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Malaysian Court of Appeal does Justice to Transgenders

Malaysian Court of Appeal does Justice to Transgenders

Last year, the Malaysian Court of Appeal made a landmark decision in overturning a state law that discriminated transgenders. By Iman Alia Anuar

As three transgenders from Negri Sembilan stepped out of their house, they would be harassed, arrested, brought to court and sent to prison. The victims are Muhamad Juzaili Mohd Khamis, Shukor Jani and Wan Fairol Wan Ismail.

It is stated under Section 66 of Negri Sembilan’s Syariah Criminal Code that it is an offense for Muslim males to dress as women in public. As it affected them, the three appellants were unhappy with the state ruling and appealed to the Malaysian Court of Appeal in November 2014 to declare it as unconstitutional. They considered the ruling as null and void because it does not apply to them.

They found it unjust that they were sent to prison because of the way they dress. The Muslim ruling is meant for Muslim biological males, but the three appellants are of a different circumstance.

“They are medically proven to be sufferers of Gender Identity Disorder (GID). Physically, they may be male, but emotionally they have women’s souls. They find it unnatural to dress as men but feel more comfortable appearing and behaving as women. An exception was not provided for them,” says Justice Datuk Mohd Hishamudin Mohd Yunus who chaired the three-member panel of the Court of Appeal.

Although the law states that Muslim males may not dress as females, the three appellants emphasised that there must be a law that takes into account their condition. They challenged that Negri Sembilan breached four Articles under The Federal Constitution, which is of a higher status than the state enactment.

“They wanted the court to rule that Section 66 is an invalid law because it contravenes the Constitution. If there is a law made by the state legislature of Negri Sembilan that goes against our Constitution, then that particular law is invalid,” explains Justice Mohd Hishamudin.

The state enactment of Negri Sembilan is of a lower status and thus cannot contravene a higher law. Under Article 5, no person “shall be deprived of his liberty in accordance with the law”. Article 8 states that “everyone is equal before the law”. Meanwhile, Articles 9 and 10 outline the freedom of movement and expression. Therefore, the appellants challenged the enactment based on violations by the state of Negri Sembilan relating to fundamental liberties.

The three individuals felt that they were treated unequally as they were harassed based on how they dress. They were arrested, imprisoned and brought to court many times in their hometown of Negri Sembilan. Therefore, they sensed that their dignity as human beings was affected as they were unfairly subjected to law enforcement. Eventually, they sought protection from the Malaysian Court of Appeal to declare the ruling as invalid.

“They feel that they are deprived of their freedom of expression as they cannot dress the way they want to and cannot move around without being harassed. Equality is not achieved for them,” Justice Mohd Hishamudin says.

It was a unanimous judgement among all judges of the three-member panel, declaring that the Negri Sembilan religious enactment did in fact contravene the various provisions mentioned. The other judges on the bench were Datuk Aziah Ali and Datuk Lim Yee Lan.

Justice For Sisters (JFS), a transgender activist group founded in 2010 were elated by the historic judgement made by Justice Mohd Hishamudin. They are concerned about how the media has portrayed the transgender community poorly.

“The media uses religion to justify why they’re against transgenders and to make supporters feel guilty and depressed. They see us as religious problems instead of human beings,” said JFS co-founder Sulastri Ariffin to the Malay Mail.

Sulastri’s co-founder S. Thilaga was quoted as saying that the three transgenders’ victory was a joyous moment for the transgender community especially in Negri Sembilan. This is because they have been directly affected by the state’s ruling that prohibits their choice of wardrobe, leading to severe trauma and distress.

As both a Muslim man and a man of the law, Justice Mohd Hishamudin had no doubts when approaching the case. Above all else, he has the law to uphold.

“As a man of the law, I have to leave aside my leaning as a Muslim because I was appointed not to enforce the Islamic law, but to uphold a secular law. I am confident that Islam is a religion that fosters justice and is not that cruel to the extent that it does not recognise people with this sort of medical condition,” he explains.

“This is the first time that we have encountered a case involving Muslim members of the transgender community,” he says.

He also explains that they would not have won the case if their claims were not backed by medical evidence provided by psychologists.

If Islamic scholars were to do further research, they may find that Islam might provide an exception.

“The state of Negri Sembilan merely had a mufti opinion and said in Islam, males are prohibited from dressing as females in public. They never addressed males suffering from GID. That’s where Negri Sembilan’s Islamic authority made a mistake,” says Justice Mohd Hishamudin.

His decision was poorly received by a number of groups. Apart from Negri Sembilan, he received negative responses from the majority of Perak, the Islamic PAS party, the former Chief of Justice, Tun Abdul Hamid Mohamad and Muslim Youth Movement of Malaysia (ABIM).

They claimed that he is turning against Islamic law. “Did they actually read and understand my judgement? The issue before me has nothing to do with Islamic law, but rather the Federal Constitution,” Justice Mohd Hishamudin remarks.

ABIM claimed that the transgender movement has become a ‘cancer’ that is corrupting the judiciary courts and that the judgement undermined religious institutions. Justice Mohd Hishamudin found the statement unfair. “This remark fails to recognise that the court does not in any way undermine Islamic law. The court was only upholding the constitution,” he expresses.

On the other hand, he was happy to hear the positive feedback that also emerged as he believed he did the people justice. He describes: “When we made the ruling, I sensed a feeling of happiness because I have done something good for these people. I am glad to find that support exists for our decision. They don’t deserve to be treated the way they were treated. What they have is incurable and it’s for life.”

A positive comment came from the appellants’ lawyer, Aston Paiva. She was quoted as saying that the case will be a precedent and that the court binds all other high courts.

“As far as our decision goes, our ruling can either be upheld or reversed by the highest court, the Federal Court. We overturned the High Court but not the Federal Court. If it is upheld, then only can it be used as a precedent,” Justice Mohd Hishamudin explains.

Despite the case’s status as pending, the three appellants’ victory at the Court of Appeal was a historical moment for transgenders everywhere and for Malaysia. The ruling was a landmark judgement coming from a Malaysian court.

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