On Friday, 7 November 2014, the Court of Appeal, Malaysia's second highest court, in a landmark judgement, declared that Section 66 of the Syariah Criminal (Negri Sembilan) Enactment 1992 violated several Articles of the Federal Constitution
A three-member panel led by Justice Datuk Mohd Hishamudin Mohd Yunus, allowing the appeal of three transgenders, recognised the rights of transgender Muslims who suffered from gender dysphoria where they dress and behave like women
During the ruling, Judge Mohamad Yunus said the "degrading, oppressive and inhumane" law discriminated against people with gender issues, adding that criminalising cross-dressing is an unreasonable restriction of a person's freedom of expression.
In Malaysia, where gender issues and homosexuality continue to remain a taboo topic, all Muslims are subject to Islamic laws, under a double-track legal system. Under those laws Muslim men dressing or acting as women is illegal.
The appellants' lawyer said the ruling in the religiously conservative country would be "historic". "This will be a precedent. This court binds all other high courts," Aston Paiva was quoted as saying by AFP news agency.bbc.com
The unanimous ruling can be set as a precedent for similar laws enacted by other states and the Federal Territory. Previously, it was an offence for Muslim men to dress and behave as women.
"We are allowing the declaration sought by the (three) appellants and setting aside the decision of the High Court," Judge Mohd Hishamuddin Mohd Yunus said. “A person’s dress, attire or article of clothing are a form of expression, which in our view is guaranteed under Article 10 (freedom of expression),” he said yesterday.themalaysianinsider.com
Currently, Section 66 allows the Syariah Court to punish any man who dresses or poses as a woman with up to six months in prison or be fined a maximum RM1,000; regardless of whether they had Gender Identity Disorder (GID). “Clearly, the restriction imposed on the appellants and other GID sufferers is unreasonable. Thus, from the aspect of reasonableness, Section 66 is unconstitutional,” ruled Justice Mohd Hishamudin.thestar.com.my
The panel, which included Justices Aziah Ali and Lim Yee Lan, agreed that Gender Identity Disorder (GID) was a mental condition which could not be changed through therapy or pharmaceuticals, and thus, was an intrinsic part of an affected individual
“(Under Section 66) they cannot dress in a way that is natural to them, as it leaves them liable to arrest, detention and prosecution. This is degrading, oppressive and inhuman,” said Justice Mohd Hishamudin.thestar.com.my
Hishamuddin said the court also found that the High Court judge had made remarks and findings that were contrary to evidence and tainted by unscientific personal prejudice. "We note with much disquiet that the learned judge seemed particularly transfixed with homosexual relationships in her reasoning.themalaysianinsider.com
“The High Court’s remarks are unsupported by, and contrary to, evidence and is tainted by unscientific personal feelings or personal prejudice,” said Justice Mohd Hishamudin. "We wish to stress here that such reasoning is without basis and grossly unfair to the appellants and other male sufferers of gender-identity disorder (GID)," he said.thestar.com.my
Speaking to reporters, counsel Aston Paiva, who represented the transgender appellants, said that while cross dressers could still be arrested, they were now empowered to challenge it at High Court
The judicial review filed to the Seremban High Court on Feb 2, 2011, named the Negri Sembilan state government, its Islamic Affairs department and director, the state’s Syariah enforcement chief, and prosecution chief, as respondents. The applicants – Muhamad Juzaili Mohd Khamis, 26, Shukor Jani, 28, and Wan Fairol Wan Ismail, 30 – are also seeking a court order to prohibit their arrest and prosecution under the section.thestar.com.my
The High Court dismissed the review on Oct 11, 2012, ruling that by virtue of the applicants being born male and being Muslims, their rights under the Constitution are to be disregarded.astroawani.com
Following the decision, non-governmental organisation Justice for Sisters advocacy manager Nisha Ayub, who welcomed the latest ruling, said that it is a great step for all transgenders in the country
“We will spreading the word on the landmark decision to transgenders in other states so that they can be encouraged to challenge similar laws that are enforced there as well,” she said when met outside the court.therakyatpost.com
The Centre for Independent Journalism (CIJ) applauded the court’s decision, with CIJ directors Sonia Randhawa and Jac Kee saying that the decision “affirms the Constitution’s position as the supreme law of the land”.thestar.com.my
Human Rights Watch, which has listed Malaysia as one of the worst places in which to be a transgender person, welcomed the decision
"This is a win for all Malaysians, as the constitution protects us all, irrespective of ethnicity, gender and class," Ivy Josiah of the Women's Aid Organisation told Reuters. "Surely no court, civil or Sharia, can refute the fact that human dignity is paramount."bbc.com