Seven questions of law including the jurisdiction of the civil courts to declare a Syariah law as void and unconstitutional, will be posed by the Negri Sembilan government.

This is in its appeal in the landmark case involving three transgenders.

These questions will be evaluated by the five-member Federal Court bench tomorrow, before deciding whether to grant the Negri Sembilan government leave to appeal.

In November, the Court of Appeal had declared Section 66 of the Negri Sembilan Syariah Criminal Enactment as unconstitutional and null and void. The state enactment bars males from cross-dressing as women in public.

 

Should permission be granted the Federal Court would then decide at another date as to the submissions to these questions or a combination of the questions that they may approve tomorrow.

 

If the appeal fails tomorrow, the landmark Court of Appeal judgment that states Islam despite being the religion of the federation, is still subject to the limitations imposed by the Federal Constitution regarding fundamental liberties, still stands.

The seven questions of law relating to constitutional issues are:

  • Does the ordinary court of law have jurisdiction to nullify Section 66 of the Syariah Criminal Enactment in view of Article 121 (1A) of the Federal Constitution regarding the formation of the Syariah Courts?
  • If the above question is affirmative, then the law was enacted by the state legislature and does not such a law being part of the Islamic law governing Muslims, constitute the latter's personal law as well?

If the answer to the above is also in the positive it does not matter by virtue of Article 121(1A) within the sole jurisdiction of the Syariah Court and therefore not amenable to challenge in the ordinary court of law by way of judicial review or otherwise?

In order to determine if Section 66 contravenes Article 5(1), 8(1), 8(2), 9(1) and 10 (1)(a) either individually or collectively, should not the Court of Appeal consider whether a reasonable interpretation of that section may not necessarily impact the rights provided under the said constitutional provisions?

  • If the answer to question three is affirmative, is the appellate court decision to nullify Section 66 premature considering the evidence by the respondents (the three transgenders) through affidavits only remains untested or contrasted from a trial for the offenses under the said section before the Syariah Court?
  • Bearing in mind that the court should, as far as possible, interpret any law reasonably and consonant with the constitution, was the Court of Appeal right in holding Section 66 infringes or inconsistent with the five Articles read with Article 4(1) of the constitution.
  • Is it not premature for the Court of Appeal in making such rulings devoid of such inquiry in regular trial before the Syariah Court of competent jurisdiction.
  • Should a male person with Gender Identity disorder charged under Section 66 raise this (GID) medical condition, as a specific defence for him and that the matter that has to be considered by the state syariah court in a criminal proceeding? 
    • Muhamad Juzaili Mohamad Khamis, 26, Syukor Jani, 28, and Wan Fairol Wan Ismail, 30, filed the constitutional challenge against Section 66 of the Syariah Criminal (Negri Sembilan) Enactment 1992 on Feb 2, 2011, under which a person convicted can be jailed up to six months and fined up to RM1,000 by the syariah court.

     

    They named the Negri Sembilan state government, the state Islamic Affairs Department and its director, the syariah enforcement chief and prosecution chief as respondents.

     

    Initially there were four but the other withdrew from the appeal when the landmark decision was made by the Court of Appeal last November.

     

    The decision had raised eyebrows locally but was welcomed internationally following the court's recognition of transgenders and that such laws are discriminatory in nature.

     

    Four other states besides Negri Sembilan, namely Perlis, Kelantan, Kedah and Sabah - have state Islamic provisions barring cross-dressing and making it an offence.

     

    Besides the Negri Sembilan legal adviser, senior Umno-linked lawyer, Muhammad Shafee Abdullah is appearing for the state government, while lawyers Aston Paiva and Fahri Azzat are appearing for the transgenders.