Court of Appeal: Islamic laws subject to Federal Constitution

Section 66 of the Negeri Sembilan Syariah Criminal Enactment 1992 ruled unconstitutional, null and void.

FMT

KUALA LUMPUR: The Court of Appeal, in a 46-page written judgment, has declared Section 66 of the Negeri Sembilan Syariah Criminal Enactment 1992, which bars men from cross-dressing as females in public as unconstitutional and void.

Judge Mohd Hishamudin Yunus said the transgenders’ case had merits.

Islam, the religion of the Federation, as defined under Article 3(1) of the Federal Constitution, is subject to the limitations of the fundamental liberties of a person, the Court held. “Article 4(1) of the Federal Constitution declares the constitution as the supreme law and any law running contrary to the constitution shall be considered void.”

Justice Hishamudin cited Che Omar bin Che Soh v Public Prosecutor, a judgment by former lord president Salleh Abbas.

The word Islam in Article 3(1) has a restrictive meaning based on Article 3(4), which states that nothing in this Article derogates from any other provision of the constitution.

“As long as Section 66 is in force, the appellants (the four transgenders or mak nyah’) will continue to live in uncertainty, misery and indignity. They now come before this court in the hope that they may be able to live with dignity and be treated as equal citizens of this nation,” said Justice Hishamudin in the unanimous judgment.

“We therefore hold that Section 66 is inconsistent with Article 5(1) of the Federal Constitution in that the section deprives the appellants of their right to live with dignity.”

Articles 5 to 13 stipulate the rights of citizens of Malaysia, which are listed as Part II of the Federal Constitution.

Article 5(1) states that no person shall be deprived of his life or personal liberty, save in accordance with law.

The Court of Appeal ruled on November 7 last year that transgenders have a gender identity disorder. It then declared Section 66 of the Negeri Sembilan Syariah law, which subjects transgenders to frequent arrests, as null and void.

The Negeri Sembilan government has filed an Application for Leave to appeal the decision. It will be heard by the Federal Court on Tuesday.

ISIS stones 2 ‘gay men’ to death in Syria: observer

By AFP | Beirut

The Islamic State of Iraq and Syria (ISIS) group stoned two men to death in Syria Tuesday after claiming they were gay, a monitor said, in the militant organization’s first executions for alleged homosexuality.

“The ISIS today stoned to death a man that it said was gay,” the Syrian Observatory for Human Rights said, adding that the victim was around 20 years old.

He was killed in Mayadeen in the eastern province of Deir Ezzor, near the border with Iraq.

The Britain-based Observatory said ISIS claimed it found videos on his mobile phone showing him “practicing indecent acts with males.”

In a separate incident on Tuesday, an 18-year-old was also stoned to death in Deir Ezzor city after the group said he was gay, the Observatory said.

Activists on social media said that the dead men were opponents of ISIS and that the group had used the allegation as a pretext to kill them.

The United Nations said this month the ISIS had carried out several executions by stoning of women in Syria it accused of adultery.

The militants proclaimed a “caliphate” in June after seizing swathes of Iraq and Syria.

Activists say ISIS carries out regular public executions -- often beheadings -- in areas it controls.

Understanding the decision in the transgender case

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.

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here to access a copy of the brief judgment of the Court of Appeal, dated 7 Nov 2014.

Keputusan Mahkamah Rayuan Dalam Kes Transgender

LoyarBurok

Click 

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here to access a copy of the brief judgment of the Court of Appeal, dated 7 Nov 2014.

13 November 2014

Keputusan Mahkamah Rayuan yang mengisytiharkan seksyen 66 Enakmen Jenayah Syariah (Negeri Sembilan) 1992, secara ringkas.

Pada 7 November 2014, Mahkamah Rayuan Malaysia telah secara sebulat suara mengisytiharkan bahawa seksyen 66 Enakmen Jenayah Syariah (Negeri Sembilan) 1992 (satu undang-undang yang dibuat oleh Dewan Undangan Negeri Sembilan) adalah bercanggah dengan pelbagai peruntukan Perlembagaan Persekutuan. Panel Mahkamah terdiri daripada Yang Arif-Yang Arif Hakim-hakim Mahkamah Rayuan Dato’ Mohd Hishamuddin bin Mohd Yunos, Dato’ Aziah binti Ali dan Datuk Lim Yee Lan.

[DIBETULKAN] Alasan Penghakiman yang ringkas telah disediakan oleh pengerusi panel, Hishamuddin JCA, dan dapat dibaca di sini. Satu terjemahan kepada Bahasa Melayu telah dibuat oleh Justice for Sisters Sisters in Islam dan dapat dibaca di sini. Yang Arif Dato’ Hishamuddin adalah tidak asing kepada rakyat Malaysia, dan merupakan satu “wira” hak asasi manusia di kalangan hakim-hakim kami.

Undang-undang Negeri Sembilan itu telah dibuat mengikut kuasa negeri itu membuat undang-undang jenayah Islam, dan telah membuatkannya satu jenayah untuk seorang lelaki memakai pakaian wanita atau berlagak sebagai seorang wanita.

