Malaysian transgenders fail in bid to declare anti-cross dressing unconstitutional

Representatives from the cross dressing community outside the Federal Court room.
PHOTO: The Star

PUTRAJAYA: The Federal Court has ended three transgenders' bid to declare an anti-cross dressing law unconstitutional, on grounds that improper channels were used.

The panel lead by Court of Appeal president Justice Md Raus Sharif allowed the Negri Sembilan state government's preliminary objection that the wrong mode was used by the transgenders to mount a legal challenge.

Justice Md Raus ruled on Thursday that the Court of Appeal and High Court had no jurisdiction to hear the application, as they should have applied through Article 4(3) of the Federal Constitution.

This meant that the earlier judgment need not be heeded, leaving the Negri Sembilan enactment legal to criminalise cross dressing.

The five-man panel also included Justices Hasan Lah, Ahmad Maarop, Azahar Mohamed, and Zaharah Ibrahim.

On Jan 27, the Federal Court granted the Negri Sembilan government leave to appeal, allowing one question of law: on whether Section 66 contravened Articles 5(1), 8(1), 8(2), 9(2), 10(1)(a) of the Federal Constitution.

On Nov 7, last year, the Court of Appeal panel lead by Justice Mohd Hishamudin Mohd Yunus made the landmark ruling that criminalising cross-dressing for Muslims was an unreasonable restriction of individuals' freedom of expression.

This reversed the Seremban High Court's decision on Oct 11, 2012 to dismiss a judicial review by three transgenders - Muhamad Juzaili Mohd Khamis, 26, Shukor Jani, 28, and Wan Fairol Wan Ismail, 30 - against the Syariah Enactment.

The trio sought to obtain a declaration that Section 66 of the Syariah Criminal (Negri Sembilan) Enactment 1992 was invalid as it was not inline with fundamental freedoms enshrined.

Currently, Section 66 allows the Syariah Court to punish any man who dresses or poses as a woman with up to six months in prison or be fined a maximum RM1,000.