Court turns down transgenders’ bid to hear right to cross-dress

The Federal Court ruled in 2015 that a provision in the Negeri Sembilan shariah law against cross-dressing is constitutional.

PUTRAJAYA: The Federal Court today dismissed an application by three bridal make-up artists to review its 2015 ruling and declare that a provision in the Negeri Sembilan shariah law against cross-dressing is unconstitutional.

A five-member bench chaired by Chief Justice Tengku Maimun Tuan Mat said Muhamad Juzaili Mohamad Khamis, Syukor Jani and Wan Fairol Wan Ismail did not cross the threshold of Rule 137 of the Federal Court Rules 1995 to have the matter heard.

The others on the bench were Zaleha Yusof, Zabariah Mohd Yusof, Mary Lim Thiam Suan and Harmindar Singh Dhaliwal.

The trio named the Negeri Sembilan government, the state Department of Islamic Religious Affairs and its director, the state shariah enforcement chief and chief syarie prosecutor and the State Religious Council as respondents to the application.

State legal adviser Muzalmah Mustapha Kamal submitted earlier that the application should be dismissed although the apex court had inherent power to review its previous ruling.

“Review power must be exercised sparingly and this is not a fit and proper case,” she said.

Lawyer Sulaiman Abdullah, who represented the council, adopted the submission of Muzalamah.

“The applicants failed to show what prejudice they suffered as a result of the ruling (in 2015),” he said.

Lawyer Aston Paiva said the Federal Court ruling was an injustice as it committed an error in interpreting the Federal Constitution.

“This will affect public confidence in the judiciary and administration of justice,” he said, adding that the merit of the case must be heard.

Last year, the trio filed the review application to set aside the Oct 8, 2015 five-member Federal Court ruling.

The grounds were that the decision was inconsistent with Article 121 (2) (a) of the Federal Constitution and sections 96 and 74(1) of the Courts of Judicature Act which resulted in an injustice.

The bench, then chaired by Raus Sharif, reversed a Court of Appeal declaration of unconstitutionality against the state’s anti-cross-dressing law for men.

Raus said Section 66 of the Syariah Criminal (Negeri Sembilan) Enactment 1992 was void from the very beginning the suit was filed.

The panel ruled that this was because the legal challenge filed at the Seremban High Court should have instead been filed straight to the Federal Court.

However, last year, a nine-member Federal Court bench in the case of Alma Nudo Atienza vs the Public Prosecutor expressed its opinion that a law which is challenged on grounds it breached the basic rights can be challenged in any court.

The trio depended on this case to seek a review.

On Oct 11, 2012, the High Court dismissed the three transgenders’ judicial review application and held that their rights under the constitution were to be disregarded as they were born male and Muslim.

However, on Nov 7, 2014, the Court of Appeal delivered a landmark judgment favouring the three respondents, who had challenged Section 66.