Akan tetapi, tiga orang Perayu di dalam kes itu telah disahkan oleh pakar psikologi dan pakar psikiatri sebagai mengalami Gender Identity Disorder – satu keadaan medikal yang tidak boleh dirawat, dan mengakibatkan mereka mengekspresikan diri mereka sebagai wanita. Sememangnya, mereka tiada pilihan dan secara asalnya merasakan diri mereka sebagai wanita.

Mahkamah Rayuan telah mengesahkan bahawa mana-mana undang-undang yang dibuat oleh satu badan perundangan di Malaysia sememangnya mestilah dibuat selaras dengan peruntukan Perlembagaan Persekutuan. Mahkamah telah juga menitikberatkan bahawa kes itu bukannya satu keputusan mengenai sama ada seksyen 66 tersebut adalah selaras dengan ajaran agama Islam, tetapi sebaliknya sama ada undang-undang itu (yang dibuat oleh ahli Dewan Perundangan Negeri Sembilan pada tahun 1992) adalah menepati Perlembagaan Persekutuan.

Perlu diingati di sini bahawa Fasal 4(1) Perlembagaan Persekutuan menyatakan bahawa Perlembagaan itu adalah undang-undang agong (“the supreme law“) Malaysia.

Mahkamah Rayuan, secara ringkas, mendapati bahawa seksyen itu mencabuli

a) hak asasi untuk hidup dengan menghormati harga diri seseorang (right to live with dignity) [Fasal 5(1) Perlembagaan Persekutuan] kerana seksyen 66 mengakibatkan mereka hidup dalam keraguan, kesengsaraan dan secara terhina

b) hak asasi untuk bekerja (right to livelihood) [Fasal 5(1) dan 8], kerana mereka tidak dapat keluar daripada rumah secara terbuka untuk pergi ke tempat kerja mereka

c) hak asasi untuk bergerak ke mana-mana tempat di dalam Persekutuan [Fasal 9(1))

d) hak asasi kesamarataan [Fasal 8(1)]

e) hak asasi agar tidak diletakkan di dalam keadaan yang mendiskriminasikan mereka oleh kerana jantina mereka [Fasal 8(2)]

f) hak asasi untuk mengekspresikan diri mereka [Fasal 10(1)(a)]

Peguam bagi perayu-perayu adalah LoyarBurok-ker Aston Paiva dan Fahri Azzat, dengan pelbagai peguam pemerhati dan peguam yang bertindak sebagai rakan Mahkamah.

'I am bapuk and mak nyah, so what?'

 

They won in the court of law, but not in the court of public opinion.

And when tongues wag, what exactly plays in the hearts and in the minds of these transgender individuals, the ones referred to as bapuk (transvestite), mak nyah (drag queen) or pondan (effeminate men) in society?

Muhammad Izat Hasmi, a transgender from the small town of Batang Kali, Selangor is the first to admit that it has never been easy.

Facing a gender crisis ever since she was a child, Izat chose to dress as a woman when she turned 18.

When met, the 25-year-old was dressed in a red tank top and black jacket, with immaculately groomed hair and make up like any other woman.

Unlike the general perception that transgender individuals are sex workers, Izat, fondly known as Girl-girl, is trained in the sciences and was employed as a lab assistant at a hospital in Kuala Lumpur.

But pressure at work due to her gender identity eventually forced her to quit her job.

"People would try to advise me, but in a rude way like they were purposely trying to hurt my feelings.

"They told me that pondan won’t enter heaven. Are they God?" she asks, fixing her long hair.

Girl-girl says that the harassment also extends to when she has to face officials to renew her drivers’ licence or identity card.

"When it comes to things where I have to declare my gender, the officials will look at me from head to toe.

"But maybe that’s just because I am different,” she says, a smile always on her lips.

Not criminals

Despite her cheery persona, Girl-girl is not optimistic about her future in Malaysia due to the prevailing laws against transgender individuals.

"I know that people like us we don’t have much of a choice, but I hope the authorities can be bit more relaxed in its enforcement and not just arrest us.

"What exactly have we done? We didn’t commit any crime," she says.

Perhaps, she says, the authorities should try to understand them first.

Although outwardly a woman, Girl-girl, a Muslim, has opted not to undertake a sex change operation, and is unlikely to do so in the future due to her religion.

"I can tell you honestly that I still have a penis. I have only taken hormones (to change my appearance to that of a woman).

“I know that our religion does not allow us to make changes to our genitalia as when we die, we should return to Him, as how we were created,” she says.

She says that she has also come to terms with the unkindness that society has shown to her.

"At first I was angry, but what can I do? The fact is, people look down on us.

"But I am bapuk,  I am mak nyah. So what?" she says, inviting laughter from her friends.

The Nov 7 the Court of Appeal verdict that a Negri Sembilan syariah enactment banning cross-dressing is unconstitutional is seen as an indirect acknowledgement of the transgender community.

Girl-girl welcomes the decision and believes that the court has finally heard the cries of the transgender.

Pausing for a moment, she smiles.

"This is a new hope for the transgender community."

