'Federal Court made mistake in transgender case'

Retired Court of Appeals judge Mohd Hishamudin Mohd Yunus said the apex court got it wrong in allowing the preliminary objection raised by the Negeri Sembilan government in the landmark transgender case related to cross-dressing.

"It's a very disturbing decision and with due respect, I think the Federal Court got it wrong," Hishamudin said at a public forum titled 'Whither the Federal Constitution – Do fundamental and minority rights matter?' organised by the Bar Council in Kuala Lumpur today.

On Oct 8, the Federal Court had decided unanimously to allow the preliminary objection raised by the Negeri Sembilan government that the transgender women 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, which was raised before the Federal Court, was never raised in the High Court or the Court of Appeals.

It was also not listed as one of the issues when the Negeri Sembilan state applied for leave before the Federal Court, he said.

This means, he said, the state government only got leave on one issue, that is, whether Section 66 of the Negeri Sembilan Syariah Offences Enactment was in breach of fundamental Iiberties.

"With due respect, as a rule, the Federal Court should not have allowed it (the preliminary objection).

"You've never raised it in the High Court or the Court of Appeals, and when you applied for leave before us, you could have raised this issue but you didn't.

"You're contented to raise only one issue – whether Section 66 was in breach of fundamental Iiberties.

"So you should be contented with that, and be confined to that issue," he said.

Court of Appeal president Md Raus Sharif had said ‎the application should be made through a referral to the High Court and then directly to the Federal Court, not by way of judicial review, as in Article 4(3) and 4(4) of the Federal Constitution.

"As it is a challenge of the validity of the state law, it should go by referral to the Federal Court.

"Hence, we unanimously set aside the judgments of the High Court and the Court of Appeal on the judicial review application as it is an incompetent substantive procedure of non-compliance of Article 4(3) and 4(4) of the Federal Constitution," Justice Md Raus had said.

Article 4 cited by Justice Md Raus is on the supreme law of the federation and clauses (3) and (4) state:

• (3) The validity of any law made by Parliament or the Legislature of any State shall not be questioned on the ground that it makes provision with respect to any matter with respect to which Parliament or, as the case may be, the Legislature of the State, has no power to make laws, except in proceedings for a declaration that the law is invalid on that ground; or
• 3(a) if the law was made by Parliament, in proceedings between the Federation and one or more States;
• 3(b) if the law was made by the Legislature of a State, in proceedings between the Federation and that State.
• (4) Proceedings for a declaration that a law is invalid on the ground mentioned in Clause (3) (not being proceedings falling within paragraph (a) or (b) of the clause) shall not be commenced without the leave of a judge of the Federal Court; and the Federation shall be entitled to be a party to any such proceedings, and so shall any State that would or might be a party to proceedings brought for the same purpose under paragraph (a) or (b) of the Clause.

Economic progress correlates with rights

Meanwhile, fellow retired Court of Appeals judge Ariff Md Yusof said there is a correlation between a country's economic progress and its respect for fundamental rights.

"The countries with the best record in terms of cultural, economic development, and so on, are the countries with the highest respect for human rights," he said when met by reporters after the forum.

Ariff lamented that Malaysia could be doing much better on both human rights and economic progress.

The country could still progress economically, even if it does not have a strong respect for fundamental rights, he admitted, saying that there are many models to achieve progress.

However, this progress will eventually plateau if fundamental rights are not recognised, he warned.

"There's a degree of progress. Certain countries, even communist countries, they do progress.

"But they will reach a point where they will have to respect human rights. Otherwise you get stagnant," he said.

-Mkini