A provision in the Syariah Criminal (Negri Sembilan) Enactment is unconstitutional as it punishes males who dress as females and not vice versa, a lawyer submitted today.

 

Aston Paiva, who is representing three transgender individuals, said they were discriminated in their daily lives due to Section 66 of the enactment where a person who is convicted, stands to face a fine of up to RM1,000 or six months imprisonment.

 

He said that this section violates Articles 5 which deals with equality before the law, 9(1) which deals with freedom of movement, 10(2) which deals with freedom of expression and 8 (no gender discrimination).

 

Aston ( left ) said the legislation is a discrimination to this minority community  just because they are different.

 

"All of my clients have been arrested by the Negri Sembilan religious authorities and at one instance the authorities had barged into their homes to arrest them," he said.

 

"Furthermore, there are seven states in Malaysia which further refine the law in punishing men who dress as women and engage in immoral activities.

 

This, the lawyer said showed the discrimination of the state legislation as it could be applied to any man who dresses as a woman.

 

"However, my clients are not engaged in such acts but were arrested by the authorities for meeting their friends and going to work," he said.

 

He added one even sustained injuries while being arrested by overzealous officers.

 

Aston said this happened when religious authorities was chasing one of the appellants on the street when he was meeting a friend at night to give some make-up. In the process he ran and hid in a hotel storeroom.

 

“The authorities broke down the storeroom door. The appellant’s chest was even stepped on and he was even hit him in the face.

"He was then arrested without being told for what offence. After he was taken to the religious enforcement department, he was also not told his offence,” he said.

 

Aston added his clients had been medically and psychologically assessed and that their condition is not reversible as they are "females trapped in male bodies".

 

The Seremban High Court had in October 2012 had dismissed the application by these four transgender individuals aged 28 to 30 to declare Section 66 as unconstitutional.

 

The four, Muhamad Juzaili Mohd Khamis, Shukor Jani, Wan Fairol Wan Ismail, and Adam Shazrul Mohd Yusoff, had named the Negri Sembilan Islamic Affairs Department, its director, chief syariah enforcement officer, chief syariah prosecutor and the state government as respondents.

 

However, Adam Shazrul had withdrawn himself in this appeal. They work as mak andam or bridal make-up artists. This is seen as a test case over the rights of transexuals which is a controversial subject in this country.

Aston said recently in India following a court case last month, the constitution recognises there should not be discrimination over what the people chose to wear and this included transsexuals.
 
"In New Zealand and in the United Kingdom there are mayors who are transsexuals. By discriminating or alienating against this sector in the community, the country will miss out on a potential labour force."

Closely watched

The appeal is being heard before a three member panel chaired by Justice Mohd Hishamudin Mohd Yunus.

 

The other judges are Justice Aziah Ali and Justice Lim Yee Lan.

 

The appeal is being observed by the Human Rights Watch and the Bar Council which have been granted amicus curiae (friends of the court) status.

 

Several non-governmental organisations are also holding watching briefs including the Malaysian AIDS Council, Sisters in Islam, Women's Aid Organisation and Empower.

 

Bar Council representative Syahredzan Johan ( left ) submitted that constitutional rights should remain supreme to state law.

 

“Any form of Islamic law legislated by the state should be given lesser treatment as the constitution remains supreme,” he held

 

Syahredzan further cited that the Seremban High Court judge had erred in considering Section 66 as constitutional just because they are men and Muslims, and that this goes against the principles of equality of the law, as enshrined in the constitution.

 

Leave granted

 

Previously it was reported that the four appellants were granted permission to initiate the judicial review application by then Seremban High Court judge Rosnani Saub on Nov 4, 2011.

 

They are seeking several declarations, including that Section 66 of the Syariah Criminal (Negri Sembilan) Enactment 1992 is inconsistent with Article 8(2), Article 10 (1) (a), Article 5(1) and Article 8(1), Article 9(2).

 

Alternatively, they are seeking a declaration that Section 66 has no effect and is not applicable to them, as they are psychologically women or have gender identity disorders.

 

They are also seeking an order to prohibit the chief syariah enforcement officer or his agents from taking action or conducting or continuing investigations on them, besides other relief deemed fit by the court and costs of their application.

 

However, when the judicial review was heard before Justice Mariah Ahmad, she dismissed their application when she ruled that as Muslims they should not question the laws enacted as they were formulated based on the constitution, and based on the Koran and hadis.

 

The Court of Appeal has yet to hear submissions from Human Rights Watch and the reply from Negri Sembilan state legal adviser, Iskandar Ali Dewa.

 

Justice Mohd Hishamudin has fixed July 17 to continue the hearing.