Court of Appeal: Islamic laws subject to Federal Constitution

Section 66 of the Negeri Sembilan Syariah Criminal Enactment 1992 ruled unconstitutional, null and void.

KUALA LUMPUR: The Court of Appeal, in a 46-page written judgment, has declared Section 66 of the Negeri Sembilan Syariah Criminal Enactment 1992, which bars men from cross-dressing as females in public as unconstitutional and void.

Judge Mohd Hishamudin Yunus said the transgenders’ case had merits.

Islam, the religion of the Federation, as defined under Article 3(1) of the Federal Constitution, is subject to the limitations of the fundamental liberties of a person, the Court held. “Article 4(1) of the Federal Constitution declares the constitution as the supreme law and any law running contrary to the constitution shall be considered void.”

Justice Hishamudin cited Che Omar bin Che Soh v Public Prosecutor, a judgment by former lord president Salleh Abbas.

The word Islam in Article 3(1) has a restrictive meaning based on Article 3(4), which states that nothing in this Article derogates from any other provision of the constitution.

“As long as Section 66 is in force, the appellants (the four transgenders or mak nyah’) will continue to live in uncertainty, misery and indignity. They now come before this court in the hope that they may be able to live with dignity and be treated as equal citizens of this nation,” said Justice Hishamudin in the unanimous judgment.

“We therefore hold that Section 66 is inconsistent with Article 5(1) of the Federal Constitution in that the section deprives the appellants of their right to live with dignity.”

Articles 5 to 13 stipulate the rights of citizens of Malaysia, which are listed as Part II of the Federal Constitution.

Article 5(1) states that no person shall be deprived of his life or personal liberty, save in accordance with law.

The Court of Appeal ruled on November 7 last year that transgenders have a gender identity disorder. It then declared Section 66 of the Negeri Sembilan Syariah law, which subjects transgenders to frequent arrests, as null and void.

The Negeri Sembilan government has filed an Application for Leave to appeal the decision. It will be heard by the Federal Court on Tuesday.