PUTRAJAYA, Nov 7 — The Court of Appeal today declared a Negri Sembilan Shariah law criminalising cross-dressing as inconsistent with the Federal Constitution, in a major victory for human rights in Malaysia.
The appellate court said the law was discriminatory as it fails to recognise men diagnosed with the Gender Identity Disorder (GID), or transgenderism.
“We hold Section 66 of the Negri Sembilan Shariah Criminal Enactment 1992 as invalid and unconstitutional with Articles 5(1), 8(1), 8(2), 9(2) and 10(1)(a).
“The appeal is therefore allowed,” said Justice Datuk Mohd Hishamuddin Mohd Yunus while delivering his judgment.
The coram, which included Justices Datuk Aziah Ali and Datuk Lim Yee Lan, was unanimous in its decision.
Section 66 outlaws any Muslim man who “wears a woman attire and poses as a woman”, with the punishment of a fine not exceeding RM1,000 or jail of not more than six months or both.
The court ruled that the Shariah law contravened constitutional provisions that guarantee personal liberty, equality, freedom of movement, and freedom of expression.
It stressed that while the state is empowered to enact laws even involving the matters of Islam, it must not contravene the Federal Constitution that is the supreme law of the land.
In his judgment, Hishamudin had described Section 66 with words such as “degrading”, “oppressive”, “inhuman” and “depriving” the appellants of their dignity.
He also lashed out the Seremban High Court judge Justice Datuk Siti Mariah Ahmad, who declared in her decision back in October 11, 2012 that the law is needed to prevent homosexuality and the spread of HIV.
“In our judgment, the above remarks and findings were unsupported by and contrary to the evidences. It was based on personal feelings and prejudice,” said Hishamuddin.
“We wish to stress that the claim was without basis, grossly unfair and this has nothing to do with homosexuality … It was a complete failure of the judge to appreciate the unrebutted evidence presented before her.”
Lawyers Aston Paiva and Fahri Azzat represented three transgender clients who challenged the law after they were repeatedly charged under Section 66.
The appellants were medically diagnosed with GID under the Diagnostic and Statistical Manual of Mental Disorders Fourth Edition (DSM IV), consistent with “the desire to dress as a female and be recognised as a female”.
State legal advisor Iskandar Ali Dewa was lead counsel for the respondents that include the Negri Sembilan state government, state religious authority and its officers.
The Attorney-General’s Chambers, the Malaysian Bar and international liberties watchdog Human Rights Watch had appeared as amicus curiae, or uninvolved parties who were present to offer counsel.
Six civil societies including the Malaysian AIDS Council and PT Foundation, the Kuala Lumpur Women and Health Society, the Malaysian Mental Health Society, and the Malaysian Centre for Constitutionalism and Human Rights were observing parties in the case.
The three appellants had raised the matter in the Seremban High Court in 2012, but lost when Siti Mariah ruled that Section 66 excludes the transgender people from fundamental liberties under the Constitution.
Muslim-majority Malaysia continues to reject the perceived rise in non-heterosexual activities, which it deems to be an assault against Islam together with growing calls for greater civil liberties.
The issue is compounded by the intermingling of politics and religion in a country where the latter has become a major platform from which to appeal for support.
Transgender activists estimated that there are around 60,000 Malaysian who identify as transgenders, with Malays making up 70 per cent of them.
“Transwomen” or “transgender” are terms used to refer to those who were born male but associate themselves with the female identity, and has nothing to do with sexual preferences.