'Transgenders filed wrong legal action to challenge State Syariah Enactment'

Three transgenders used the wrong legal channel to challenge the Negeri Sembilan state Syariah enactment that criminalises cross-dressing by Muslim men, the Federal Court was today told.

The enactment penalises Muslim men who dress or pose as women.

Counsel Tan Sri Muhammad Shafee Abdullah, representing the Negeri Sembilan government, submitted that they should have brought their challenge on the issue of constitutionality of the enactment by way of petition straight to the Federal Court.

He said the transgenders must first obtain leave from a Federal Court judge to pursue their petition.

However, the trio had filed a judicial review application at the Civil High Court to seek a 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 judicial review at the High Court was premature as there was no decision by the public authority. The High Court and the Court of Appeal should have not entertained their application and appeal," Muhammad Shafee said.

In the judicial review application, he said, there must be a decision to be challenged by the applicant, but in this case there was no decision made by the public authority.

The three transgenders are Muhamad Juzaili Mohamad Khamis, 26, Syukor Jani, 28, and Wan Fairol Wan Ismail, 30. In their judicial review, the three who are bridal make-up artists claimed that Section 66 did not apply to them as Gender Identity Disorder sufferers.

Tan Sri Muhammad Shafee was submitting before a five-man bench led by Court of Appeal President Tan Sri Md Raus Sharif in the appeal by the Negeri Sembilan government, the Negeri Sembilan Department of Islamic Religious Affairs, its director, the Negeri Sembilan Syariah enforcement chief, and the Negeri Sembilan Chief Syarie prosecutor.

The five are appealing against the Court of Appeal landmark decision declaring invalid the state Syariah enactment that criminalises cross-dressing by Muslim men after allowing the trio's appeal.

Counsel Aston Paiva, acting for the three, countered that he had filed the legal action through a judicial review as his clients had sought a declaration and the application was properly filed under Order 53 of the Rules of Courts

2012.

On Oct 11, 2012, The Seremban High Court dismissed the three transgenders judicial review application and ruled that their rights under the Federal Constitution were to be disregarded as they were by virtue born male and Muslim.

In the application they claimed that they had been arrested and harassed by authorities and also charged under Section 66 of the Enactment, which provides for a fine not exceeding RM1,000 or imprisonment not exceeding six months or both, upon conviction.

The allegedly male-to-female transsexuals or 'Mak Nyah' claimed they had been confirmed by a psychiatrist at Hospital Kuala Lumpur to suffer from GID (gender identity disorder).

On Nov 7, 2014, The Court of Appeal unanimously allowed their appeal to set aside the High Court ruling.

Today the Federal Court heard the appeal by the Negeri Sembilan government and four others to set aside the Court of Appeal ruling.

The panel, whose other members are federal court judges Tan Sri Ahmad Maarop, Tan Sri Hasan Lah, Datuk Azahar Mohamed and Datuk Zaharah Ibrahim, reserved judgment to a date to be fixed.