Although Islam is the religion of the federation in Malaysia, as defined under Article 3(1) of the Federal Constitution, it is subject to the limitations of the fundamental liberties of a person, the Court of Appeal ruled today.

In his 46-page written judgment on a case involving transgenders, Justice Mohd Hishamudin Yunus noted that Article 4(1) of the Federal Constitution declares the constitution as the supreme law and any law running contrary to the constitution shall be considered void.

Justice Hishamudin then went on to quote the judgment of former lord president Salleh Abbas in the case of Che Omar bin Che Soh v Public Prosecutor.

In this case, the judge said the word Islam in Article 3(1) should be given a restrictive meaning based on Article 3(4), which states that nothing in this Article derogates from any other provision of the constitution.

In declaring Section 66 of the Negri Sembilan Syariah Criminal Enactment 1992, which bars men from cross-dressing as females in public as unconstitutional and void, Justice Hishamudin ( left ) said the court finds merit in the transgenders' case.

“As long as Section 66 is in force, the appellants (the four transgenders) will continue to live in uncertainty, misery and indignity.

“They now come before this court in the hope that they may be able to live with dignity and be treated as equal citizens of this nation.

“We therefore hold that Section 66 is inconsistent with Article 5(1) of the Federal Constitution in that the section deprives the appellants of their right to live with dignity,” he wrote in the unanimous judgment.

Articles 5 to 13 stipulate the rights of citizens of Malaysia, which are listed as Part II of the Federal Constitution. Article 5(1) states that no person shall be deprived of his life or personal liberty, save in accordance with law.

In its landmark verdict on Nov 7 last year, the Court of Appeal recognised transgenders as having a gender identity disorder and hence declared Section 66 of the Negeri Sembilan syariah law, which subjects transgenders, locally known as ‘ mak nyah ’, to frequent arrests for cross-dressing as null and void.

The Negri Sembilan government has since filed an application for leave (permission) to appeal this decision, which will be heard by the Federal Court on Tuesday.

Transgenders face jail

Muhamad Juzaili Mohamad Khamis, 26, Syukor Jani, 28, and Wan Fairol Wan Ismail, 30, filed the constitutional challenge against Section 66 of the Syariah Criminal (Negri Sembilan) Enactment 1992 on Feb 2, 2011, under which a person convicted can be jailed up to six months and fined up to RM1,000 by the syariah court.

Initially, a fourth person filed the appeal with them, but he has since withdrawn from the appeal.

Juzaili, Syukor and Wan Fairol named the Negri Sembilan state government, the state Islamic Affairs Department and its director, the syariah enforcement chief and prosecution chief as respondents.

Although the enactment is subject to syariah law, Justice Hishamuddin said interpretation of the Federal Constitution is a matter for the court, not for the syariah court. This is also in keeping with the Federal Court decision in Latifah Mat Zin vs Rosemawati Sharibun and another.

“Their application involves the interpretation of the constitution; and that only the superior civil courts established under the Federal Constitution have the jurisdiction to determine disputes on the interpretation of the provisions therein (in the Federal Constitution).

Justice Hishamudin agreed with counsel for the transgenders that the disturbing effect of Section 66 of the Negeri Sembilan syariah criminal enactment was that it builds insecurity and vulnerability into their lives and other Muslim male persons with gender identity disorder (GID).

“The existence of a law that punishes the gender expression of transsexuals degrades and devalues persons with GID in our society. As such, Section 66 directly affects their right to live with dignity,” he said.

Justice Hishamudin further ruled that Section 66 is also inconsistent with Article 8(1) of the Federal Constitution, under which all persons are equal before the law and entitled to the equal protection of the law.

He noted the inclusion of persons suffering from GID in Section 66 discriminates against them as Muslims suffering from GID are in a different situation compared with nomal male Muslims.

“Being unequals, the appellants should not be treated similarly as the normal male Muslims. Yet Section 66 provides for equal treatment. It does not provide for any exception for sufferers of GID like the four,” the judge said, adding that the court also found the offending state law to be contrary to Article 8(2) as it is discriminatory against gender.

“This section does not prohibit female Muslims from cross-dressing as a man or from posing as a man in public. It is argued that Section 66 thus subjects male Muslim persons, like the appellants, to an unfavourable bias vis-à-vis female Muslim persons.”

No freedom of movement

In ruling Section 66 to be contrary to Article 9(2), which guarantees freedom of movement, the offending state law is explicit in criminalising any Muslim man who wears a woman’s attire or poses as a woman in public places.

“Thus, Section 66 cannot be said to merely restrict the transgender's freedom of movement. The impact of the section is more severe than that: it has the effect of denying them who are GID sufferers the right to move freely in public places.

“In effect, they and other male Muslim sufferers of GID will never be able to leave their homes and move freely in Negeri Sembilan without being exposed to arrest and punishment under that section. In other words, Section 66 denies them of their right to freedom of movement."

On whether it violates Article 10(1) (a), on the right to freedom of expression, Justice Hishamudin said that section affected their rights as they are prohibited from wearing the attire and articles of clothing of their choice.

“Article 10(2)(a) states that only Parliament may restrict freedom of expression in limited situations; and so long as such restrictions are reasonable.

“The State Legislative Assemblies (and this includes Negeri Sembilan) have no power to restrict freedom of speech and expression. Only Parliament has such power. The state law criminalises any male Muslim who wears a woman’s attire or who poses as a woman in a public place.

“Hence, Section 66 is unconstitutional since it is a law purporting to restrict freedom of speech and expression but it is a law not made by Parliament,” he ruled.

Therefore, Justice Hishamudin found Section of the Negeri Sembilan syariah enactment to be offending Articles 5, 8(1), 8(2), 9(2) and 10(1) (a) of the Federal Constitution.

The full judgment is available here .