Court ruling on Muslim transsexuals raises alarm over Islam ‘superseding’ Constitution

Members of the lesbian, gay, bisexual and transgender (LGBT) community and residents took part in the annual "Marcha de la diversidad" (diversity demonstration) in downtown Montevideo September 28, 2012. A Malaysian High Court ruling against Muslim transexuals has sparked concerns that Islamic law is now supplanting the Federal Constitution, say legal experts. — Reuters pic

KUALA LUMPUR, Oct 12 — A High Court ruling against Muslim transsexuals in Negri Sembilan yesterday is raising concerns that Islamic law is now supplanting the Federal Constitution as the country's supreme law, legal experts have said.

Civil liberties lawyer Syahredzan Johan and law lecturer Azmi Sharom told The Malaysian Insider that there is a worrying trend that the judiciary has been putting Islamic law above all other laws in Malaysia's dual-track court system - pointing to yesterday's judgment as an example of an erosion of the Federal Constitution.

“There is a worrying trend in which the judiciary appears to place Islamic enactments on a higher pedestal than the Constitution.

“Islam is the religion of the Federation, but that does not mean that 'Islam', or what the authorities deem as 'Islam', supersedes other Constitutional provisions,” Syahredzan said.

High Court judge Datuk Siti Mariah Ahmad had dismissed a challenge by a group of Muslim transsexuals to an Islamic legal provision barring men from wearing women's clothes or dressing up as females, saying Muslims cannot be exempted from Syariah legal provisions.

The judge had also ruled that Part II of the Federal Constitution - which guarantees Malaysians fundamental liberties such as equality before the law, freedom of religion, and which prohibits slavery and enforced labour among others - is exempted by section 66 of the Negri Sembilan Syariah Criminal Enactment 1992, according to lawyer Aston Paiva, who represented the transsexuals.

He said the judge had relied on the religious opinion on the Negri Sembilan mufti to justify section 66 in making her oral ruling. He added that the written judgment of the case was not yet available and the judge had not indicated when it would be released.

Section 66 of the state's Islamic criminal code states that “any male person who, in any public place wears a woman's attire or poses as a woman shall be guilty of an offence and shall be liable on conviction to a fine not exceeding RM1,000 or to imprisonment for a term not exceeding six months or both.”

Syahredzan said the Seremban High Court ruling followed an earlier Federal Court decision in which it was held that Islam must be protected “at all costs”. 

“The Supreme Court in the case of Che Omar Che Soh is clear on this; provisions relating to Islam must receive secular fiats to become law,” he said, adding that it meant the proposed laws must be passed by Parliament or the State Legislative Assemblies.  “It also means that laws enacted, regardless of whether they are Syariah enactments or Acts of Parliament must be subjected to and consistent with the Constitution,” he said.

Azmi, an associate professor at Universiti Malaya's (UM) law faculty, went a step further.

“It is going to give a carte blanche to state legislative assemblies, Islamic religious departments and muftis to make any laws that go against the Constitution simply by saying it is Islamic and circumnavigating the Constitution.

“If you do not respect this basic rule, then what safety net do we have as citizens?” he asked.

The four transsexuals identified by their birth names - Muhamad Juzaili Mohd Khamis, Shukor Jani, Wan Farol Wan Ismail and Adam Shazrul Mohd Yusoff - who have all been previously arrested and convicted under Islamic criminal laws had initiated the suit last year against the Negri Sembilan government and the state Islamic affairs department to end the “persecution”, which they claimed to be a violation of their constitutional rights.

Paiva told The Malaysian Insider that his clients, who have been medically diagnosed to have a gender identity disorder, only wanted the court to declare that Section 66 “does not apply to anyone with a gender identity disorder.”

He said they were distraught and were considering appealing the ruling.