PUTRAJAYA: The Federal Court has allowed the Negeri Sembilan government’s leave application to challenge the Court of Appeal’s ruling against a provision in the state religious enactment that criminalises cross-dressing by Muslims.

A five-member bench, led by Tan Sri Raus Sharif, allowed one question to be argued during the appeal without hearing submissions from opposing parties.

The question is whether Section 66 of the Negeri Sembilan’s Syariah Criminal Enactment contravenes Articles 5, 8, 9 and 10 of the Federal Constitution.

Parties have to file within 14 days for case management before a date is fixed to hear the appeal.

Lawyer Aston Paiva said the single question formulated by the court encompassed all the issues discussed in the Court of Appeal judgment.

“The court has finally condensed all the questions from both parties into one to be argued during appeal,” he said.

Lawyer Tan Sri Muhammad Shafee Abdullah, who appeared for the Negeri Sembilan government, had submitted seven questions while Aston, who represented three Muslim transwomen, filed four questions.

The Negeri Sembilan Religious Affairs Council, represented by Datuk Sulaiman Abdullah, is party to the appeal. This means he could make legal submissions when the appeal is heard.

The state religious councils, Umno, the Bar Council and Human Rights Watch had been accorded observer status. This means they have to seek permission from the bench to address the court.

On Nov 7, judge Datuk Mohd Hishamudin Mohd Yunus, who led the appellate court’s three-member bench, declared that Section 66 of the Negeri Sembilan Syariah Criminal Enactment violated provisions in the Federal Constitution.

Mohd Hishamudin held that Muslim transgender males have the right to cross-dress and the state religious authorities had failed to prove Islam’s position on how those who suffered from gender identity disorder (GID) should dress.

He said the three Muslims in the case were not “normal males” as they suffered from the disorder, which had been confirmed through psychiatric and psychological tests.

The religious authorities did not rebut the medical evidence, the court said in its written judgment.

The state religious authorities had filed an affidavit by the Negeri Sembilan mufti, who said Section 66, which prohibited a male from dressing as a woman, was a precept of Islam.

The mufti’s affidavit was filed in response to findings by sociologist Professor Teh Yik Koon, who had given supporting evidence for the disorder suffered by the appellants, in addition to explanations on how Section 66 had adverse effects on transsexuals and Malaysian society.

Muhamad Juzaili Mohd Khamis, Shukor Jani and Wan Fairol Wan Ismail were the appellants in the case to declare Section 66 in the enactment as unconstitutional.

In 2013, the Seremban High Court dismissed their judicial review application.

Without medical evidence to prove insanity, the appellate court also rubbished a claim that transwomen were of unsound mind.

“Our answer to this is that in the absence of medical evidence, it is absurd and insulting to suggest that the appellants and other [transgenders] are persons of unsound mind,” Mohd Hishamudin said.

The appellate court in an unanimous ruling had declared that Section 66 of the enactment was void as it violated the constitutional right of freedom of expression, movement and the right to live in dignity and equality.

The other judges on the bench were Datuk Aziah Ali and Datuk Lim Yee Lan. — The Malaysian Insider

This article first appeared in The Edge Financial Daily, on January 28, 2015.