Ripples from landmark transgender ruling may reach other cases, lawyers say

Malay Mail
by BOO SU-LYN

KUALA LUMPUR, Nov 13 ― A critical Court of Appeal decision upholding the supremacy of the Federal Constitution could influence the outcome of cases such as that involving “Allah”where constitutional rights have been abrogated by lesser laws, legal experts said.

Constitutional lawyer Nizam Bashir said the appellate court judgment in the case of three Negri Sembilan transgenders last week has unambiguously articulated the tenet that all laws ― including Shariah laws ― are subject to the Federal Constitution, based on Article 4 of the document that states it to be the overriding law of the country.

While the decision validates a superior precedent on the topic, its appearance now could serve to remind others of the principle that has been sidelined in recent court cases.

“It will be interesting to see how this judgment impacts on various constitutional challenges presently still playing out in the courts, for example the Borders book ban, the decision to prosecute Kassim Ahmad in the Shariah High Court and the right to use the phrase ‘Allah’,” Nizam told Malay Mail Online via email.

The constitutional right to freedom of religion is at the heart of the Sabah Sidang Injil Borneo and Jill Ireland cases, in which a Sabah church and Sarawakian Christian are fighting for the right to use Christian materials containing the Arabic word for God, “Allah.”

In the case of Borders Books, the Federal Court is set to decide on a challenge against a Selangor state legislation that bans religious publications deemed to be un-Islamic as the law arguably violates the right to freedom of speech and expression.

 

Muslim intellectual Kassim Ahmad, who was charged at the Shariah High Court last March with insulting Islam, has accused the Federal Territory Islamic Religious Department (Jawi) of acting beyond the powers provided under state Islamic laws and the Federal Constitution when it prosecuted and arrested him.

Nizam said Article 74 of the Federal Constitution states that all laws, whether passed by Parliament or by the state, must not violate provisions within the constitution, noting that  those that fail this measure are vulnerable to being contested in court.

“Simply put, if a law purports to infringe (on) a fundamental liberty, it would be unconstitutional and this is what the Court of Appeal held when s. 66 of the Shariah Criminal Offences (Negeri Sembilan) 1992 was challenged, that it amongst others infringed the right to freedom of expression,” said the lawyer.

The Court of Appeal, Malaysia’s second-highest court, ruled last Friday that Section 66 of the Negri Sembilan Shariah Criminal Enactment 1992, which prohibits Muslim men from cross-dressing, was unconstitutional and void.

According to the court, the Islamic state law violates several fundamental liberties, notably the constitutional rights to liberty, equality, freedom of movement and freedom of expression.

The appellate court had labelled the law discriminatory as it fails to recognise men diagnosed with gender identity disorder ― in which male sufferers identify themselves as women ― and ruled in favour of three Muslim transgenders ― Muhamad Juzaili Mohd Khamis, Shukur Jani and Wan Fairol Wan Ismail ― who were convicted of cross-dressing under the Negri Sembilan shariah law.

In its written summary judgment, the Court of Appeal said Shariah laws cannot violate Malaysians’ fundamental freedoms that are protected in the Federal Constitution as legislations contradicting the constitution are deemed void.

Civil liberties lawyer Syahredzan Johan said the impact of the judgment on other cases would depend on how the courts viewed these.

“The principles enumerated are not new. They are in line with the Supreme Court case of Che Omar Che Soh,” Syahredzan told Malay Mail Online. The Supreme Court has since been renamed as the Federal Court of Malaysia.

He said the 1988 landmark ruling had decided that all laws ― whether federal or state, Shariah or civil ― must be in line with the secular Federal Constitution.

“When it comes to the constitutionality of a particular legislation, the Shariah courts have no jurisdiction to make a determination. It rightly must go to the civil court,” said Syahredzan.

Constitutional lawyer New Sin Yew said laws that violate the Federal Constitution must be struck down.

“Everything is subservient to the Federal Constitution,” New told Malay Mail Online.

“Fundamental liberties are enshrined in Part II of the Federal Constitution. So of course, shariah laws cannot derogate fundamental liberties like any other laws unless provided for by the Federal Constitution,” he added.

New also said the Court of Appeal judgment in the transgender case was groundbreaking for deciding that treating minorities like everyone else could be discriminatory, noting that the court had ruled that the three transgenders should not be treated like “normal” Muslims under the Negri Sembilan state law as they suffered from gender identity disorder.

“It’s really a watershed moment for those who are marginalised, like people with disabilities LGBT (lesbian, gay, bisexual and transgender),” he said. 

Ex-CJ slammed for being ‘alarmist’

Zaid Ibrahim says judges should be level-headed even in retirement.

FMT

KUALA LUMPUR: Political commentator Zaid Ibrahim today criticised former chief justice Abdul Hamid Mohamad for “outright alarmism” in his reaction to the recent Court of Appeal decision on the rights of transgendered people.

“Judges ought to remain level-headed even in retirement and should not be influenced by extraneous factors, prejudices or their own wild imaginations,” the former law minister said in his latest blog entry.

A Bernama report yesterday quoted Abdul Hamid as saying he feared that the Appeal Court decision would result in the eventual invalidation of Islamic laws, including those that permit Muslim polygamy and outlaw adultery and sodomy.

