Transgender case: Federal Court to decide on Oct 8 on preliminary objection in appeal

The Federal Court will deliver its decision on a preliminary objection raised in the appeal by the Negeri Sembilan government and four others over an appellate court's decision in declaring invalid the state Syariah enactment criminalising Muslim men for cross-dressing on Oct 8.

Federal Court Corporate Communication and International Relations Division head Mohd Aizuddin Zolkeply, when contacted, confirmed the date.

He said the decision would be delivered at 2pm on that day.

On Aug 13, counsel Tan Sri Muhammad Shafee Abdullah, representing the Negeri Sembilan government and the four others, had raised a preliminary objection in the appeal saying that the bid by the three transgender people to challenge the state Syariah enactment was premature because there was no decision made by the

public authority.

In his submission before a five-man Federal Court bench led by Court of Appeal President Tan Sri Md Raus Sharif, Muhammad Shafee said the three transgender people had also used the wrong mode to challenge the state Syariah enactment.

Muhammad Shafee told the court that they should have invoked Article 4 of the Federal Constitution to go straight to the Federal Court to challenge on the constitutionality of the enactment by way of petition.

To do so, he said, the transgender must first obtain leave from a Federal Court judge to pursue their petition.

He said the High Court and Court of Appeal should have not entertained the transgender's judicial review application and appeal.

The three Muslim bridal make-up artists -- Muhamad Juzaili Mohamad Khamis, 26, Syukor Jani, 28, and Wan Fairol Wan Ismail, 30 -- had filed a judicial review application at the Civil High Court to seek declaration that Section 66 of the Negeri Sembilan Syariah Criminal (Negeri Sembilan) Enactment 1992, which criminalises Muslim men for cross-dressing, was invalid and unconstitutional.

Their counsel, Aston Paiva, had submitted that constitutional issues could be raised at any time and leave of the Federal Court need not be obtained.

The appeal was brought by the Negeri Sembilan government, the Negeri Sembilan Department of Islamic Religious Affairs and its director, Negeri Sembilan Syariah enforcement chief and the Negeri Sembilan Chief Syarie prosecutor.

Justice Md Raus had reserved the court's decision on the preliminary objection after the court heard submission on the preliminary objections from parties in the appeal.

The other judges who presided on the panel were federal court judges Tan Sri Ahmad Maarop, Tan Sri Hasan Lah, Datuk Azahar Mohamed and Datuk Zaharah Ibrahim.

On Nov 7 last year, the Court of Appeal allowed an appeal brought by the three transgenders and declared Section 66 of the Negeri Sembilan Syariah Criminal (Negeri Sembilan) Enactment 1992 as invalid and unconstitutional.

A three-member panel chaired by Justice Datuk Mohd Hishamudin Mohd Yunus held that the provision discriminated Muslim men suffering from a medical condition called gender identity disorder (GID).

The Court of Appeal overturned a High Court's dismissal of the trio's judicial review application which rejected their request to declare unconstitutional Section 66.