Brief facts
- The appellants were male Muslims suffering from Gender Identity Disorder (GID), as testified by medical practitioners.
- In 1992 NS state legislature enacted the Syariah Criminal Enactment.
- S 66 of Syariah Criminal Enactment makes it an offence for any Muslim male person to do any of the following in a public place: to wear a woman's attire, or to pose as a woman.
- Those convicted can be liable to a fine < RM1,000 or to imprisonment for a term < 6 months or to both.
- This section makes no exception for sufferers of GID like the appellants. No explanation has been given by the State for this unfortunate omission.
- They have been repeatedly detained, arrested, and prosecuted by the religious authority of Negeri Sembilan acting pursuant to section 66 for cross-dressing.
s66 is against
- Art 5(1) - cos it deprives A to live with dignity.
- Art 5(1) - cos prevent them from stepping out from the house to work (get caught immediately if go out dressed like a woman)
- Art 9(2) - cos no freedom of movement.
- Art 10(1) - cos it is against their freedom of expression! Shad Saleem Faruqi: 'symbolic speech' like one's dressing and grooming can be treated as part of one's freedom of expression.
Directly taken from the case report
1. The legislative competence of the State Legislature of Negeri Sembilan on matters pertaining to the religion of Islam
[23] Article 74(2) of the Federal Constitution read with List II (State List), item 1, of the Ninth Schedule empowers State Legislatures to legislate on matters pertaining to the religion of Islam.
[24] The present legislation comes under the following sub-item of item 1 of the State List -
... creation and punishment of offences by persons professing the religion of Islam against precepts of that religion...
[25] However, the exercise of this legislative power is not without constitutional limitations; for, Article 74(3) of the Federal Constitution stipulates that the legislative powers of the States are exercisable subject to any conditions or restrictions imposed with respect to any particular matter by the Federal Constitution.
2. The position of Islam under the Federal Constitution
[26] Islam is declared by Art 3(1) of the Federal Constitution to be the religion of the Federation.
[27] The meaning of 'Islam' in Art 3(1) is explained by the Supreme Court in Che Omar bin Che Soh v Public Prosecutor [1988] 2 MLJ 55 (at p. 56):
There can be no doubt that Islam is not just a mere collection of dogmas and rituals but it is a complete way of life covering all fields of human activities, may they be private or public, legal, political, economic, social, cultural, moral or judicial.
[28] After having said the above, Salleh Abas LP, proceeded to trace the history of Islam after the British intervention in the Malay States and came to the following conclusion (at p 56):
The question here is this: Was this the meaning intended by the framers of the Constitution? For this purpose, it is necessary to trace the history of Islam in this country after the British intervention in the affairs of the Malay States at the close of the last century.
Thus, it can be seen that during the British colonial period, through their system of indirect rule and establishment of secular institutions, Islamic law was rendered isolated in a narrow confinement of the law of marriage, divorce, and inheritance only. (See M.B. Hooker, Islamic Law in South-east Asia, 1984.)In our view, it is in this sense of dichotomy that the framers of the Constitution understood the meaning of the word 'Islam' in the context of Article 3. If it had been otherwise, there would have been another provision in the Constitution which would have the effect that any law contrary to the injunction of Islam will be void. Far from making such provision, Article 162, on the other hand, purposely preserves the continuity of secular law prior to the Constitution, unless such law is contrary to the latter.
[29] In short, the Supreme Court takes the position that it was the intention of the framers of our Federal Constitution that the word 'Islam' in Art 3(1) be given a restrictive meaning.
[30] But what is more important for the purpose of our judgment is the fact that Art 3(4) qualifies the status of Islam in following terms:
…(4) Nothing in this Article derogates from any other provision of this Constitution.
[31] What Art 3(4) means is that Art 3(1) is subject to, among others, the fundamental liberties provisions as enshrined in Part II of the Federal Constitution.
3. Laws inconsistent with the Federal Constitution are void.
[32] Article 4(1) of the Federal Constitution declares that the Federal Constitution is the supreme law of the Federation and any law passed which is inconsistent with the Federal Constitution shall, to the extent of the inconsistency, be void.
[33] Part II (Arts 5 to 13) of the Federal Constitution guarantees the fundamental liberties of all Malaysians.
[34] Reading Art 74(3) and Art 4(1) together, it is clear (and this legal position is not disputed) that all State laws, including Islamic laws passed by State legislatures, must be consistent with Part II of the Federal Constitution (which guarantees the fundamental liberties of all Malaysians).
4. Section 66 of the Syariah Criminal Enactment 1992 (Negeri Sembilan)
s66 reads: Any male person who, in any public place wears a woman's attire or poses as a woman shall be guilty of an offence and shall be liable on conviction to a fine not exceeding one thousand ringgit or to imprisonment for a term not exceeding six months or to both.
[36] Mufti opines that the prohibition of a male Muslim dressing or posing as a woman is a precept of Islam.
