The Federal Court today set aside, on grounds of technicality, the decisions of the Court of Appeal and High Court in Seremban on the Negeri Sembilan transgender case related to cross-dressing by three transgenders.

With this, the impugned state law, Section 66 of the Negeri Sembilan Syariah Offences Enactment which bars cross-dressing of males as females, remains legal.

In its unanimous decision, the Federal Court allowed the preliminary objection raised by the Negeri Sembilan government that the transgenders' application should not be by way of judicial review.

Court of Appeal President Md Raus Sharif ( photo ) said ‎the application should be made through a referral to the High Court and then directly to the Federal Court, not by way of judicial review, as in Article 4(3) and 4(4) of the Federal Constitution.

"As it is a challenge of the validity of the state law, it should go by referral to the Federal Court.

"Hence, we unanimously set aside the judgments of the High Court and the Court of Appeal on the judicial review application as it is an incompetent substantive procedure of non-compliance of Article 4(3) and 4(4) of the Federal Constitution," Justice Raus said.

He declared that the decisions of the court below as void ab initio (Latin for void from the start) as the appellants should have, in their petition, applied for leave before the Federal Court to ask the question.

The court did not make an order as to costs.

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).

Article 4 cited by Justice Md Raus is on the supreme law of the federation and clauses (3) and (4) state:

(3) The validity of any law made by Parliament or the Legislature of any State shall not be questioned on the ground that it makes provision with respect to any matter with respect to which Parliament or, as the case may be, the Legislature of the State, has no power to make laws, except in proceedings for a declaration that the law is invalid on that ground; or

(a) if the law was made by Parliament, in proceedings between the Federation and one or more States;

(b) if the law was made by the Legislature of a State, in proceedings between the Federation and that State.

(4) Proceedings for a declaration that a law is invalid on the ground mentioned in Clause (3) (not being proceedings falling within paragraph (a) or (b) of the Clause) shall not be commenced without the leave of a judge of the Federal Court; and the Federation shall be entitled to be a party to any such proceedings, and so shall any State that would or might be a party to proceedings brought for the same purpose under paragraph (a) or (b) of the Clause.

The other judges on the five-member bench were Federal Court judges Ahmad Ma'arop, Hasan Lah, Azahar Mohamed and Zaharah Ibrahim.

Allah judgment quoted

Justice Md Raus quoted the judgment of Chief Justice Arifin Zakaria in the Archbishop of Catholic Church vs The Home Ministry case as a basis in allowing the preliminary objection.

In that decision, Justice Arifin said the issue was whether the High Court judge could entertain such a challenge (by the Home Ministry) in light of specific procedure in clauses (3) and (4) of Article 4 of the Federal Constitution. For this, the respective states should be made a party for the state to be given an opportunity to defend the validity or constitutionality of the impugned provision.

"I hold the view that the High Court judge ought not to have entertained the challenge of the validity or constitutionality of the impugned provisions for two reasons, namely procedural non-compliance and for want of jurisdiction. The findings by the High Court judge that the impugned provision is unconstitutional was rightly set aside by the Court of Appeal," the top judge had said.

Before the start of today's verdict delivery, the NGO Justice for Sisters distributed a handbook titled ‘Panduan media tentang identiti gender dan individu dan komuniti transgender’ (Press guide to the transgender community).

Today's decision also saw observers from local NGOs, foreign embassy officials and international human rights groups in the public gallery.

Transgenders seeking their rights

The three transgenders, Muhamad Juzaili Mohd Khamis, Shukor Jani and Wan Fairol Wan Ismail, sought a declaration that Section 66 of the Negeri Sembilan Islamic enactment that bars men from cross-dressing as women to be unconstitutional to 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 equal protection of the law.

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

Juzaili, Shukor and Wan Fairol lost their bid in the High Court but in the Court of Appeal, a three-member bench ruled in a landmark decision that Section 66 of the state law was unconstitutional and declared it null and void.

Counsel Aston Paiva, who is representing the three transgenders, said he and his colleagues would seek further instructions from their clients on the next course of action, and whether to submit the referral direct to the Federal Court.

Aston added that the lawyers would also have to ascertain whether their clients were continuously being discriminated against through the use of Section 66.

"What is important is the substantive Court of Appeal judgment that recognises the rights of the transgender community stands," Aston said.

Justice for Sisters spokesperson S Thilaga ( photo ) told reporters that she concurred that the lawyers have to seek instructions from Juzaili, Shukor and Wan Fairol before, and she went on to hail the case for having created awareness on the plight of the transgender community and their rights.

"We will have to see if that state law is being used as we are concerned that they may be subjected to detention and persecution," Thilaga said.

Negeri Sembilan government lawyer Muhammad Shafee Abdullah said the decision meant Section 66 is still considered legal and constitutional.