Shafee to represent Negri Sembilan government in transgender case

Umno lawyer Tan Sri Muhammad Shafee Abdullah will appear for the Negri Sembilan government. – The Malaysian Insider file pic, December 12, 2014.

Umno lawyer Tan Sri Muhammad Shafee Abdullah will appear for the Negri Sembilan government to obtain leave to appeal against an appellate court’s ruling which held as unconstitutional the state’s Shariah enactment that punishes Muslim transgenders for cross-dressing.

Court documents sighted by The Malaysian Insider revealed that Shafee, who was appointed ad-hoc deputy public prosecutor in Datuk Seri Anwar Ibrahim's sodomy appeal, would be counsel for the state.

Lawyer Aston Paiva, who is representing three transgenders, also confirmed that Shafee would appear against him in the Federal Court.

"He will move a motion before the Federal Court on behalf of the state government to obtain leave," Paiva told the Malaysian Insider.

An applicant in civil cases must first obtain leave from the Federal Court before appealing against a Court of Appeal decision.

Last month, Menteri Besar Datuk Seri Mohamad Hasan had said the state would engage lawyers in its bid to set aside the Court of Appeal ruling that allowed Muslim transgender males with identity disorder to cross-dress.

“We will get the best brains to represent us as this is an extremely important matter,” he had said.

At the Court of Appeal, the state religious authorities were represented by its state legal adviser Iskandar Ali Dewa and his assistant Muhammad Fairuz Iskandar.

The Malaysian Insider understands that the state was on a hunt to get a lawyer who was quite familiar with constitutional law, especially the jurisdiction of civil and Shariah courts.

"However, reputable civil lawyers who frequently appear in the superior courts declined to take the brief as the Court of Appeal ruling was quite convincing," a source said.

Shafee, 62, is also known to take up issues relating to constitutional and administrative law matters.

Meanwhile, Paiva said his clients had instructed him to object to the state's application to obtain leave because the seven legal questions posed by the state were not novel, neither were they of public interest.

The seven questions were posed by the state to obtain leave and the application will now be heard by the Federal Court.

"The issues on the jurisdiction of the Shariah and civil courts had already been dealt with by the Federal Court in the past," Paiva added.

On November 7,  judge Datuk Mohd Hishamudin Mohd Yunus, who led the appellate court's three-member bench, declared that Section 66 of the Negri Sembilan Shariah Criminal Enactment violated provisions in the Federal Constitution.

Hishamudin held that Muslim transgender males have the right to cross-dress and the state religious authorities had failed to prove Islam's position on how those who suffered from gender identity disorder (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, the court said in its written judgment.

The state religious authorities had 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 appellants' lawyer) makes a pertinent point that the mufti's opinion remarkably fails to address the issue that is crucial for the purpose of the present constitutional challenge: what is the position in Islam as to the appropriate dress code for male Muslims who are sufferers of GID, like the appellants?" Hishamudin said in his written judgment.

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

Muhamad Juzaili Mohd Khamis, Shukor Jani and Wan Fairol Wan Ismail were the appellants in the case to declare Section 66 in the enactment as unconstitutional.

In 2013, the Seremban High Court had dismissed their judicial review application.

Without medical evidence to prove insanity, the appellate court also rubbished a claim by Iskandar Ali that transgenders who behaved and dressed as women were of unsound mind.

"Our answer to this is that in the absence of medical evidence, it is absurd and insulting to suggest that the appellants and other transgenders are persons of unsound mind," Hishamudin said.

The appellate court in a unanimous ruling had declared that Section 66 of the enactment was void as it violated the constitutional right of freedom of expression, movement and the right to live in dignity and equality.

The other judges on the bench were Datuk Aziah Ali and Datuk Lim Yee Lan.

Hishamudin said the provision in the enactment directly affected the appellants' right to live with dignity and deprived them of their worth as members of society.

According to court papers, the litigants are make-up artists who were arrested for dressing as women and had suffered deep-seated discrimination, harassment and even violence because of their gender identity disorder.

- TMI