Negeri Sembilan To Challenge Court Of Appeal's Striking Down Of Cross Dressing Ban

The Negeri Sembilan government will file an appeal to the Federal Court on the Court of Appeal's decision declaring that the state's Islamic Enactment banning cross-dressing by Muslim men contravened the Federal Constitution.

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Bid to challenge cross-dressing ruling invoked wrong legal procedure, argues State’s counsel

Muhamad Juzaili Mohd Khamis, Shukor Jani and Wan Fairol Wan Ismail.

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Negri Sembilan's appeal against a Court of Appeal ruling, which declared unconstitutional a law for punishing Muslims who cross dress, took a twist when its lawyer raised a preliminary objection.

Counsel Tan Sri Muhammad Shafee Abdullah today told a five-man Federal Court bench led by Tan Sri Raus Sharif that the three transwomen had used the wrong mode to challenge the state religious enactment.

Shafee said the three should have invoked Article 4 of the Federal Constitution to go straight to the Federal Court and obtain leave since they were challenging a state law that is against human rights.

Shafee said the three should have invoked Article 4 of the Federal Constitution to go straight to the Federal Court and obtain leave since they were challenging a state law that is against human rights.He said the transgenders' appeal was premature because the Seremban Shariah Court had not made a decision after the trio were charged.

"They should have waited for the religious court to make a ruling before coming to the civil court."

5 DEC: Earlier in November, the Court of Appeal in its ruling against Syariah Criminal Enactment 1992, that criminalises Muslim men cross dressing in public, declared Section 66 as unconstitutional

But now, as per a report by Bernama, the Negeri Sembilan state government will file an appeal to the Federal Court against Malaysia's second highest court's landmark judgement

Transgender activist Nisha Ayub (centre) and supporters of the Justice for Sisters movement, on 22 May 2014

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The Negeri Sembilan government will appeal on two legal aspects on the Court of Appeal’s decision in declaring the Negeri Sembilan Islamic religious enactment barring cross-dressing by Muslim men in public places as unconstitutional.

Menteri Besar Datuk Seri Mohamad Hasan said the state government was discussing the facts of the case with the lawyers and hoped to file the appeal before 6 December.

Menteri Besar Mohamad Hasan said although the state government respected the decision, it was of the opinion that the case should be reviewed by the Federal Court because Section 66 should be looked from the religious point of view, and not from other aspects

"We have ample grounds for appeal to strike out the Court of Appeal’s judgement."

"We are not so angry or disappointed that the three individuals involved were discharged but to declare Section 66 as invalid is very dangerous."

"It will set a precedent for those who want to promote pluralism, liberalism and other such ideologies in the country," he said while closing the 'Konvesyen Akidah Antarabangsa 2014.'

"So, we will emphasise that this law comes from religious sources. So, I will file an appeal as soon as possible and I will also get the Negeri Sembilan Islamic Religious Council (Mains) as an interjector and I hope other state Islamic councils will also join us as interjectors in the appeal."

He said this was a very important case and if not addressed accordingly, would be destructive for Malaysia and bring about negative implications to the status of Islam in the country

"We will hire a good lawyer to file the appeal," he said without specifying when the appeal will be filed.

Earlier, several conservative Muslim clerics have criticised the ruling, arguing that the decision strayed from legal precedents set by the Federal Court and creating a disturbing proviso that threatens the identity and core of their faith

Perak Mufti Harussani Zakaria called the judgment a challenge to God’s laws as it permitted that which is forbidden to Muslims, and warned that it would open the door to greater sinful acts, which will draw down God’s wrath in the form of disasters.

The senior Islamic cleric further warned that such a judgment will open the doors for anyone to freely commit sin, but added that society will ultimately pay the price when disaster strikes.

“The Prophet’s hadith (Prophet Muhammad’s sayings) says men who resemble women and women who resemble men are cursed by Allah. The Court of Appeal’s action can be likened to permitting that which is forbidden and creating confusion among Muslims”, he said in remarks published by the Malay broadsheet Mingguan Malaysia.

The Islamic law had been used by the state in cracking down on its Muslim transgender community and many hope the victory will help advocates of fundamental liberties amid growing unease over the creep of religious conservatism in government

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“A semblance of sanity has returned with this judgment,” said Ms Ambiga Sreenevasan, a lawyer and the former head of the Malaysian Bar Council, who was in the courtroom for the decision on Friday in the administrative capital of Putrajaya.

“The words ‘human dignity’ were repeated many times in the judgment,” she said. “It brings us back to fundamental liberties.”

Although lawyers described Friday’s decision as a landmark judgment, it was also limited, according to Mr Fahri Azzat, a lawyer representing the three hairdressers who had brought the case.

The judgment is subject to appeal and is applicable only to Negeri Sembilan. Similar bans in other Malaysian states remain intact, Mr Fahri said.


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