A legislature deriving its powers from a Constitution cannot devour the source of its powers.
THE Court of Appeal’s remarkable decision in the case of Muhammad Juzaili Mohd Khamis v Negri Sembilan is soon coming up for appeal to the Federal Court.
This was the famous Gender Identity Disorder (GID) or cross-dressers’ case in which Section 66 of the Negri Sembilan Syariah Criminal Enactment 1992 was held to be unconstitutional. The section provides 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”.
The three persons at the centre of the legal storm are young Muslims who are biologically males but who, according to expert witnesses, have an intrinsic, persistent, ineradicable identification with the female gender.
The Court of Appeal held that the impugned section was unconstitutional for a host of constitutional grounds.
Personal liberty: This fundamental right in Article 5(1) encompasses the right to dignity, work, livelihood and commingling with fellow human beings. Section 66 puts GID sufferers at perpetual risk of arrest, prosecution and uncertainty when they leave their house to go to their place of work.
Equality: Under Article 8(1), “like should be treated alike”. From this it flows that those dissimilarly situated should be treated dissimilarly. Section 66 omits any exception and treats GID sufferers as if they are normal males.
Further, Section 66 is gender-biased and contrary to Article 8(2) in that it singles out men who dress like girls but says nothing about girls who dress like boys.
Freedom of movement: Everyone has a right under Article 9 to freedom of movement. Section 66 criminalises any Muslim man who wears a woman’s attire in a public place.
Freedom of expression: This right under Article 10(1)(a) includes manner of one’s dressing and grooming but is subject to eight restrictions in Article 10(2)(a), including ‘morality’.
Who may enact the law? It was held in Kelantan v Nordin Salleh  1 CLJ 72 that the permissible restrictions on the rights in Article 10(1) can be enacted only by the federal parliament and not the state assemblies.
Unreasonableness: Though Section 66 falls within the powers of the state in Schedule 9 List II, Para 1 to create and punish offences against the precepts of Islam the law is unreasonable in that it fails to address the ineradicable dilemma of GID sufferers.
No proof of immorality: The Court of Appeal clarified that it does not condone homosexuality or prostitution, of which there was no evidence in relation to the persons concerned. Nor does the impugned section refer to such misconduct.
Inapplicability of Constitution: In reply to the cogent reasoning of the three distinguished Court of Appeal judges, it is reported that lawyers for Negri Sembilan are going to raise the revolutionary argument that syariah laws are not subject to the Constitution’s chapter on fundamental liberties!
What legal basis this audacious claim has remains to be seen. The learned judges of the Federal Court will undoubtedly take note of the following:
> Under Articles 4(1) and 162(6), our Constitution is the supreme law of the land.
> Though Islam is the religion of the Federation, Article 3(4) says that nothing in this Article derogates from any other provision of this Constitution.
> Despite Islam’s exalted position, the syariah is not the basic law of Malaysia or the litmus test of validity: Che Omar Che Soh (1988).
> Federal and state laws are subject to any conditions or restrictions imposed by the Constitution: Article 74(3). A stream cannot be higher than its source. The powers in Schedule 9 are subject to the chapter on fundamental rights as was laid down in Mamat Daud (1988).
> Any derogation from the Constitution’s commands must be specifically authorised as for example Articles 8(5), 11(4) and 153.
> The syariah is divine. But much of the “syariah law” in Malaysia is a fascinating mixture of divine commands, the fiqh (juristic reasoning) of the scholars of the Syafie school of Islam, Malay adat and the subjective craftsmanship of politically appointed state religious officers. That is why there are 14 separate, often conflicting, sets of laws in the country, each claiming to be the ideal syariah enactment!
> If syariah laws and syariah authorities are exempt from the chapter on fundamental rights, are they also liberated from other entrenched provisions of the Constitution on federal-state division of power, position of the Yang di-Pertuan Agong and Malay Rulers, citizenship provisions and Malay special position? Why de-fundamentalise only the fundamental liberties?
> The Federal Court will undoubtedly note that Section 66 deals with “any male person”. This covers all persons including non-Muslims. The words “any public place” are also in need of a clear definition.
> The Federal Court will also note that this case is not just about the estimated 10,000 to 20,000 transgenders in this country. It is also about the largeness and compassion of Islam. “Allah makes no soul responsible for what is beyond its capacity” (2:233). The Quran acknowledges that there are “men who have no wiles with women” (24:31, 24:60).
> Prof Hashim Kamali informs us that Islamic jurisprudence recognises two categories of transgenders – the khunsas who resemble females because of inherent conditions and the mukhannath, men whose feminine behaviour is of their own making. For this reason, scientific evi-dence needs to be obtained before the law is employed.
> In Pakistan, Kuwait, Egypt and Iran Islamic law grants transgendered people the right to sex reassignment surgery under certain medical and psychological conditions.
> The Court may wish to ask counsel for Negri Sembilan whether Islam requires every wrongdoing to be criminalised; whether a distinction between crime and sin exists in Islamic jurisprudence?
> Finally the court may be minded to ask itself whether we are going to jettison our Constitution and grant a carte blanche to authorities whose record of acting justly and complying with the Constitution is not too commendable.
> Are we going to forget the infamy caused to Islam by such overzealousness acts as raids on Christian churches and Hindu temples, seizing of books not yet banned, prosecution of a former Mufti just because he gave a ceramah without obtaining prior state permission and defiance of civil court decisions in the Borders bookstore case?
> The total inhumanity of denying custody to pining mothers whose husband had converted to Islam and abducted the infant children defies moral reasoning. Are these the authorities for whom exemption from the Constitution is being applied?
The Malaysian legal system stands at a crossroad. Our judges have the chance to choose the direction for our children and children’s children. I hope they choose wisely.
> Shad Faruqi is Emeritus Professor of Law at UiTM. The views expressed are entirely the writer’s own. The STAR Home News Columnist 20 August 2015