Transgender case: Court of Appeal error? — Azril Mohd Amin and Aidil Khalid

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NOVEMBER 17 — Somewhere along the line, the civil courts would have to stop niggling away at the syariah courts. So does the civil common law at the Islamic law. These courts and laws are not meant to engage in a power struggle against each other; they are meant to complement each other.

The constitutional provision is clear. Article 121(1A) provides for a dual legal system, wherein the civil or secular law goes hand in hand with the Islamic law. The implication of which is that secular law cannot be used to modify syariah law — although the former is within the federal list, while the latter the state list — neither could the civil courts intervene in matters that fall within the jurisdiction of the syariah courts. To do so would be an affront to the very structure of our legal system. These are basics, of which even first-year law students are expected to know, what more judges of the Court of Appeal.

Alleged unconstitutionalities

Notwithstanding Article 121(1A), however, Article 4(1) of the Federal Constitution on the other hand provides that the constitution is supreme, and as such any law which is inconsistent with its provisions would very much be opened for challenge. The courts, therefore, have the power to declare any law unconstitutional to the extent of its inconsistency with the constitution. And this, the Court of Appeal verily did, in its recent judgment on transgender and cross-dressing, wherein the three panel judges who sat and heard Muhamad Juzaili bin Mohd Khamis & 2 Ors v State Government of Negri Sembilan & 4 Ors unanimously held that section 66 of the Syariah Criminal Enactment 1992 (Negeri Sembilan) criminalising cross-dressing of any male person wearing a woman’s attire in public, as void for supposedly being inconsistent with Articles 5(1), 8(1), 8(2), 9(2) and 10(1)(a) of the Federal Constitution.

The gist of the Court of Appeal’s reasoning could be summarised, inter alia, (i) that the competence of the State Legislature of Negri Sembilan on matters pertaining to the religion of Islam extends only insofar as to any conditions or restrictions imposed by the Federal Constitution; and (ii) that the State Legislative Assemblies in Malaysia including the State legislature of Negri Sembilan have no power to restrict freedom of speech and expression (and cross-dressing falls within such definition of expression). In other words, the Court is saying that the Negri Sembilan State Legislature went beyond its constitutional power in enacting such law as section 66 of the Enactment.

Fatal procedural non-compliance

Reading through the brief written judgment (the full written grounds of which has yet to be made public at the time of writing this piece), one could not help but wonder as to whether the Court of Appeal judges had fatally erred in entertaining such challenge to the constitutionality of the said provision in the State Enactment, especially in light of specific mandatory procedure in clauses (3) and (4) of Article 4 of the Federal Constitution, which seems, based from the brief written judgment, to have been overlooked and not been complied with.

Clauses (3) and (4) thereof provides that a party seeking to challenge the validity or constitutionality of any law can only do so in a proceeding which may only be commenced with leave of a Judge of the Federal Court. The key word here is that the leave must be from a judge of the Federal Court. It could not come from any judge of any lower rank. But a perusal of the brief judgment reveals that the leave for judicial review for this case, which was granted on November 4, 2011, was given not by a judge of the Federal Court, but rather by Rosnaini Saub J, who is a High Court judge. Therefore, clearly the leave granted was bad in law, for the learned judge was in no position to grant such leave, and as such the whole proceeding null and void; and likewise the whole appeal should have crumbled and fall at its very first instance.

The operation and rationale of such mandatory procedural requirement came into consideration by the Federal Court in 1976 and was explained in Ah Thian v Government of Malaysia. There, Suffian LP even went further by holding that clause (1) of Article 128 of the Federal Constitution further “provides that only the Federal Court has jurisdiction to determine whether a law made by … State legislature is invalid on the ground that it relates to a matter with respect to which the relevant legislature has no power to make law. This jurisdiction is exclusive to the Federal Court, no other court has it. This is to ensure that a law may be declared invalid on this very serious ground only after full consideration by the highest court in land.”

