The Star A Humble Submission by Syahredzan Johan
RECENTLY,
the Court of Appeal delivered a decision that rocked the nation. It
allowed the appeal of three transgender persons who had challenged the
constitutionality of Section 66 of the Negri Sembilan Syariah Criminal
Enactment.
The
Court, chaired by Justice Mohd Hishamudin Mohd Yunus, unanimously found
that the said Section violated Articles 5, 8, 9 and 10 of the Federal
Constitution and as such, unconstitutional.
The
Section provides that any Muslim male who is found to be wearing
women’s attire or posing as a woman is guilty of an offence and may be
punished by way of a fine of not more than RM10,000.00, or imprisonment
of not more than 6 months or both.
The
three appellants in the case are physically male. Yet, they are not
like any normal male person. They, in fact, suffer from a medical
condition known as "gender identity disorder" (GID). Those who suffer
from GID, although they are born physically male, feel that they are
women. They express themselves as women and exhibit mannerisms of the
female gender, such as wearing women’s clothes and make-up.
The
three appellants tendered medical evidence of their condition from no
less than three experts. From the reports, it was established that GID
is not "curable" and is permanent. The reports also established that the
female mannerisms of the three appellants was not something they chose,
nor could they do anything about it. The Negri Sembilan government, in
responding to the suit brought about by the three appellants, did not
rebut the medical evidence that was presented.
As
a result of their medical condition, the three have constantly been
harassed, arrested, detained and charged by the religious authority in
Negri Sembilan, acting under Section 66 of the Enactment. It was
difficult for them to even step out of their house and live their lives
as normal persons as they were constantly subjected to the enforcement
of the law.
Imagine,
being punished for a medical condition that one can do nothing about.
Imagine, if it was another medical condition that was criminalised,
instead of GID.
Based
on this, the appellants claimed that their fundamental liberties
enshrined in the Federal Constitution had been violated by Section 66 of
the said Enactment. They claimed that their right to life under Article
5, right to equality and non-discrimination under Article 8, freedom of
movement under Article 9 and the right to freedom of speech and
expression under Article 10(1)(a) have all been violated by the
authority pursuant to the said Section 66.
Although
the individual states have jurisdiction to enact laws pertaining to the
religion of Islam, including Syariah criminal laws such as Section 66
of the Enactment, these laws must still be consistent with the highest
law of the land - the Federal Constitution.
As
stated by Datuk Dr Shad Saleem Faruqi in a recent article, it is the
Constitution, and not the Syariah, that is the litmus test of
constitutionality. Even though Article 3(1) of the Constitution declared
that Islam is the religion of the Federation, this Article does not
override all other constitutional provisions. Even Syariah enactments
must fall within the ambit of the Constitution and must not deny the
rights of minorities.
There
is no proviso in Section 66 of the Enactment that excludes GID
sufferers from the criminal sanctions. If there were such a proviso, it
could be argued that the Section can be saved from being declared as
unconstitutional. Yet, the law as it stood made no such distinction and
thus violated the constitutional rights of GID sufferers such as the
appellants.
This
case should not be seen as a challenge to the Syariah. If we take away
the Syariah label, the same principles should still apply to determine
the constitutionality of the provision. Nor should this case be seen as
acknowledging LBGT rights, such as "opening the doors" to same-sex
marriages, as alleged by certain quarters. All that the three appellants
were seeking through the due process of the law was simply to live as
human beings, free from harassment and punishment for something they did
not choose nor could do anything about.
* Syahredzan Johan is a lawyer and appeared as amicus curiae in the case for the Bar Council.
> The views expressed are entirely the writer's own.
Click
here to access a copy of the brief judgment of the Court of Appeal, dated 7 Nov 2014.
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