Zaid accused Abdul Hamid of “dramatising” the possible effects of the decision.

“We would hasten to assure him that none of the civil court judges will approve same-sex marriage applications because it simply isn’t permitted under federal law. Likewise, sodomy is an offence and adultery is an offence for Muslims,” he said.

“In the case of Muslim offences generally, I am sure that civil court judges will not disturb shariah verdicts if there are sufficient witnesses to prove the offence in accordance with Islamic law.”

He said Abdul Hamid, as a former chief justice sworn to uphold the Federal Constitution, should have congratuled the Court of Appeal judges for interpreting the law according to the constitution.

“As a lawyer, Abdul Hamid surely knows that all state laws must conform to the Federal Constitution,” he said. “The areas of the law on which the state can legislate are described in the Ninth Schedule of the Constitution.”

NGO claims Malaysian bank promoting LGBT rights

Ex-CJ: Ruling could lead to same-sex marriage

 

Former chief justice Abdul Hamid Mohamad has said the recent Court of Appeal ruling recognising the rights of transgender persons could open the floodgates that lead to same-sex marriage.

He said based on the same grounds of judgment, religious laws enacted by states are also in jeopardy of being declared unconstitutional, even though the constitution supposedly empowers the states to enact such laws.

"The grounds given by the court has wide implications.

"When Islamic laws can be declared unconstitutional based on liberal interpretations from the courts of secular countries (India and USA); when Islamic laws are measured against liberal Western-style values; when Islamic laws can be challenged on grounds that it is 'unreasonable' to a judge, including those who are not Muslim, then Islamic laws will be constantly exposed to the possibility of being declared invalid," he said in his blog.

Among the religious laws that are threatened, he said, include laws that allow Muslims to marry more than one wife, and make it illegal for Muslims not to pay zakat (tithes), to consume liquor and to have extra-marital sex and sodomy.

"Moreover, this judgment will pave the way to same-sex marriage. It seems that what I had feared has started," he said.

Our values

He said it is inappropriate to cite Indian and American precedents as “they do not share our values".

"The Court of Appeal judges are clearly very influenced by the Western interpretation of human rights," he said.

He added the judges had erred in ruling based on "unreasonableness" of the law, as their ambit is only to judge if it is "unconstitutional", not if it is reasonable or not.

On Nov 7, the Court of Appeal ruled that Section 66 of the Negri Sembilan Syariah Enactment which bans cross-dressing is unconstitutional.

It ruled that the evidence show the appellate, three Muslim transgender individuals, suffer from Gender Identity Disorder which has no therapy or cure.

Therefore, the Section 66, which opens them to arrests, condemns them to a life of “indignity” and “uncertainty”, the judgment grounds reads.

The Negri Sembilan government said it will appeal the decision at the Federal Court.

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

Malay Mail 

KUALA LUMPUR, Nov 11 ― 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.

Negri lost transgender case over failure to argue medical issue, says court

The Court of Appeal which decided that Muslim transgender males have the right to cross-dress said the Negri Sembilan religious authorities had failed to prove Islam's position on how those who suffered from gender identity disorder (GID) should dress.

Judge Datuk Mohd Hishamudin Mohd Yunus, who led the appellate court's three-member bench, said the three Muslims in the case were not "normal males" as they suffered from the disorder, which had been confirmed through psychiatric and psychological tests.

The religious authorities did not rebut the medical evidence, the court said in its written judgment of its decision on November 7 that Section 66 of the Negri Sembilan Shariah Criminal Enactment violated provisions in the Federal Constitution.

The state religious authorities had filed an affidavit by the Negri Sembilan mufti, who said Section 66, which prohibited a male from dressing as a woman, was a precept of Islam.

"(The appellants' lawyer) makes a pertinent point that the mufti's opinion remarkably fails to address the issue that is crucial for the purpose of the present constitutional challenge: what is the position in Islam as to the appropriate dress code for male Muslims who are sufferers of GID, like the appellants?" Hishamudin said in his written judgment obtained by The Malaysian Insider.

The mufti's affidavit was filed in response to findings by sociologist Professor Teh Yik Koon, who had given supporting evidence for the disorder suffered by the appellants, in addition to explanations on how Section 66 had adverse effects on transsexuals and on Malaysian society.

Muhamad Juzaili Mohd Khamis, Shukor Jani and Wan Fairol Wan Ismail were the appellants in the case to declare Section 66 in the enactment as unconstitutional.

In 2013, the Seremban High Court had dismissed their judicial review application.

Without medical evidence to prove insanity, the court also rubbished a claim by the state legal adviser, Iskandar Ali Dewa, that transgender who behaved and dressed as women were of unsound mind.

"Our answer to this is that in the absence of medical evidence, it is absurd and insulting to suggest that the appellants and other transgenders are persons of unsound mind," Hishamudin said.

Ali, who represented the state religious authorities, had told the court last July that the three had a defence of being incapable of knowing if what they did was against the law.

This is under Section 11 of the enactment and is similar to Section 84 of the Penal Code where a person is unable of telling if he or she has broken the law.

