A summary of the recent decision in the transgender case, and some of the submissions by the various lawyers.
UPDATED (15 October 2015): The decision of the Federal Court allowing the government’s appeal on a preliminary issue is now out, and is found at the end of the article.
The three Respondent Muslim Transgenders were living in the State of Negeri Sembilan. Each of them had the confirmed medical condition called ‘Gender Identity Disorder’ (GID), which led to their expressing themselves as women by wearing women’s clothes and make-up in public. The medical evidence established that the said medical condition is something that the Transgenders did not choose and cannot change.
Section 66 of the Syariah Criminal Enactment 1992 (Negeri Sembilan) provided that:-
“Any male person who, in any public place wears a woman’s attire or poses as a woman shall be guilty of an offence and shall be liable on conviction to a fine not exceeding one thousand ringgit or to imprisonment for a term not exceeding six months or to both.”
Since the provision made no exception for those with GID, the Transgenders were repeatedly detained, arrested and prosecuted for wearing women’s attire or posing as a woman by the religious authorities of Negeri Sembilan.
They therefore applied to the High Court of Seremban for a declaration by way of judicial review that s66 was void by reason of being inconsistent with arts 5(1) (life and personal liberty), 8(1) (equality), (2) (gender discrimination), 9(2) (freedom of movement) and 10(1)(a) (freedom of speech, assembly and association) of the Constitution.
Whilst leave to apply for judicial review was granted, the substantive application was heard by another judge who dismissed the application, holding that the behaviour of the Transgenders was likely to lead to homosexual relationships and therefore a heightened threat of HIV/AIDS, so that the effect of s66 was to prevent a greater harm to society and which benefit outweighed the constitutional rights of the Transgenders.
The Transgenders subsequently appealed against the High Court’s decision to the Court of Appeal.
The Court of Appeal heard the parties for two days. They were made aware of the June 2014 arrest of 16 Transgender guests and Mak Andam (bridal make-up artist) at a Malay wedding in Bahau, Negeri Sembilan pursuant to s66. The Court of Appeal reserved its decision, and then unanimously held that s66 was inconsistent with articles 5(1), 8(1)–(2), 9(2) and 10(1)(a) of the Federal Constitution and was therefore void. [Click here for the summary of the decision and full judgement here.]
Most in the transgender community, and right thinking members of civil society in Malaysia, rejoiced.
In January 2015, the Federal Court granted leave to the State Government of Negeri Sembilan to appeal the Court of Appeal’s decision, and granted leave to the Islamic Religious Council of Negeri Sembilan (Majlis Agama Islam Negeri Sembilan) to intervene in the appeal. The Federal Court framed the following questions for determination:-
“Whether section 66 of the Syariah Criminal Enactment 1992 (Enactment 4 of 1992) of Negeri Sembilan contravenes articles 5(1), 8(1), 8(2), 9(2) and 10(1)(a) of the Federal Constitution.”
The submissions by the lawyers for the substantive appeal were as follows:-
– Submissions of the lawyers for the Transgenders, Aston Paiva and Fahri Azzat, are here
On 13 August 2015, the first day of hearing in the Federal Court, the State Government of Negeri Sembilan raised two preliminary objections:-
i) That the Transgenders should have obtained leave of a single Federal Court judge to commence their constitutional challenge, under article 4(4) of the Constitution; and
ii) That the Transgenders should have concluded their Syariah court proceedings under s66 first before instituting their claim for judicial review.
The Federal Court also expressed concern:-
iii) Whether judicial review was the appropriate procedure.
The Trangenders’ reply:-
i) Their challenge is whether s66 is inconsistent with their guaranteed constitutional rights, and not whether the State Government had the competency to make the s66. Only the latter challenge requires leave of the Federal Court;
ii) Violations of constitutional rights may occur not only when a citizen is prosecuted under an allegedly unconstitutional law, but also when a person is arrested, detained or charged under an allegedly unconstitutional law. The effects of a law can be felt without a prosecution, and to insist that a citizen needs to face a prosecution under the law in question before he can challenge its constitutionality could have the perverse effect of encouraging criminal behaviour to test constitutional issues; and
iii) The specific instances of the Transgenders’ arrest, detention and prosecution show that s66 is being enforced against them i.e. they are adversely affected by the enforcement of s66. For the Federal Court to, at this stage, decide that judicial review is not the appropriate procedure would, in effect, be a setting aside of the order granting leave for judicial review in November 2011; in contravention of O. 53 r 9, RC 2012.
Their lawyers filed written points of clarification which are here.
The matter was fixed for Decision/Judgment on 8th October 2015 at the Federal Court in Putrajaya. The Federal Court allowed the appeal on the preliminary objection, and said that the Transgenders’ ought to have gone directly to the Federal Court.
UPDATED (15 October 2015): The decision of the Federal Court is here.