Although Islam is the religion of the federation in Malaysia, as defined under Article 3(1) of the Federal Constitution, it is subject to the limitations of the fundamental liberties of a person, the Court of Appeal ruled today.
In his 46-page written judgment on a case involving transgenders, Justice Mohd Hishamudin Yunus noted that Article 4(1) of the Federal Constitution declares the constitution as the supreme law and any law running contrary to the constitution shall be considered void.
Justice Hishamudin then went on to quote the judgment of former lord president Salleh Abbas in the case of Che Omar bin Che Soh v Public Prosecutor.
In this case, the judge said the word Islam in Article 3(1) should be given a restrictive meaning based on Article 3(4), which states that nothing in this Article derogates from any other provision of the constitution.
In declaring Section 66 of the Negri Sembilan Syariah Criminal Enactment 1992, which bars men from cross-dressing as females in public as unconstitutional and void, Justice Hishamudin (left) said the court finds merit in the transgenders' case.
“As long as Section 66 is in force, the appellants (the four transgenders) will continue to live in uncertainty, misery and indignity.
“They now come before this court in the hope that they may be able to live with dignity and be treated as equal citizens of this nation.
“We therefore hold that Section 66 is inconsistent with Article 5(1) of the Federal Constitution in that the section deprives the appellants of their right to live with dignity,” he wrote in the unanimous judgment.
Articles 5 to 13 stipulate the rights of citizens of Malaysia, which are listed as Part II of the Federal Constitution. Article 5(1) states that no person shall be deprived of his life or personal liberty, save in accordance with law.
In its landmark verdict on Nov 7 last year, the Court of Appeal recognised transgenders as having a gender identity disorder and hence declared Section 66 of the Negeri Sembilan syariah law, which subjects transgenders, locally known as ‘mak nyah’, to frequent arrests for cross-dressing as null and void.
The Negri Sembilan government has since filed an application for leave (permission) to appeal this decision, which will be heard by the Federal Court on Tuesday.