The appellate court in a unanimous ruling had declared that Section 66 of the enactment was void as it violated the constitutional right of freedom of expression, movement and the right to live in dignity and equality.

The other judges on the bench were Datuk Aziah Ali and Datuk Lim Yee Lan.

Hishamudin said the provision in the enactment directly affected the appellants' right to live with dignity and deprived them of their worth as members of society.

According to court papers, the litigants are make-up artists who were arrested for dressing as women and had suffered deep-seated discrimination, harassment and even violence because of their gender identity disorder.

Hishamudin also said all enactments, including Islamic laws, passed by state assemblies must conform to the basic rights stated in the Federal Constitution.

He said Article 74 (2) read with the State List empowered the legislatures to make law on matters to Islam, but even this had its constitutional limitations.

"Article 74 (3) stipulates that the legislative power of the states are exercisable subject to conditions or restrictions imposed by the Federal Constitution."

He said Article 4 declared that the constitution was the supreme law of the federation and any legislation inconsistent with the document shall be declared void.

Hishamuddin said Part 11 (Articles 5 to 13) of the constitution guaranteed the fundamental liberties of all Malaysians.

"Reading Articles 74 (3) and 4 (1), it is clear that all state laws, including Islamic laws passed by the state legislatures must be consistent with Part 11 of the Federal Constitution." – November 11, 2014.

- See more at: http://www.themalaysianinsider.com/malaysia/article/negri-lost-transgender-case-over-failure-to-argue-identity-disorder-or-prov#sthash.Qr7LhOdE.dpuf

Court: 'Insulting' to say transgenders unsound

 

It is "insulting" to say that transgender individuals have "unsound minds" as they are suffering from something which they did not choose, said the Court of Appeal.

"Our short answer to this is that in the absence of medical evidence it is absurd and insulting to suggest that the appellants and other transgenders are persons of unsound mind," Justice Mohd Hishamudin Yunus (below).

In his grounds of judgement for the Nov 7 decision, he said that evidences put forward to the court show that the transgender appellants suffer from Gender Identity Disorder, which cannot be treated by any known therapy.

As such, he said that Section 66 of the Negri Sembilan Syariah Enactment banning cross-dressing  is unconstitutional as it condemns transgenders to a life of "uncertainty, misery and indignity".

He added that the same Section also means that the appellants will be confined to their homes for fear of arrest.

"This is degrading, oppressive and inhuman," said Hishammuddin who led the three-member panel consisting also of Justice Aziah Ali and Lim Yee Lan.

The bench also ticked off the Seremban High Court’s verdict in September 2013, which rejected the judicial review application against the syariah enactment, for making "disturbing" findings based on "prejudice".

The High Court judge had then said that transgendered people "have male genitalia and therefore have sexual desires, so will be involved in homosexual activities, a cause for HIV".

Therefore, the High Court judge had said, Section 66 of the Negri Sembilan Syariah Enactment is required to fend off a "greater evil".

"In the present case we note with much disquiet that the learned Judge seemed particularly transfixed with ‘homosexual relations’ in her reasoning.

"We wish to stress that such reasoning is without basis and is grossly unfair to the appellants and other male Muslim sufferers of GID," he said.

"There was a complete failure on the part of the learned judge to appreciate the unrebutted medical evidence before her."

Whether it's against Islam is irrelavant

Reviewing the evidence from the Negri Sembilan mufti, Mohd Hishamudin said the fact that Muslims are prohibited from cross-dressing is irrelevant to the constitutional challenge.

"We wish to make it clear that whether or not Section 66 is consistent with the precepts of Islam is not the issue in the present case," he said.

He said the mufti’s opinion "remarkably fails" to address the position of Islam for sufferers of GID, like the appellants.

On Nov 7, the Court of Appeal allowed the appeal by Muhamad Juzaili Mohd Khamis, Shukor Jani and Wan Fairol Wan Ismail to declare Section 66 unconstitutional.

The appellants had in 2013 lost their judicial review application on the same matter at the Seremban High Court.

The Negri Sembilan government is seeking to appeal the decision at the Federal Court.

The Court of Appeal decision has also courted brickbats from the PAS ulama wing, Muslim Lawyers’ Association and the Muslim Youth Movement (Abim).

The critics say the decision challenges the positin of Islam and Syariah Court in Malaysia.

Transgenders have different identities from their bodies, defends Dr M

(Malay Mail Online) – Tun Dr Mahathir Mohamad explained today that transgenders have different gender identities than the bodies they are born with, in apparent defence of the sexual minority group.

The former prime minister also said that both females and males wear similar apparel in current times, and there is no longer an obvious divide on what constitute men’s clothing or women’s.

“We have to remember that there are those who were born with indeterminate sex. There are those who look like males, but are actually females. There are those who look females but are actually males.

“So their feelings are different from their appearances,” said Dr Mahathir, who was a practising medical doctor before he entered politics.

Dr Mahathir gave his explanation after a man who was not part of the media posed the question in a press conference at the Kuala Lumpur Summit 2014 here.

