BY AZRUL MOHD KHALIB
AUGUST 12 ― There is something going on at the Federal Court in Putrajaya this Thursday, August 13 which may not register much on the minds of many Malaysians, especially with the shenanigans going on in that town at the moment. However, the decision in a case being heard by the highest court in the land could have wide-ranging consequences for all Malaysians.
Last November, the Court of Appeal granted an appeal against a Seremban High Court judgement which dismissed a judicial review application to challenge the constitutionality of a Syariah law. Section 66 of the Shariah Criminal (Negeri Sembilan) Enactment 1992 was being used to persecute and prosecute those who are Muslim and transgender by criminalising any man who dresses or poses as a woman.
The panel of judges of the second highest court unanimously ruled this law as being unconstitutional.
The unconstitutionality of this law isn’t based on the right to cross dress or wear women’s clothes. It certainly isn’t based on an imaginary Western agenda or conspiracy to undermine Islam.
It was based on the basic principle that all Malaysians, regardless of whether they are Muslims or non-Muslims, in this country are afforded the same fundamental rights and protections under the Federal Constitution. That a person shouldn’t and cannot be singled out or criminalised for simply being who and what they are.
Being Muslims doesn’t provide the state or the religious authorities for that matter, with license to inflict, marginalise or inflict religious tyranny upon other Muslims. It can very often feel that way.
To say that being a transgender who is also Muslim, is doubly hard would be an unfortunate understatement.
Throughout the country, the transgender or Mak Nyah community have suffered through numerous documented incidences of arrest, harassment and abuse at the hands of the authorities. The justification for their persecution have been based on the use of laws such as Section 66. In fact, there is a similar legal provision in every state.
The existence of these laws which ignore the reality that transgender persons who live with Gender Identity Disorder exist, make them vulnerable to arrest, detention and prosecution by simply stepping out of their houses.
Basically, by virtue of being a Mak Nyah easily identifiable perhaps by her mannerisms, clothing or even hairstyle, a transgender person’s very existence is criminalised and subject to legal prosecution. She is also vulnerable to being a victim of mistreatment.
Many of those arrested often experience physical assault, extortion, humiliation and even sexual abuse during arrest, detention and imprisonment. Many have found it easier to just plead guilty and suffer through whatever abuse thrown their way. Many have lost their livelihoods as a result of harassment and prosecution.
A report by Human Rights Watch titled “I’m Scared to Be a Woman” documents these violations and abuses and is available for download here.
Hearing some of their stories and sometimes seeing the results of the assaults and abuse, it is often hard to stomach the fact that many of these acts were committed by those filled with religious zeal and moral righteousness.
This must stop. For too long, injustice has been committed, tolerated and even accepted.
The Court of Appeal judgement recognises and reaffirms that transgender persons have equal rights as citizens of this country just like everyone else, to live their lives with dignity, to have freedom of movement, earn a livehood and most importantly, have equal protection under the law.
Laws which permit for selective persecution of the transgender community based on what they wear and which jeopardise or violate the abovementioned rights are wrong.
The judgement also states the fundamental guarantee that the Federal Constitution exists to protect the minority against the tyranny of the majority. Islamic religious authorities need to acknowledge and respect the Federal Constitution as the supreme law of the land and the final arbiter on all things. That they are not above the law. That laws, even those related to the Shariah system, must not contradict the constitution especially if they victimise and deprive others of their rights and liberties as a citizen.
Make no mistake. This is not about challenging or disputing Islam. The teachings have always been about justice and compassion. However, the continued persecution of a minority cannot be but a misrepresentation, misinterpretation and perversion of the Islamic way of justice by the religious authorities. This must be corrected.
I stated earlier that this case would have far reaching consequences for all Malaysians, both Muslims and non-Muslims.
The increasing reality that we are facing today is that the civil courts are needed to ensure a check and balance to guard against misuse and abuse of the Shariah system.
There are those who would do so in the hardline conservative belief that the Shariah system should reign supreme above the Constitution. That it does not need to be accountable to that document. Even to the point of not acknowledging fundamental constitutional liberties and denial of human rights.
These parties have even included the leadership of the federal Department of Islamic Religious Development (JAKIM) under the Prime Minister’s Department. They have not been subtle about it either. Their role models are countries like Saudi Arabia and Brunei and they are working hard to make our country be like those two. Is that what we want?
If we are to maintain our way of life as we know it today in Malaysia, we must be able to fight back and support those who do so for all our sakes. Like these three transgender women.
The courage of the three individuals who have come forward to fight this case instead of submitting to persecution by the Negeri Sembilan religious authorities cannot be overstated. Arguably, by virtue of the wide-ranging implications of this case, particularly to emphasise and highlight the supremacy of the Federal Constitution, Malaysians owe them a debt of gratitude.
If we are better off and more protected in our rights and liberties in this country as a result of this case, it is because they fought back.