The Federal Court has today granted leave to the Negri Sembilan government to appeal the Court of Appeal’s judgment that upheld the rights of transgenders to cross-dress.

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

In its appeal for leave, the Negri Sembilan government had posed seven questions.However the parties involved could not find common ground on them.

 

This resulted in Court of Appeal president Justice Md Raus Sharif being able to draft only a single question.

 

"We grant leave, but only allow one question. The question is whether Section 66 of the Syariah Criminal Enactment (Negri Sembilan) 1992 is contrary to Article 5(1), 8(1), 8(2), 9(2) and 10(1) (a)," he announced.

 

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

Article 8(2) states there should not be gender discrimination, Article 9(2) is with regards to freedom of movement and Article 10(1) (a) is about freedom of expression.

 

Earlier, the parties had an hour’s break to find common ground to discuss the questions but the Negri Sembilan government and counsel for the transgenders could not concur.

 

Justice Md Raus said an early date will be fixed for case management.

 

Constitutional challenge

Muhamad Juzaili Mohamad Khamis, 26, Syukor Jani, 28, and Wan Fairol Wan Ismail, 30, had 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.

 

Initially, a fourth person had filed the appeal with them, but he has since withdrawn.

 

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

 

Those government departments are the appellants in this case along with the Negeri Sembilan Islamic Council.

 

It was previously reported that six Islamic councils had applied to be interveners to the appeal but the apex court only allowed only Negeri Sembilan.

 

Landmark decision

 

Court of Appeal judge Justice Hishamuddin Mohd Yunus in a landmark decision had declared that although Islam is the religion of the federation, it is still subject to other provisions in the constitution including fundamental liberties.

 

He thus declared Section 66 of the enactment null and void as it ran contrary to the five articles.

 

The case which initially began in Seremban following the continuous arrests of transgenders who were subjected to fines and imprisonment, also captured international attention following the presence of observers from the International Commission of Jurists in the trial.

 

There are several other organisations including the Bar Council and Umno who are holding watching briefs in this case.

Senior lawyer Muhammad Shafee Abdullah and Negeri Sembilan state legal advisor Iskandar Ali Dewa appeared for the Negeri Sembilan government while lawyers Aston Paiva ( left ) and Fahri Azzat appeared for the three transgenders.

 

Senior lawyer and former Bar Council president Sulaiman Abdullah is appearing for the Negeri Sembilan Islamic Council.

 

It was previously reported the judgment by the Court of Appeal created alarm bells when it was delivered last November.

It even resulted in a Friday sermon topic over lesbians, gays, bisexuals and transexuals  being delivered a week after the decision.

 

It also led the various state Islamic councils to appear as interveners as seen today.

 

Negeri Sembilan, other states which have similar anti cross-dressing laws are Perlis, Kelantan, Kedah and Sabah. However, they did not apply to be interveners.

Shafee, in commenting on today's decision, said case management date will be fixed within a month in order for parties to file documents.

 

Justice for Sisters volunteer S Thilaga said it was neutral on what was happening today but was happy that the questions were based on the constitution and not moral law.

"We should instead be investigating abuses against the transgender community as Malaysia is part of the United Nations Security Council.

"The problem is that the Negeri Sembilan Syariah Court does not want to acquit the arrested transgenders under this enactment despite the appellate court’s decision," she held.