The man asked whether Shariah judges should sit together in civil courts after the Court of Appeal ruled last week that a Negri Sembilan Shariah law outlawing cross-dressing is inconsistent with the Federal Constitution.

The three transwomen who challenged the Shariah law contended that transgenders suffer from the medical condition of Gender Identity Disorder (GID), and the court ruled that the Shariah law failed to take into account medical evidences.

Lawyers for the applicants had presented in court that they are medically diagnosed with GID under the Diagnostic and Statistical Manual of Mental Disorders Fourth Edition, consistent with “the desire to dress as a female and be recognised as a female”.

The Court of Appeal’s three-man bench also unanimously ruled that the Shariah law contravened constitutional provisions that guarantee personal liberty, equality, freedom of movement, and freedom of expression.

It stressed that while the state is empowered to enact laws even involving the matters of Islam, it must not contravene the Federal Constitution that is the supreme law of the land.

The Negri Sembilan government has since said that it will soon file an appeal to the Federal Court on the Court of Appeal’s decision, claiming that Section 66 of the Negri Sembilan Syariah Criminal Enactment 1992 should be looked from the religious point of view.

“Transwomen” or “transgender” are terms used to refer to those who were born male but associate themselves with the female identity, and have nothing to do with sexual preferences.

'Anti-cross dressing ruling to stop LGBT activities'

The anti-cross dressing provision in Syariah enactments is to "curb the spread of lesbian, gay, bisexual and transgender practices", says the Islamic Development Department (Jakim).

"(Such practices) is clearly against Islamic teachings,” Jakim director-general Othman Mustapha said.

"However, I would like to stress that the (anti-cross dressing) enactments is only for Muslims and does not apply to adherents of other religion."

Othman was commenting on the Court of Appeal judgement which last week found a Negri Sembilan syariah enactment banning cross-dressing unconstitutional.

In a statement late today, he noted that Jakim takes a softer approach towards the issue of transgenders by voluntary "self-esteem building, rehabilitation and spirtual" camps.

He said the programmes are held with state Islamic affairs departments since 2010 for those experiencing "confusion" like the transgender community.

Break the stigma

As a result, he said, there is greater awareness of HIV/Aids among the target group and less "stigma" towards the transgender among the religious authorities and vice versa.

"What is important is that the leave these deviant activities and also help Jakim in continuing our spiritual rehabilitation work with those who share their same fate…

"I truly hope that the three applicants named in the case in question can contact us and volunteer for our programme,” he said.

On Nov 7, the Court of Appeal had found in favour of transgender make up artists Muhamad Juzaili Mohamad Khamis, 26, Syukor Jani, 28, dan Wan Fairol Wan Ismail, 30, application to declare Secction 66 of the Negeri Sembilan Syariah Enactment 1992 unconstitutional.

The government has urged the religious authority to appeal the decision, while the PAS ulama wing said the decision puts in doubt Islam’s position in the country.

The Muslim Lawyers Association said anti-cross dressing laws are not discriminatory, while the Muslim Youth Movement (Abim)'s legal bureau raised concerns that the ruling could lead to similar applications that undermine Islam.

PAS Dewan Ulama calls transgender decision a challenge to Islamic law

The appellate court's decision that a Shariah law preventing cross-dressing by men is unconstitutional is a challenge to the status of Islamic law in the country, the PAS Dewan Ulama said today.

Information chief Datuk Dr Mohd Khairuddin Aman Razali said the position of Islamic law has been acknowledged in the Federal Constitution but it is now being challenged by the appellate court's decision," Khairuddin said in a statement.

On Friday, the Court of Appeal ruled that Section 66 of the Negri Sembilan Shariah Criminal Enactment 1992, was illegal.

The section outlaws any Muslim man from wearing "a woman's attire and posing as a woman”. It carries a punishment of a fine not exceeding RM1,000 or jail of not more than six months or both.

A three-man bench, led by Justice Datuk Hishamudin Mohd Yunus, ruled that Section 66 of the Shariah law in the state contravened constitutional provisions that guarantee personal liberty, equality, freedom of movement, and freedom of expression.

It also said the particular law was discriminatory as it fails to recognise men diagnosed with the Gender Identity Disorder (GID), or transgenderism.

"The decision on Friday has now become a challenge towards the position of Islamic law in Malaysia," Khairuddin said.

Besides challenging the position of Islam, Khairuddin also pointed out that the decision had cast doubt on how far the sanctity and sovereignty of Islam was upheld.

He rejected the appellate court's decision saying that Islam had been recognised as the official religion of the Federation and should not be analysed through colonial views.

"The recognition of Islam as the official religion of the Federation should not be interpreted through colonial views.

"Islam should be interpreted as a way of life with all of its laws considered as the highest interpretation in Malaysia."

Khairuddin expressed concern that this would have a big implication on the future of Shariah laws being used in cases.

"This decision will open more spaces for other quarters to come forward and dispute the validity of Shariah laws at state levels," he said.

There will be quarters who will openly challenge Islamic practices and virtues because they feel they will be protected by the Federal Constitution, he warned.

Khairuddin said the PAS Dewan Ulama urged the religious authorities of Negri Sembilan to file an appeal with the Federal Court. – November 9, 2014.

