In its bid to reverse a ruling that a law against Muslims’ crossdressing is unconstitutional, the Negri Sembilan government will argue this August that the validity of Islamic state laws cannot be tested by constitutional rights.
BY IDA LIM
Thursday May 14, 2015
01:38 PM GMT+8
PUTRAJAYA, May 14 ― In its bid to reverse a ruling that a law against Muslims’ crossdressing is unconstitutional, the Negri Sembilan government will argue this August that the validity of Islamic state laws cannot be tested by constitutional rights.
The case involves three Muslim transgenders whose victory at the Court of Appeal led to it ruling that the Negri Sembilan Shariah law used against them was unconstitutional and void.
Aston Paiva, who is representing the three transgenders, told reporters today that the argument the state government will put for is whether “Islamic laws be tested with Part II of the Federal Constitution.”
The Federal Constitution’s Part II that contains Articles 5 to 13 covers the fundamental liberties guaranteed to all Malaysians, including the right to non-discrimination and equality before the law.
Aston confirmed to Malay Mail Online later that the argument will be raised by “all parties who are against the Court of Appeal’s decision”, including the Federal Territories Islamic Religious Council (MAIWP) that is acting as amicus curiae or a “friend of the court” that can raise points in court.
He also said the hearing date for the case was fixed today for August 13.
Earlier today, the Federal Court also postponed to August 13 the hearing of another case involving the constitutionality of a rule barring non-Muslims from practising as a Shariah lawyer, after MAIWP raised the same argument that constitutional liberties should not be used to determine the validity of Islamic laws.
Last November, the Court of Appeal ruled in favour of three Muslim transgenders who were convicted of cross-dressing under the Shariah enactment 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 appellate court also struck down Section 66 of the enactment as unconstitutional and void, noting that the state law provision contravened a slew of fundamental liberties, which were personal liberty, equality, freedom of movement and freedom of expression.
The three-judge panel of Malaysia’s second-highest court led by Justice Datuk Mohd Hishamudin Yunus and comprising Datuk Aziah Ali and Datuk Lim Yee Lan had also said the law was discriminatory as it failed to recognise men diagnosed with gender identity disorder (GID).
This January, the Federal Court allowed the Negri Sembilan government and four other applicants to challenge the Court of Appeal’s ruling against the state’s Shariah law.
The five-man bench said then that the court will only consider whether Section 66 of the Negri Sembilan Shariah Criminal Enactment 1992, which criminalises cross-dressing, contravenes Articles 5(1), 8(1), 8(2), 9(2) and 10(1)(a) of the Federal Constitution.
Tan Sri Shafee Abdullah is the lawyer for the five applicants, namely the Negri Sembilan state government, the state’s Islamic Religious Affairs Department’s (JHEAINS), the JHEAINS’ director, the JHEAINS chief enforcer, and the state’s chief Shariah prosecutor.
The Negri Sembilan Islamic Religious Council (Mains) is the intervener, while MAIWP and four other state Islamic councils ― for Selangor, Perak, Penang and Johor ― are only allowed to appear as amicus curiae or “friends of the court”.