also a fervent advocate for women’s rights.
** This is the personal opinion of the writer and does necessarily represent the views of Malay Mail Online.
