Bid to challenge cross-dressing law improper, says lawyer

Representing Negri Sembilan Tan Sri Muhammad Shafee Abdullah says the transgenders' bid to challenge the state religious enactment is premature. – The Malaysian Insider filepic, August 13, 2015.

Negri Sembilan's appeal against a Court of Appeal ruling, which declared unconstitutional a law for punishing Muslims who cross dress, took a twist when its lawyer raised a preliminary objection.

Counsel Tan Sri Muhammad Shafee Abdullah today told a five-man Federal Court bench led by Tan Sri Raus Sharif that the three transwomen had used the wrong mode to challenge the state religious enactment.

"They are asking for Section 66 of the Negri Sembilan's Syariah Criminal enactment to be declared unconstitutional," he said.

Shafee said the three should have invoked Article 4 of the Federal Constitution to go straight to the Federal Court and obtain leave since they were challenging a state law that is against human rights.

The transwomen – Muhamad Juzaili Mohd Khamis, Shukor Jani and Wan Fairol Wan Ismail – stated their action in the High Court in 2013.

Shafee said the Federal Court last June in the case of the Catholic Church against the Home Ministry ruling laid that procedures in Article 4 should be followed when a constitutional issue were raised.

He said the transgenders' appeal was premature because the Seremban Shariah Court had not made a decision after the trio were charged.

"They should have waited for the religious court to make a ruling before coming to the civil court."

Lawyer Aston Paiva, representing the transwomen, told the bench that he was surprised that Shafee did not raise an objection in January when the Federal Court granted leave to the state government to appeal against the decision.

He said a judicial review was filed in the High Court to obtain a declaration against a public authority.

"I do not see how the state will be prejudiced if the appeal is heard now," he said.

Aston said constitutional issues could be raised at any time and leave of the Federal Court need not be obtained.
 
He said the three had been previously arrested, detained and finally convicted by the religious court.
  
"They are seeking a remedy in the civil court because transgender Muslims can be arrested anytime," he added.
  
Aston said non-Muslim doctors said that the three had gender identity disorder (GID).

Raus then deferred hearing pending a decision of the preliminary objection.

In January, the apex court allowed a question whether Section 66 of the enactment contravened Articles 5, 8, 9 and 10 of the constitution.
  
On November 7, 2014, judge Datuk Mohd Hishamudin Mohd Yunus, who led the appellate court's three-member bench, declared that Section 66 was void as it violated the constitutional right of freedom of expression, movement and the right to live in dignity and equality. 

Hishamudin held that Muslim transwomen had the right to cross-dress and the state religious authorities had failed to prove Islam's position on how those with GID should dress.

He said the three Muslims in the case were not "normal males" as they suffered from the disorder, which had been confirmed through psychiatric and psychological tests.

The religious authorities did not rebut the medical evidence in court.

The state religious authorities only filed an affidavit by the Negri Sembilan mufti, who said Section 66, which prohibited a male from dressing as a woman, was a precept of Islam.

The mufti's affidavit was filed in response to findings by sociologist, Professor Dr Teh Yik Koon, who had given supporting evidence on the disorder, in addition to explanations on how Section 66 had adverse effects on transsexuals and society.

- TMI