The Court of Appeal as well as the Seremban High Court have erred in entertaining the application for a judicial review by three transgenders, said lawyer Shafee Abdullah.

This is with regard to declaring invalid and unconstitutional section 66 of the Negri Sembilan Syariah Criminal (Negri Sembilan) Enactment 1992 which criminalises Muslim men for cross-dressing.

Shafee is representing the Negri Sembilan government, the Negri Sembilan Department of Islamic Religious Affairs; its director; the Negeri Sembilan Syariah enforcement chief and the Negri Sembilan chief syarie prosecutor against a Court of Appeal landmark decision declaring invalid the abovementioned state Syariah enactment.

In the appeal heard at the Federal Court today, Shafee said the two courts did not have jurisdiction to entertain such a challenge as the Federal Constitution does not state that they can do so.

The prominent lawyer also queried whether action had been taken in a premature manner. This is because the transgenders had only been charged with the offence at the Shariah Court.

He contended that should the judges agree with the two issues raised by him today, therefore the decisions made by the Court of Appeal and the Seremban High Court would thus be overturned.

In their judicial review application, the transgenders- Muhamad Juzaili Mohd Khamis, Shukor Jani and Wan Fairol Wan Ismail- who were bridal make-up artists, claimed that section 66 did not apply to them as they suffer from gender identity disorder.

Challenge can be raised at any time

Meanwhile, Shafee further told the five-man Federal Court bench led by Justice Md Raus Sharif ( photo ) today that instead of applying for a judicial review, the transgenders should have instead gone straight to the Federal Court to obtain leave, in line with Article 4 of the Constitution.

He also gave an example of how the Federal Court had, in the case of the Malaysian Catholic Church's fight in the use of the word "Allah", ruled that Article 4 takes precedence when a constitutional issue is raised.

Lawyer Aston Paiva who represents the transgenders however argued that a constitutional challenge could be raised at any time and that a leave from the Federal Court need not be obtained.

He also pointed out how his clients had already been arrested previously before seeking the judicial review and pointed out how Article 4 of the Constitution had never cropped up before this.

Meanwhile, a date has not been set for the decision on today's arguments raised by Shafee.

"If we are not in agreement (with your arguments), we will have another session, a longer session," Justice Raus told Shafee.

On Nov 7, last year, the Court of Appeal granted an appeal brought by the three transgenders and declared invalid and unconstitutional section 66 of the Negri Sembilan Syariah Criminal (Negri Sembilan) Enactment 1992.

On Jan 27, a five-member panel of the Federal Court led by Justice Raus allowed the application for leave to appeal against the Court of Appeal's decision on one legal question which was supposed to be deliberated and determined by the Federal Court at the appeal hearing today.

The question of law which was framed by the court is whether section 66 contravened Article 5(1), Article 8(1), Article 8(2), Article 9(2) and Article 10(1)(a) of the Constitution.

Article 5 relates to a citizen’s right to life and liberty while Article 8 is on equality. Article 9 deals with prohibition of banishment and the right of a citizen to move around, and Article 10 is concerned with a citizen’s right to freedom of expression.