- See more at: http://www.themalaysianinsider.com/malaysia/article/pas-dewan-ulama-calls-decision-on-transgender-case-a-challenge-to-islamic-l#sthash.Zhfvh9v7.dpuf

Ruling on transgenders 'could undermine Islam'

 

The Court of Appeal decision recognising the rights of transgender people smears the Islamic institutions, says a Muslim Youth Movement (Abim) leader.

Khairul Anwar Ismail, who heads the prominent NGO’s legal bureau, said that if not contained, such moves can be a "virus", which could undermine Islam and its followers.

"The decision truly smears, insults and lowers the standing of religious institutions like the Syariah Courts, the state Islamic affairs departments and the fatwa councils…

"Today’s decision will truly be the worst virus, which could destroy Islam, the identity of Muslim society and that of all people of religion in Malaysia.

"It also destroys Malaysia’s identity as a state with a religion," Khairul Anwar wrote in a posting on Abim’s official Facebook page.

He also raised concern that the Court of Appeal verdict could open floodgates for further legal challenges by the LGBT community, including for same sex marriages.

"The thing we fear the most is that at the pinnacle is the struggle to demand legalising homosexual relationships and to repeal Section 377 of the Penal Code, and legalising same sex marriages and sex changes in the name of freedom and equality," he said.

Section 377 deals with "carnal intercourse against the order of nature", including anal sex, oral sex, with or without consent.

Respect them as humans

Khairul Anwar, nevertheless, stressed that the struggle against the LGBT movement does not equate harming the individuals as they should be respected as human beings.

"It is not right to harm the LGBT people as they are also human but at the same time, they must respect the majority of the country, the majority religion and the rules of this religion," he said.

Yesterday, the Court of Appeal ruled that the Negri Sembilan syariah law contravened the constitutional rights to equality and personal liberty, and the freedoms of movement and expression.

It also said the law which bans cross dressing by men fails to recognise men diagnosed with the Gender Identity Disorder (GID).

According to a Human Rights Watch report released this year, Malaysia is one of the worst places to be transgender.

Among others, the report details harrowing sexual and physical assault sustained by transgender people at the hands of enforcement agencies.

Watershed for Muslim transgenders as court rules anti-crossdressing Shariah law unconstitutional

Supporters of transgender rights group Justice for Sisters celebrate outside the Court of Appeal after court declares Section 66 of Negri Sembilan Shariah law unconstitutional. ― Picture by Saw Siow Feng

PUTRAJAYA, Nov 7 — The Court of Appeal today declared a Negri Sembilan Shariah law criminalising cross-dressing as inconsistent with the Federal Constitution, in a major victory for human rights in Malaysia.

The appellate court said the law was discriminatory as it fails to recognise men diagnosed with the Gender Identity Disorder (GID), or transgenderism.

“We hold Section 66 of the Negri Sembilan Shariah Criminal Enactment 1992 as invalid and unconstitutional with Articles 5(1), 8(1), 8(2), 9(2) and 10(1)(a).

“The appeal is therefore allowed,” said Justice Datuk Mohd Hishamuddin Mohd Yunus while delivering his judgment.

The coram, which included Justices Datuk Aziah Ali and Datuk Lim Yee Lan, was unanimous in its decision.

Section 66 outlaws any Muslim man who “wears a woman attire and poses as a woman”, with the punishment of a fine not exceeding RM1,000 or jail of not more than six months or both.

The court ruled that the Shariah law contravened constitutional provisions that guarantee personal liberty, equality, freedom of movement, and freedom of expression.

It stressed that while the state is empowered to enact laws even involving the matters of Islam, it must not contravene the Federal Constitution that is the supreme law of the land.

In his judgment, Hishamudin had described Section 66 with words such as “degrading”, “oppressive”, “inhuman” and “depriving” the appellants of their dignity.

He also lashed out the Seremban High Court judge Justice Datuk Siti Mariah Ahmad, who declared in her decision back in October 11, 2012 that the law is needed to prevent homosexuality and the spread of HIV.

“In our judgment, the above remarks and findings were unsupported by and contrary to the evidences. It was based on personal feelings and prejudice,” said Hishamuddin.

“We wish to stress that the claim was without basis, grossly unfair and this has nothing to do with homosexuality … It was a complete failure of the judge to appreciate the unrebutted evidence presented before her.”

Lawyer Aston Paiva represented three transgender clients who challenged the law after they were repeatedly charged under Section 66. ― Picture by Saw Siow Feng

Lawyers Aston Paiva and Fahri Azzat represented three transgender clients who challenged the law after they were repeatedly charged under Section 66.

The appellants were medically diagnosed with GID under the Diagnostic and Statistical Manual of Mental Disorders Fourth Edition (DSM IV), consistent with “the desire to dress as a female and be recognised as a female”.

State legal advisor Iskandar Ali Dewa was lead counsel for the respondents that include the Negri Sembilan state government, state religious authority and its officers.

The Attorney-General’s Chambers, the Malaysian Bar and international liberties watchdog Human Rights Watch had appeared as amicus curiae, or uninvolved parties who were present to offer counsel.

