Cross-dressing - transgenders seek review of apex court ruling

Three transgender make-up artists have gone to the Federal Court to try to nullify the apex court’s 2015 ruling that allowed a Negri Sembilan state law against cross-dressing to remain legal.

Shukur Jani, Wan Fairol Wan Ismail, and Muhammad Juzaili Mohd Khamis, through legal firm Fahri & Co, filed the notice of motion at the Federal Court Registry at Putrajaya on Sept 18 last year.

On Oct 8, 2015, the Federal Court had allowed an appeal by the Negeri Sembilan state government and its state religious council among others, to quash a related ruling at both the Court of Appeal and Seremban High Court.

This, in effect, allowed Section 66 of the Negeri Sembilan Syariah Offences Enactment which bars cross-dressing amongst males, to remain lawful.

According to a copy of the notice of motion sighted by Malaysiakini today, the three applicants named the Negri Sembilan state government, the state’s Islamic Affairs Department and its director, the state’s chief syariah enforcement officer, the state’s chief syariah prosecutor, and the state’s Islamic Religious Council as first to sixth respondents respectively.

According to the cause papers, the three applicants are seeking Federal Court leave to commence with their bid to review the Oct 8, 2015 order by the apex court.

They seek for a new Federal Court bench to rehear the appeals that were heard and decided upon by the initial apex court bench on Oct 8, 2015.

“The Federal Court had exceeded its jurisdiction, powers or discretion when it made the impugned judgment and allowed the appeals (on Oct 8, 2015),” they said through the notice of motion.

The trio said that this was because they had already been discharged from their related cross-dressing charges at the Syariah Court after the Federal Court granted leave to the Negri Sembilan state government among others to proceed with the appeal on Jan 27, 2015.

“There was no longer any matter of actual controversy between the parties which will affect them in any way.

“Thus, the appeals brought by the respondents, or the purported exercise of discretion by the judges of the Federal Court to make the decision, amounted to an abuse of process of this honourable court,” they said.

They claimed that the Oct 8, 2015 verdict resulted in injustice because it was inconsistent with Article 121(2)(a) of the Federal Constitution and Sections 96 and 74 (1) of the Courts of Judicature Act 1964, among others.

Section 121 of the Federal Constitution deals with the inherent jurisdiction of the courts in Malaysia.

Section 74 of the Courts of Judicature Act deals with the number of judges that should sit on a Federal Court bench before hearing an appeal, while Section 96 of the same act is in regards to the conditions for parties to fulfil before they can appeal to the apex court, among others.

According to the online cause list, the matter is listed for e-review (online teleconferencing) case management with the Federal Court Registry on June 26.

Previously, Juzaili, Shukur, and Wan Fairol, had sought a declaration that Section 66 of the Negeri Sembilan Islamic Enactment, that bars men from cross-dressing, was unconstitutional and against their rights under Articles 5(1), 8(2), 9(2) and 10 (1) (a) of the Federal Constitution.

Article 5(1) concerns the right to live with dignity and Article 8(1) states that all persons are equal before the law and entitled to equal protection of the law.

Article 8(2) states that there should not be gender discrimination while Article 9(2) is related to freedom of movement and Article 10(1) (a) is on freedom of expression.

Juzaili, Shukur and Wan Fairol lost their bid at the Seremban High Court but at the Court of Appeal on Nov 7, 2014, a three-member bench ruled in a landmark decision that Section 66 of the state law was unconstitutional and declared it null and void. - Mkini