Source: Malaysiakini, November 4, 2011 (by Hafiz Yatim)
In what is believed to be a test constitutional case involving the transgender community, the Seremban High Court today granted leave (permission) to four applicants to challenge a syariah law barring them from dressing as females.
Justice Rosnaini Saub, in her decision granting leave, recognised that the matter involved various constitutional issues.
“As it involves valid constitutional issues, the court is granting leave to hear the application,” she said.
No date has been fixed to hear the application. In judicial review cases, it is not an automatic right for the cases to be heard as the applicants have to gain the court’s permission to initiate proceedings.
This is to ensure that the application is not frivolous.
The four – Muhamad Juzaili Mohd Khamis, 24, Shukor Jani, 25, Wan Fairol Wan Ismail, 27, and Adam Shazrul Mohd Yusoff, 25 – named the Negri Sembilan Islamic Affairs Department, its director, chief syariah enforcement officer, chief syariah prosecutor and the state government as respondents.
Working as bridal make-up artists
The four applicants, who are working as bridal make-up artists, identify themselves as women and dress as women.
They claimed that Section 66 of the Syariah Criminal (NS) Enactment denies them the right to freely express themselves.
They claimed that the section was unconstitutional as it violated:
- Article 5(1) of the federal constitution, which enshrines the right to personal liberty.
- Article 8(2), which states that “…there shall be no discrimination against citizens on the grounds only of religion, race, descent, place of birth or gender in any law…”
- Article 9(2), which enshrines the right of every citizen to move freely throughout Malaysia.
- Article 10(1)(a), which states that every citizen has the right to freedom of expression.
- Article 4(1), which declares void any law that is inconsistent with the federal constitution.
All four were represented by Aston Paiva, while senior federal counsel Suhaila Harun appeared for the respondents.
The four claimed they had undergone psychological evaluation and a Hospital Kuala Lumpur psychiatrist had classified all of them to possess gender identity disorder.
Muhamad Juzaili, Shukor, Wan Fairol and Adam Shazrul knew of the gender conflict when they were 15, 20, 13 and 13 years old respectively, in that they showed the mannerisms of women.
All four claimed that they had been arrested, sexually molested, battered and subjected to degrading treatment.
Arrested several times
Muhammad Juzaili had been arrested four times in 2010 alone and charged three times under Section 66, where in the first two he was convicted and paid fines of RM700 and RM1,000 respectively.
Shukor and Wan Fairol were separately arrested and detained twice, while Adam Shazrul had also been arrested twice since 2005, of which he was convicted once and ordered to pay a fine of RM800.
All four claimed that as a result of the enactment, they had difficulty to move about and this violated their rights under Article 9 (2) regarding mobility. They also claimed that, among others, Section 66 was in violation of Article 5 on liberty, particularly to having the freedom to choose.
They are seeking several declarations, including that Section 66 of the Syariah Criminal (Negri Sembilan) Enactment 1992 is inconsistent with Article 8(2), Article 10 (1) (a) , Article 5(1) and Article 8(1), Article 9(2).
Alternatively, they are seeking a declaration that Section 66 has no effect and is not applicable to them, who are psychologically women or have gender identity disorder.
They are also seeking an order to prohibit the chief syariah enforcement officer or his agents from taking action or conducting or continuing investigations on them, besides other relief deemed fit by the court and costs of their application.