Tan Sri Raus Md Sharif PUTRAJAYA, Jan 27 (Bernama) — The Federal Court, Tuesday granted leave to the Negeri Sembilan Government and four others to appeal against a Court of Appeal landmark decision declaring invalid the state Syariah enactment that criminalises cross-dressing by Muslim men.
A five-member panel led by Court of Appeal president Tan Sri Raus Md Sharif allowed the application for leave to appeal against that decision on one legal question which would be deliberated and determined by the Federal Court at the hearing of the appeal.
The question of law which was framed by the court is whether section 66 of the Negeri Sembilan Syariah Criminal (Negeri Sembilan) Enactment 1992 contravened Article 5 (1), Article 8 (1), Article 8 (2), Article 9 (2) and Article 10 (1) (a) of the Federal Constitution.
Article 5 relates to a citizen’s right to life and liberty while Article 8 is on equality. Article 9 deals with prohibition of banishment and the right of a citizen to move around, and Article 10 is concerned with a citizen’s right to freedom of expression.
Justice Raus said that a date would be fixed for case management of the appeal soon as well as an early hearing date to be set for the appeal.
The other four applicants are the Negeri Sembilan Department of Islamic Religious Affairs; its director; the Negeri Sembilan Syariah enforcement chief and the Negeri Sembilan Chief Syarie prosecutor.
Earlier, the same panel, which also comprised four other judges – Chief Judge of Sabah and Sarawak Tan Sri Richard Malanjum; Federal Court judges Tan Sri Suriyadi Halim Omar and Tan Sri Mohamed Apandi Ali and Court of Appeal Judge Datuk Zaharah Ibrahim – allowed the Negeri Sembilan State Islamic Religious Council to intervene in the appeal.
However, the court rejected the bid by five other state councils, from Perak, Federal Territories, Selangor, Penang and Johor, to intervene in the appeal and said they could sit in the appeal as ‘amicus curiae’ (friend of the court).
Aston Paiva, the lawyer for the respondents – Muhamad Juzaili Mohamad Khamis, Syukor Jani and Wan Fairol Wan Ismail – objected to the councils’ application to intervene in the appeal, saying they had no direct interest in the appeal but the councils argued that they had.
Among the reasons given by the councils were that the issues canvassed at the High Court and Court of Appeal concerned the precepts of Islam and that the councils acted as advisors to the rulers of the state who were the head of the Islam religion.
An applicant in civil cases must first obtain leave in order to proceed with an appeal to the Federal Court against a Court of Appeal decision.
Meanwhile, the applicants’ lawyer, Tan Sri Muhammad Shafee Abdullah, said his clients had one month to file their notice of appeal and memorandum of appeal.
On Nov 7 last year, the Court of Appeal allowed an appeal brought by Muhamad Juzaili, 26, Syukor, 28 and Wan Fairol, 30, and declared section 66 of the Negeri Sembilan Syariah Criminal (Negeri Sembilan) Enactment 1992 as invalid and unconstitutional.
The three-member Court of Appeal panel, chaired by Justice Datuk Mohd Hishamudin Mohd Yunus, held that that section discriminated Muslim men suffering from a medical condition called gender identity disorder (GID).
Mohd Hishamudin said section 66, which penalised Muslim men who dressed or posed as women in public places, did not provide an exception for GID sufferers but had simply ignored them and had unfairly subjected them to the enforcement of the law.
The Court of Appeal overturned a High Court dismissal of the trio’s judicial review application which rejected their request to declare section 66 unconstitutional.
In their judicial review, Muhammad Juzaili, Syukor and Wan Fairol, who are bridal make-up artists, claimed that section 66 did not apply to them as GID sufferers and they had submitted a medical report from the Kuala Lumpur Hospital certifying that they were suffering from the medical condition to which they had the tendency to cross-dress as they felt the essence of their identity to be that of a woman.
In the court proceedings Tuesday, Muhammad Shafee said that there were seven legal questions posed by the applicants for the Federal Court to determine but Aston said he only agreed to the constitutional questions and not questions relating to other issues.
Justice Raus adjourned the proceedings for about 30 minutes for the parties in the matter to discuss and draft a common constitutional question.
When the proceedings resumed, Muhammad Shafee told the court that the parties could not come to a common legal question, which resulted in Raus drafting the single question.
In the appeal, the Malaysian Bar also acted as ‘amicus curiae’.
Seven organisations were allowed to hold a watching brief.
They are the Malaysian Centre for Constitutionalism and Human Rights & Article 19; Human Rights Watch; International Commission of Jurists; UMNO; Pertubuhan Wanita dan Kesihatan Kuala Lumpur; Persatuan Kesihatan Mental Malaysia and World Professional Association for Transgender Health.