KUALA LUMPUR, Jan 21 — Malaysian law is secular as the Federal Constitution restricts Islamic legislation to marriage, divorce and inheritance based on the Supreme Court’s ruling in the landmark 1988 Che Omar Che Soh case, the Court of Appeal has ruled in a high-profile transgender case.
The three-judge panel of Malaysia’s second-highest court led by Justice Datuk Mohd Hishamudin Yunus cited former Lord President Tun Salleh Abas, who had ruled that the framers of the Federal Constitution had confined the word “Islam” in Article 3 — which says that Islam is the religion of the Federation — to the areas of marriage, divorce and inheritance law, based on the history of Islamic legislation in Malaya during British colonial times.
“If it had been otherwise, there would have been another provision in the Constitution which would have the effect that any law contrary to the injunction of Islam will be void,” Hishamudin quoted Salleh as saying in the Supreme Court’s unanimous decision.
“Far from making such provision, Article 162, on the other hand, purposely preserves the continuity of secular law prior to the Constitution, unless such law is contrary to the latter,” Salleh added, referring to Article 162 of the Federal Constitution that states existing laws shall continue to be in force on and after Merdeka Day.
“In short, the Supreme Court takes the position that it was the intention of the framers of our Federal Constitution that the word ‘Islam’ in Art. 3(1) be given a restrictive meaning,” Hishamudin said in the appellate court’s full judgment released on January 2 in the case of three Muslim transwomen fighting a cross-dressing ban under Negri Sembilan Shariah law.
Article 3(1) states that Islam is the religion of the Federation, but other religions may be practised in peace and harmony.
The Court of Appeal judge also highlighted Article 3(4) of the Federal Constitution that said nothing in the Article derogated from other provisions of the Constitution.
“What Art. 3(4) means is that Art. 3(1) is subject to, among others, the fundamental liberties provisions as enshrined in Part II of the Federal Constitution,” said Hishamudin.
The Court of Appeal ruled last November in favour of three Muslim transgenders ― Muhamad Juzaili Mohd Khamis, Shukur Jani and Wan Fairol Wan Ismail ― who were convicted of cross-dressing under Section 66 of the Negri Sembilan Syariah Criminal Enactment 1992 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 Negri Sembilan Shariah Criminal Enactment 1992 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 court panel ― comprising Hishamudin, 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).
The Federal Court is set to hear next Tuesday the Negri Sembilan state government’s application for leave to appeal the Court of Appeal’s decision.
Hishamudin’s judgment comes even as Putrajaya is attempting to elevate the Shariah courts to be on par with the civil Federal Court, the highest court in the country.
Malay-Muslim right-wing groups have also claimed that the enforcement of hudud law — which PAS is trying to push in Kelantan — is in line with the contentious Article 3 of the Federal Constitution.