8/10/2019 Ripples from landmark transgender ruling may reach
other cases, lawyers say
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Muslim intellectual Kassim Ahmad (pic) has accused the Federal
Territory Islamic Religious Department (Jawi) of acting beyond the
powers
provided under state Islamic laws and the Federal Constitution
when it prosecuted and arrested him. !Picture by Boo Su-Lyn
malaysia
Ripples from landmark transgender ruling may reachother cases,
lawyers sayBY BOO SU-LYN
NOVEMBER 13, 2014
KUALA LUMPUR, Nov 13!A critical
Court of Appeal decision upholding
the supremacy of the Federal
Constitution could in!uence the
outcome of cases such as that
involving Allahwhere constitutional
rights have been abrogated by lesser
laws, legal experts said.
Constitutional lawyer Nizam Bashir
said the appellate court judgment in
the case of three Negri Sembilan transgenders last week has
unambiguously articulated the tenet that all laws!including Shariah
laws!
are subject to the Federal Constitution, based on Article 4 of
the document that states it to be the overriding law of the
country.
While the decision validates a superior precedent on the topic,
its appearance now could serve to remind others of the principle
that has
been sidelined in recent court cases.
It will be interesting to see how this judgment impacts on
various constitutional challenges presently still playing out in
the courts, for
example the Borders book ban, the decision to prosecute Kassim
Ahmad in the Shariah High Court and the right to use the phrase
Allah,
Nizam told Malay Mail Onlinevia email.
The constitutional right to freedom of religion is at the heart
of the Sabah Sidang Injil Borneo and Jill Ireland cases, in which a
Sabah church
and Sarawakian Christian are "ghting for the right to use
Christian materials containing the Arabic word for God, Allah.
In the case of Borders Books, the Federal Court is set to decide
on a challenge against a Selangor state legislation that bans
religious
publications deemed to be un-Islamic as the law arguably
violates the right to freedom of speech and expression.
Muslim intellectual Kassim Ahmad, who was charged at the Shariah
High Court last March with insulting Islam, has accused the
FederalTerritory Islamic Religious Department (Jawi) of acting
beyond the powers provided under state Islamic laws and the Federal
Constitution
when it prosecuted and arrested him.
Nizam said Article 74 of the Federal Constitution states that
all laws, whether passed by Parliament or by the state, must not
violate
provisions within the constitution, noting that those that fail
this measure are vulnerable to being contested in court.
Simply put, if a law purports to infringe (on) a fundamental
liberty, it would be unconstitutional and this is what the Court of
Appeal held
when s. 66 of the Shariah Criminal O#ences (Negeri Sembilan)
1992 was challenged, that it amongst others infringed the right to
freedom
of expression, said the lawyer.
The Court of Appeal, Malaysias second-highest court, ruled last
Friday that Section 66 of the Negri Sembilan Shariah Criminal
Enactment
1992, which prohibits Muslim men from cross-dressing, was
unconstitutional and void.
According to the court, the Islamic state law violates several
fundamental liberties, notably the constitutional rights to
liberty, equality,freedom of movement and freedom of
expression.
The appellate court had labelled the law discriminatory as it
fails to recognise men diagnosed with gender identity disorder !in
which
male su#erers identify themselves as women!and ruled in favour
of three Muslim transgenders !Muhamad Juzaili Mohd Khamis,
Shukur Jani and Wan Fairol Wan Ismail!who were convicted of
cross-dressing under the Negri Sembilan shariah law.
In its written summary judgment, the Court of Appeal said
Shariah laws cannot violate Malaysians fundamental freedoms that
are
protected in the Federal Constitution as legislations
contradicting the constitution are deemed void.
Civil liberties lawyer Syahredzan Johan said the impact of the
judgment on other cases would depend on how the courts viewed
these.
The principles enumerated are not new. They are in line with the
Supreme Court case of Che Omar Che Soh, Syahredzan told Malay
Mail
Online. The Supreme Court has since been renamed as the Federal
Court of Malaysia.
He said the 1988 landmark ruling had decided that all laws!
whether federal or state, Shariah or civil!
must be in line with the secularFederal Constitution.
When it comes to the constitutionality of a particular
legislation, the Shariah courts have no jurisdiction to make a
determination. It rightly
must go to the civil court, said Syahredzan.
Constitutional lawyer New Sin Yew said laws that violate the
Federal Constitution must be struck down.
Ripples from landmark transgender ruling may reach other cas...
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