Six civil societies including the Malaysian AIDS Council and PT Foundation, the Kuala Lumpur Women and Health Society, the Malaysian Mental Health Society, and the Malaysian Centre for Constitutionalism and Human Rights were observing parties in the case.

Lawyer Fahri Azzat represented three transgender clients who challenged the law after they were repeatedly charged under Section 66. ― Picture by Saw Siow Feng

The three appellants had raised the matter in the Seremban High Court in 2012, but lost when Siti Mariah ruled that Section 66 excludes the transgender people from fundamental liberties under the Constitution.

Muslim-majority Malaysia continues to reject the perceived rise in non-heterosexual activities, which it deems to be an assault against Islam together with growing calls for greater civil liberties.

The issue is compounded by the intermingling of politics and religion in a country where the latter has become a major platform from which to appeal for support.

Transgender activists estimated that there are around 60,000 Malaysian who identify as transgenders, with Malays making up 70 per cent of them.

“Transwomen” or “transgender” are terms used to refer to those who were born male but associate themselves with the female identity, and has nothing to do with sexual preferences.

Muslims threatened by liberalism, secularism and LGBT, says Najib – Bernama

Prime Minister Datuk Seri Najib Razak said Islam and its followers are now being tested by new threats under the guise of humanism, secularism, liberalism and human rights. He said this mindset appeared to be becoming a new form of religion which was fast expanding locally and abroad. "They call it humanrightism, where the core beliefs are...

Prime Minister Datuk Seri Najib Razak said Islam and its followers are now being tested by new threats under the guise of humanism, secularism, liberalism and human rights.

He said this mindset appeared to be becoming a new form of religion which was fast expanding locally and abroad.

"They call it humanrightism, where the core beliefs are based on humanism and secularism as well as liberalism.

"It's deviationist in that it glorifies the desires of man alone and rejects any value system that encompasses religious norms and eitiquette. They do this on the premise of championing human rights," he said.

Najib (pic) said this when opening the 57th national-level Quran Recital Assembly at the Dewan Jubli Perak Sultan Ahmad Shah yesterday. Also present were his wife Datin Seri Rosmah Mansor, Pahang Menteri Besar Datuk Seri Adnan Yaakob and Minister in the Prime Minister's Department Datuk Seri Jamil Khir Baharom.

He said there were efforts to spread the deviant thinking by relating it to the sanctity of Islam and this was the most dangerous threat to the Islamic faith.

"So today, once again, we stress that Islam that is embraced, practised and upheld as the national religion in Malaysia is the Islam which is based on the Sunni sect as propagated by the Prophet Muhammad and his companions.

"We will not tolerate any demands or right to apostasy by Muslims, or deny Muslims their right to be governed by Shariah Courts and neither will we allow Muslims to engage in LGBT (lesbian, gay, bisexual and transgender) activities," he said.

He said as an Islamic country which upheld the Maqasid Shariah (the higher intentions of the Shariah), Malaysia emphasised the welfare of every individual regardless of race, language or religion.

He said justice, fairness and excellence were features of moderation used in the implementation of human rights in this country.

Moderate Muslim nation of Nigeria: Protesters throw stones, demand gays be executed

Thousands of protesters threw stones into the Shariah court in a north Nigerian city Wednesday, urging the speedy convictions and executions of 11 men arrested for belonging to gay organizations.

Security officials fired into the air to disperse protesters in Bauchi city so the accused men could be safely returned to the prison. Judge El-Yakubu Aliyu closed the court abruptly.

Nigeria — Death penalty for men and whipping and/or imprisonment for women in 12 northern Nigerian states. Up to 14 years in jail in the rest of the country. 51 million in aid.

Cross-dressing outlawed in Malaysian state

Kuala Lumpur (dpa) - An Islamic state in Malaysia has decreed cross-dressing a criminal offence punishable by jail, news reports said Friday.

Under an amendment to the Sharia Criminal Offences Enactment, in force since December 1, any Muslim caught dressed as the opposite sex faces up to one year in jail and a possible fine of 1,000 ringgit (300 dollars), the Harian Metro daily reported.

"Before, we could only arrest them and advise them to change, but this has not brought any results," Pahang state Islamic Religious Council Deputy President Wan Wahid Wan Hassan was quoted as saying."Instead the phenomenon has become widespread."

"After this, a jail term or a fine or both can be imposed if they are convicted," he said.

The law only applies to Muslims in Pahang state, where a degree of sharia law is applied by local authorities. The law was part of a major review of the sharia enactment, that also included new sections on defiance of the sultan and religiousagencies, according to the official news agency Bernama.

Islamic authorities have decreed a national fatwa, or prohibition, ruling masculine dress on women to be forbidden, but there is no national law to this effect. Pang Khee Teik, a prominent local gay activist, blasted the stateruling.

"Leave the Mak Nyahs (transvestites) and pengkids (tomboys) alone," he wrote on Facebook. "This is Malaysia where unkindness is law, where we kick those who are already down," he said.

http://www.nationmultimedia.com/breakingnews/Cross-dressing-outlawed-in-Malaysian-state-30223119.html