Landmark win: Nisha (far right) speaking to two supporters at the Palace of Justice in Putrajaya.
PUTRAJAYA: Criminalising cross-dressing is an unreasonable restriction of a person’s freedom of expression, the Court of Appeal ruled in a landmark judgment.
A three-member panel led by Justice Mohd Hishamudin Mohd Yunus allowed the appeal of three transgenders and declared that Section 66 of the Syariah Criminal (Negri Sembilan) Enactment 1992 contravened several Articles of the Federal Constitution.
“A person’s dress, attire or article of clothing are a form of expression, which in our view is guaranteed under Article 10 (freedom of expression),” he said yesterday.
Currently, Section 66 allows the Syariah Court to punish any man who dresses or poses as a woman with up to six months in prison or be fined a maximum RM1,000; regardless of whether they had Gender Identity Disorder (GID).
“Clearly, the restriction imposed on the appellants and other GID sufferers is unreasonable. Thus, from the aspect of reasonableness, Section 66 is unconstitutional,” ruled Justice Mohd Hishamudin.
The panel, which included Justices Aziah Ali and Lim Yee Lan, agreed that GID was a mental condition which could not be changed through therapy or pharmaceuticals, and thus, was an intrinsic part of an affected individual.
“(Under Section 66) they cannot dress in a way that is natural to them, as it leaves them liable to arrest, detention and prosecution. This is degrading, oppressive and inhuman,” said Justice Mohd Hishamudin.
He disagreed with the Seremban High Court findings that the Syariah law was reasonable in order to protect society from homosexuality which would lead to the spread of HIV.
“The High Court’s remarks are unsupported by, and contrary to, evidence and is tainted by unscientific personal feelings or personal prejudice,” said Justice Mohd Hishamudin.
Speaking to reporters, counsel Aston Paiva, who represented the transgender appellants, said cross dressers could still be arrested, but were now empowered to challenge it at High Court.
Justice For Sisters advocacy manager Nisha Ayub said they would be educating transgenders around the country and encouraging them to challenge similar prohibitive laws in their states.
The judicial review filed to the Seremban High Court on Feb 2, 2011, named the Negri Sembilan state government, its Islamic Affairs department and director, the state’s Syariah enforcement chief, and prosecution chief, as respondents.
The applicants – Muhamad Juzaili Mohd Khamis, 26, Shukor Jani, 28, and Wan Fairol Wan Ismail, 30 – are also seeking a court order to prohibit their arrest and prosecution under the section.
The High Court dismissed the review on Oct 11, 2012, ruling that by virtue of the applicants being born male and being Muslims, their rights under the Constitution are to be disregarded.
The Centre for Independent Journalism (CIJ) applauded the court’s decision, with CIJ directors Sonia Randhawa and Jac Kee saying that the decision “affirms the Constitution’s position as the supreme law of the land”.
