PUTRAJAYA: The Federal Court ended three transgenders’ bid to declare an anti-cross dressing law unconstitutional, on a technicality.
The panel, led by Court of Appeal president Justice Md Raus Sharif, allowed the Negri Sembilan state government’s preliminary objection that the wrong mode was used to mount a legal challenge.
The three had filed a judicial review to the Seremban High Court for a declaration that Section 66 of the Syariah Criminal (Negri Sembilan) Enactment 1992 was unlawful.
“The Court of Appeal and High Court were in grave error in entertaining the respondents to question the validity of Section 66,” said Justice Md Raus.
He found that such an application could only be addressed by the Federal Court directly.
“For the reasons above, we allow the appeal solely on the preliminary issues raised,” ruled Justice Md Raus.
He also ruled that the earlier proceedings, which were heard without jurisdiction, were null and void, rendering the landmark Court of Appeal ruling moot.
On Nov 7 last year, the Court of Appeal panel, led by Justice Mohd Hishamudin Mohd Yunus (who has since retired), ruled that criminalising cross dressing for Muslims was an unreasonable restriction of a person’s freedom of expression.
This meant that state religious bodies now had the right to arbitrarily take action against Muslim men and women for dressing as the opposite gender.
The five person panel, which also included Justices Hasan Lah, Ahmad Maarop, Azahar Mohamed, and Zaharah Ibrahim, made no order as to costs.
Lawyer Aston Paiva, said he would have to consult his clients before considering filing the case to the Federal Court.
Justice for Sisters volunteer S. Thilaga said the decision was “a setback, not a defeat” and that public perception brought by this case had reduced incidents of abuse against the community.
The legal saga started in 2011 when Muhamad Juzaili Mohd Khamis, 28, Shukor Jani, 29, and Wan Fairol Wan Ismail, 31, obtained leave to challenge Section 66.
Although the Seremban High Court dismissed their review, the Court of Appeal reversed the decision and declared Section 66 unconstitutional for criminalising cross dressing.
Currently, Section 66 allows the Syariah Court to punish any man who dresses or poses as a woman with up to six months in prison or fined a maximum RM1,000.
- Court of Appeal wrong to declare religious law unconstitutional, rules Federal Court [8 Oct 2015]
- Ruling on transgender may be overturned on technicality [14 Aug 2015]
- Transgenders’ bid to challenge cross-dressing law improper and premature, apex court told [13 Aug 2015]
- Two lawsuits today spotlight supremacy of constitutional guarantees vs Islamic law [13 Aug 2015]
- Correcting an injustice towards the transgender community – Azrul Mohd Khalib [12 Aug 2015]
- Transgenders and Constitutional Rights – Gurdial Singh Nijar [1 May 2015]