The Federal Court erred in allowing the preliminary objection by the Negri Sembilan government in the landmark transgender case involving cross-dressing, said retired Court of Appeal judge Datuk Mohd Hishamudin Mohd Yunus.
“It is a very disturbing decision and with due respect, I think Federal Court got it wrong,” he told the forum, “Whither the Federal Constitution – Do fundamental and minority rights matter?”, organised by the Bar Council in Kuala Lumpur today.
On October 8, the Federal Court allowed the objection raised by the Negri Sembilan government that the transwomen should have obtained leave of a single Federal Court judge to commence their constitutional challenge under article 4(4) of the Federal Constitution.
Hishamudin said this preliminary objection was never raised in the High Court or the Court of Appeals.
In November last year, Hishamudin led a three-man Court of Appeals bench which declared void section 66 of the Negri Sembilan Shariah Criminal Enactment 1992 as it violated the constitutional right of freedom of expression and movement, and the right to live in dignity and equality.
The apex court, however, overturned the Court of Appeal’s decision, on grounds that the appellate court had no jurisdiction to declare section 66 unconstitutional as the transwomen used the wrong legal procedure to start their action.
They had commenced their action by way of judicial review in the High Court in Seremban in 2011.
Lawyers for the transwomen argued that challenges on the breach of fundamental rights could begin in the High Court, whereas the challenge on the competency of state legislature to make laws that went against the Federal Constitution must commence in the Federal Court.
The transwomen – Muhammad Juzaili Mohd Khamis, Shukor Jani and Wan Fairol Wan Ismail – had challenged the provision, saying it violated their constitutional right of freedom of expression, movement and their right to live in dignity.
Section 66 makes it illegal for Muslim men to dress in women’s clothes, punishable with a fine not exceeding RM1,000 or jail of not more than six months or both.
The three, said to be make-up artists, had been arrested several times for dressing as women and suffered deep-seated discrimination, harassment and even violence because of their gender identity. – December 19, 2015.