Cross-dressing still illegal, rules Federal Court
Published on: Friday, October 09, 2015
PUTRAJAYA: The Court of Appeal does not have the jurisdiction to declare a provision in the Negeri Sembilan Syariah criminal enactment as unconstitutional as the three transgenders (plaintiffs) had used the wrong legal procedure to commence their action, the Federal Court here ruled on Thursday.A five-man bench chaired by Court of Appeal President Tan Sri Md Raus Sharif declared that the judicial review bid brought by the trio to challenge the validity of Section 66 of the enactment incompetent due to procedural non-compliance.Section 66 of the enactment criminalises Muslim men for cross-dressing and an offender can be jailed up to six months or fined a maximum RM1,000, if convicted.
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Justice Md Raus said the transgenders should have gone straight to the Federal Court to seek for leave from a single Federal Court judge to commence a petition as they were challenging the legislative powers of the state legislature of Negeri Sembilan to make Islamic laws and not by way of a judicial review.Following this decision, Section 66 of the enactment is constitutional and legal.In his 23-page judgement, Justice Raus said the validity or constitutionality of the laws could not be questioned by way of a judicial review proceeding before the High Court.He said such challenge could only be made by way of the specific procedure as provided under Article 4 of the Federal Constitution, which the transgenders failed to follow.
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"The learned judges of the Court of Appeal as well as the High Court were in grave error in entertaining the respondents' (the trio) application to question the validity or constitutionality of Section 66 (of the enactment) by way of judicial review."The courts below were not seized with the jurisdiction to do so. It is trite that any proceeding heard without jurisdiction to do so is null and void ab initio," he said.
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He said the trio's application for declarations should have been dismissed by the High Court on the ground that the High Court had no jurisdiction to hear the matter.Justice Raus cited the majority judgement in the case of the Roman Catholic church against the Home Ministry which laid procedures in Article 4 of the Federal Constitution to be followed when questioning the validity or constitutionality of law which should be by way of specific procedure and not by way of collateral attack in a judicial review proceeding.He said the challenge by the trio was on the validity and constitutionality of Section 66.The court allowed the appeal solely on the preliminary issue raised by the Negeri Sembilan state government, the Negeri Sembilan Department of Islamic Religious Affairs, its director, Negeri Sembilan Syariah enforcement chief and the Negeri Sembilan Chief Syarie prosecutor and set aside the judgments of the High Court and Court of Appeal.The other judges on the panel were federal court judges Tan Sri Ahmad Maarop, Tan Sri Hasan Lah, Datuk Azahar Mohamed and Datuk Zaharah Ibrahim.On Nov 7, last year, the Court of Appeal allowed an appeal brought by the three Muslim bridal make-up artists — Muhamad Juzaili Mohamad Khamis, 26, Syukor Jani, 28, and Wan Fairol Wan Ismail and declared the section was void as it violated their constitutional right of freedom of expression, movement and the right to live in dignity and equality.This reversed the Seremban High Court's decision on Oct 11, 2012, to dismiss their judicial review to declare section 66 unconstitutional.Stay up-to-date by following Daily Express’s Telegram channel.
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