Islamic law is subject to the Federal Constitution, says Court of Appeal

KUALA LUMPUR - State Islamic laws cannot violate Malaysians’ fundamental freedoms that are protected in the Federal Constitution as legislations contradicting the constitution are deemed void, the Court of Appeal said in its written judgment on a landmark transgender case.

A three-judge panel of Malaysia’s second highest court ruled that Section 66 of the Negri Sembilan Syariah Criminal Enactment 1992, which prohibits Muslim men from cross-dressing, was unconstitutional and void as the state law contravened a slew of fundamental liberties, which are personal liberty, equality, freedom of movement and freedom of expression.

“Reading Art. 74(3) and Art. 4(1) together, it is clear (and this legal position is not disputed) that all State laws, including Islamic laws passed by State 11 legislatures, must be consistent with Part II of the Federal Constitution (which guarantees the fundamental liberties of all Malaysians),” the Court of Appeal wrote in its brief judgment.

Article 74(3) of the Federal Constitution states that the power to make laws is subject to conditions or restrictions imposed by the constitution.

Article 4(1) of the Federal Constitution says the constitution is the supreme law of the federation and that laws inconsistent with it shall be void.

The appellate court ruled last Friday in favour of three Muslim transgender men ― Muhamad Juzaili Mohd Khamis, Shukur Jani and Wan Fairol Wan Ismail ― who were convicted of cross-dressing under the Negri Sembilan shariah law that punishes Muslim men who wear women’s attire with a fine not exceeding RM1,000, or jail of not more than six months, or both.

The court panel ― comprising Justices Datuk Mohd Hishamudin Yunus, Datuk Aziah Ali and Datuk Lim Yee Lan ― had said the law was discriminatory as it failed to recognise men diagnosed with gender identity disorder (GID).

In its written judgment, the Court of Appeal noted that the evidence by two psychiatrists and one clinical psychologist on the three transgender men who suffer from GID, or who identify themselves as women, was not rebutted.

According to psychiatrist Dr Ang Jin Kiat, cross-dressing is intrinsic to the nature of the three men suffering from GID and their condition is incurable.

The court also cited evidence from consultant psychiatrist Dr Deva Dass, who said a man suffering from GID feels he should have been the other gender, a “female spirit trapped in a male body”.

The appellate court pointed out that Section 66 of the Negri Sembilan Shariah Criminal Enactment did not provide an exception for those who suffer from GID.

“As a consequence, section 66 places the GID sufferers in an untenable and horrible situation,” said the court.

“They could not dress in public in the way that is natural to them. They will commit the crime of offending section 66 the very moment they leave their homes to attend to the basic needs of life, to earn a living, or to socialise; and be liable to arrest, detention and prosecution. This is degrading, oppressive and inhuman,” the court added.

The Court of Appeal further noted that the Negri Sembilan Mufti’s opinion that a Muslim man dressing as a woman violated Islamic precepts failed to address GID sufferers.

“What is the position in Islam as to the appropriate dress code for male Muslims who are sufferers of GID, like the appellants?” the court questioned.