Of course, one could argue, that be that as it may, the matter would still in any event be heard by judges of the Federal Court, once it is appealed to the Federal Court. But this would be putting the cart before the horse, for how could the matter be allowed to be heard when the leave to hear the matter has not even been properly granted as yet? Suffice to say that this is such a fatal error which goes to the very foundation, and in the absence of which, the Court of Appeal should have just summarily dismissed the appeal for want of proper leave and due process.

Substantive constitutional issues

Moving on from the procedural aspect to the more substantive issues, looking at the Malaysian legal system as a whole, it must be admitted that syariah law plays a relatively small role in defining the laws of the country. For it only applies to Muslims. With regard to civil law, the syariah courts have jurisdiction in matters of personal law, such as marriage and inheritance. In some States, there are syariah criminal laws, such as the Kelantan Syariah Criminal Code Enactment 1993, and of course, the Syariah Criminal Enactment 1992 (Negri Sembilan). Their jurisdiction is however limited to imposing fines for an amount not more than RM5,000, imprisonment of not more than three years, and whipping of not more than six strokes.

The fundamental Islamic position is that Islamic law should not be subservient to secular law. This principle must be read in the context of Article 3(1) of the Federal Constitution, which puts Islam on a very high pedestal by declaring it the religion of the Federation. This in itself is not an allowable position for a secular government to take. But like it or not, this is exactly the position that the framers of our constitution had intended it to be. So now we are engaged in the process of deciding to what extent does this role of Islam in the Federal Constitution implies that Islamic law may NOT be lightly disregarded; and to what extent does it apply to persons professing the religion of Islam?

The Federal Court in 2005 had actually settled this. In Lina Joy v Majlis Agama Islam Wilayah Persekutuan & Ors, it was held that “Islam is not just a mere collection of dogmas and rituals but it is a complete way of life covering all fields of human activities, private or public, legal, political, economic, social, cultural, moral or judicial.” On top of such broad finding by the Federal Court, the Court of Appeal in the recent case of The Herald, had also gone further to hold that the position of Islam as the religion of the Federation is not merely ceremonial in nature, but rather it imposes obligations on the power that be to promote Islam, citing with approval an article by Muhammad Imam entitled Freedom of Religion under Federal Constitution of Malaysia – A Reappraisal, that “Article 3 is not a mere declaration. But it imposes positive obligation on the Federation … to give effect by appropriate state action, to the injunction of Islam and able to facilitate and encourage people to hold their life according to the Islamic injunction spiritual and daily life.”

It is in such light that one finds it difficult if not almost impossible to reconcile the Court of Appeal’s recent decision in excusing its appellants from criminal punishment based on the supposition that they suffer “Gender Identity Disorder”, a medical condition, as testified by various psychiatrists and other social experts. The court insists that because of such psychiatric condition, therefore, they have “human rights” that must be protected, even though they publicly and emphatically, as Muslims, practise non-Islamic behaviour. This is an impossible situation. Muslims excused from normal criminal punishment due to medical designations must at the very least be confined to treatment centres where their un-Islamic behaviour can be corrected by medical means. If such means are not readily available, they must be developed with all possible haste by the social experts who put the miscreants in such facilities.

It is pertinent to point out that the American position seems to be directly in contrast with our position here. While our Court of Appeal judges who declared section 66 of the Syariah Criminal (Negri Sembilan) Enactment 1992 against cross-dressing as unconstitutional seem to have bought “the pity card” played by the appellants in justifying their unnatural behaviour as symptoms of the medical condition called “GID”, or “Gender Identity Disorder”, as mentioned above, the Americans, however, prefer to hold that no such “disorder” exists. In fact the movement to declassify any form of gender or sexual preferences as decease had begun since 1973, when the American Psychiatric Association (APA) declassified unnatural preferences of gays and lesbians as psychological decease, following intimidation and lobbying from gay groups and activists, for they consider it demeaning and insulting for their preferences to be classified as a disease.

