Transgenders lose review bid over court ruling on state Syariah law on cross-dressers

Chief Justice Tan Sri Tengku Maimun Tuan Mat who chaired the Federal Court five-member panel today dismissed the application brought by Muhamad Juzaili Mohd Khamis, Shukor Jani and Wan Fairol Wan Ismail.

"We are of the view that this application does not cross the threshold of Rule 137 of the Federal Court Rules 1995," she said.

Also presiding on the panel were Federal Court judges Puan Sri Zaleha Yusof, Datuk Zabariah Mohd Yusof, Datuk Mary Lim Thiam Suan and Datuk Harmindar Singh Dhaliwal.

At today's proceedings, lawyer Aston Paiva, representing the make-up artists, sought the Federal Court to grant leave to review and set aside the Federal Court’s decision on Oct 8, 2015 or alternatively to hear the appeals.

The Federal Court five-member panel led by former Chief Justice Tun Md Raus Sharif had in 2015 set aside the Court of Appeal's declaration that Section 66 of the Negeri Sembilan Syariah Criminal Enactment penalising cross-dressers, was unconstitutional.

He had held that the appeals brought by the Negeri Sembilan state government, Department of Islamic Religious Affairs, its director, the state’s Syariah enforcement chief and chief Syarie prosecutor were incompetent as the three applicants (Muhamad Juzaili, Shukor and Wan Fairol) had used the wrong procedure to commence their legal challenge to the legality of the state Syariah law.

He said the trio should have filed their legal challenge straight to the Federal Court and not by way of a judicial review in the Seremban High Court.

At today's proceedings, Paiva also submitted that there was a miscarriage of justice when the Federal Court failed or refused to hear the merits of the appeals, instead the court allowed a preliminary issue raised by the state government and four others and declared that the appeals were incompetent.

Negeri Sembilan state legal adviser Muzalmah Mustapha Kamal, representing the respondents, said the application should be dismissed as the applicants had not shown that they were adversely affected by the decision.

She said although the Federal Court had the inherent power to review its own decision, the review power must be exercised sparingly.

Lawyer Datuk Sulaiman Abdullah, representing the Negeri Sembilan Islamic Religious Council, adopted Muzalmah's submission.

On Oct 11, 2012, the High Court dismissed the judicial review application by Muhamad Juzaili, Shukor and Wan Fairol.

In November 2014, the Court of Appeal delivered a landmark judgment favouring the three transgenders who had challenged Section 66.

The court ruled that the provision was unconstitutional as it discriminated against Muslim men suffering from a medical condition called gender identity disorder.

The Negeri Sembilan government, state Department of Islamic Religious Affairs, its director, Syariah enforcement chief and chief Syarie prosecutor obtained leave from the Federal Court in January 2015 to appeal against the appellate court's decision.