While it is noted that the Court of Appeal in its brief judgment referred to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM IV-TR) published by APA, where GID is considered a disease, the fact however is that in its fifth edition, published in 2013, the APA had decided to remove the term GID. Gender behaviour is now considered a free choice of equally free and mentally healthy citizens by the Americans.

The inevitable question would of course be is it or is it not a disease? If courts’ decisions can be made on the basis of a supposed Gender Identity Disorder which has been declared non-existent by the American Psychiatric Association, the next question that follows would be where, then, could religious law fit in? The Al-Qur’an clearly answers this question in the story of the Prophet Luth and his people. That answer is, whether the American psychiatrists like it or not, widespread GID behaviour is an affront to our Creator and will eventually result in Divine Retribution.

And yet the debate continues. In response to a submission by Iskandar Ali, State Legal Adviser of Negri Sembilan, which asserts Section 66 “is not prejudicial to the appellants as they are persons of unsound mind”, the Court of Appeal Judge Dato’ Hishamuddin Yunus writes, “[i]n the absence of medical evidence, it is absurd and insulting to suggest that the appellants and other transgender [individuals] are persons of unsound mind”.

On the contrary, the American position can also be argued to place GID behaviour squarely into the realm of social behaviour that can be legislated the same as any other overt public behaviour. This is similar to the challenge mounted by the United Nations Human Rights Council to Malaysia, which dialogue has not yet reached closure, even though Malaysia has recently been elected to sit on the Security Council itself. The United Nations wants to protect all manner of gender deviance under the protective rubric of “human rights”. And so, evidently, does our own Court of Appeals judge. And yet, how can this secular concept of “human rights” simply dismiss almost universal religious opinion to the contrary?

The decision of the Court of Appeal implies that even so-called Muslim deviants must enjoy the freedom of behaviour and dress implied by any constitution, including that of Malaysia. Can we allow this decision to stand? In fact, the Court of Appeal in reaching such a finding, had applied and followed, almost in-toto, the decisions of the courts of foreign countries, namely that of the Indian Supreme Court’s in National Legal Services Authority v Union of India & Ors, as well as the United States Supreme Court’s in Tinker v Des Moines Independent Community School District. This is alarming, especially when such importations of foreign principles fail to take into consideration the inherent and irreconcilable differences that exist between our constitution and the constitutions of those countries, particularly with respect to the absence of any religion of the federation in the Indian and United States constitutions, very much unlike ours. 

This indeed calls for serious concern, not only for those in the legal fraternity, but also all Malaysians at large, for it goes contrary to long-held principle as established by various judicial precedents of our own courts, that the interpretation of our Federal Constitution must be free from outside interferences. In 1975, for instance, Raja Azlan Shah FJ (as the late Royal Highness then was), in giving the judgment of the Federal Court in Loh Kooi Choon v the Government of Malaysia held that “our Constitution now stands in its own right and it is in the end the wording of our Constitution itself that is to be interpreted and applied, and this wording ‘can never be overridden by the extraneous principles of other Constitution’.” Further, even prior to that, in 1963, the Federal Court in The Government of Kelantan v The Government of the Federation of Malaya & Tunku Abdul Rahman Putra al-Haj had held that our “Constitution is primarily to be interpreted within its own four walls and not in the light of analogies drawn from other countries such as Great Britain, the United States of America or Australia”.

If the syariah law could be dismissed in such a manner by drawing principles from foreign constitutions, one would shudder to think what would and could happen to the position of Islam as the religion of the Federation.

In the light of all of the above, one would have to suggest that the only way forward would be for the State religious authorities to appeal to the Federal Court and to all of Malaysia as a sovereign Islamic political entity to reassert her position at the international level. Perhaps we need to revisit our position at the Organisation of Islamic Cooperation (OIC) and recent United Nations reviews and requests.

*Azril Mohd Amin is a lawyer and Executive Director of the Centre for Human Rights Research and Advocacy (CENTHRA), while Aidil Khalid is a lawyer and senior fellow of CENTHRA.

**This is the personal opinion of the writers or publication and does not necessarily represent the views of The Malay Mail Online.

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