[39] But counsel for appellant makes a pertinent point: Mufti's Opinion fails to address the issue that is crucial for the purpose of the present constitutional challenge: what is the position in Islam as to the appropriate dress code for male Muslims who are sufferers of GID, like the appellants?
5. Whether section 66 is in breach of art 5(1) of the Federal Constitution
[40] Art 5(1) of the Federal Constitution guarantees that no person shall be deprived of his life and personal liberty save in accordance with law.
[41] The Federal Court in Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 3 CLJ 507 has held that -
- (i) other freedoms may be found embedded in the 'life' and 'personal liberty' limbs of art 5(1) (at para 13 of the judgment);
- (ii) 'in accordance with law' in art 5(1) refers to a law that is fair and just and not merely any enacted law however arbitrary or unjust it may be (at para 20 of the judgment); and
- (iii) when a law is challenged as violating a fundamental right under art 5(1), art 8(1) will at once be engaged: (at para 19 of the judgment)
6. Infringement of the right to live with dignity
[42] In Lembaga Tatatertib Perkhidmatan Awam Hospital Besar Pulau Pinang & Anor v Utra Badi K Perumah [2000] 3 CLJ 224 Gopal Sri Ram JCA (as he then was) in delivering the decision of the Court of Appeal explained that the word 'life' in Art 5(1) includes the right to live with dignity.
[44] Section 66 prohibits the appellants and all other male Muslim sufferers of GID from cross-dressing, and punishes them for any breach of the prohibition.
Effect: Appellants and other GID sufferers perpetually at risk of arrest and prosecution simply because they express themselves in a way which is part of their experience of being human. Their core identity is criminalized solely on account of their gender identity. Builds insecurity and vulnerability into the lives of the appellants and other Muslim male persons with GID. The existence of a law that punishes the gender expression of transsexuals, degrades and devalues persons with GID in our society. As such, section 66 directly affects the appellants' right to live with dignity, guaranteed by Art 5(1), by depriving them of their value and worth as members of our society.
Therefore, s66 - unconstitutional and void.
7. Infringement of right to livelihood/work
[48] There is yet another reason as to why section 66 is inconsistent with Art 5(1). It has also been established by judicial authorities that the word 'life' in Art 5(1) means more than mere animal existence: it also includes such rights as livelihood and the quality of life. In Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor.
[50] The effect of section 66 is that it prohibits the appellants and other sufferers of GID who cross-dress from moving in public places to reach their respective places of work.
[51] S 66 has the inevitable effect of rendering their right to livelihood/work illusory, for they will never be able to leave their homes, cross-dressed, to go to their respective places of work without being exposed to being arrested and punished under section 66. Section 66 is therefore inconsistent with Art 5(1).
8. Whether section 66 contravenes Art 8(1) of the Federal Constitution
[54] Appellants, male Muslims suffering from GID, are in a different situation as compared to normal male Muslims, should not be treated similarly as the normal male Muslims.
Yet s66 treat them equally, does not provide for any exception for sufferers of GID like the appellants. The State, although does not dispute the existence of sufferers of GID among male Muslims such as the appellants, yet does not explain for such a serious legislative omission.
In other words, the State and the impugned section simply ignore GID sufferers such as the appellants, and unfairly subject them to the enforcement of the law.
As a consequence, they could not dress in public in the way that is natural to them. They will commit the crime of offending section 66 the very moment they leave their homes to attend to the basic needs of life, to earn a living, or to socialize; and be liable to arrest, detention and prosecution.
This is degrading, oppressive and inhuman. Thus the inclusion of persons suffering from GID in the section 66 prohibition discriminates against them. Therefore, section 66 is inconsistent with Art 8(1) of the Federal Constitution as it is discriminatory and oppressive, and denies the appellants the equal protection of the law.
9. Whether section 66 contravenes Art 8(2) of the Federal Constitution
[57] Art 8(2) of the Federal Constitution states that in any law there shall be no discrimination against citizens on the ground of gender.
[58] Section 66 only prohibits male Muslims from cross-dressing or from posing as a woman in public. But this section does not prohibit female Muslims from cross-dressing as a man or from posing as a man in public. It is argued that section 66 thus subjects male Muslim persons like the appellants to an unfavourable bias vis a vis female Muslim persons. Therefore, section 66 is discriminatory on the ground of gender, and is inconsistent with Art 8(2).
RESPONDENT COUNSEL'S ARGUMENT (REJECTED):
Section 66 is 'personal law' for the purpose of Art 8(5)(a) - permits the making of personal laws that discriminate on account of gender or other factors in Art 8(2).
[61] It must be appreciated that section 66 is not enacted pursuant to the particular sub-item of Item 1 of List II of the Ninth Schedule that refers to personal law:
… Islamic law and personal and family law of persons professing the religion of Islam, including the Islamic law relating to succession, adoption, legitimacy, guardianship, gifts, partitions and non-charitable trusts;
[62] Section 66 is in fact enacted pursuant to that particular sub-item of Item 1 of List II that states -
… creation and punishment of offences by persons professing the religion of Islam against precepts of that religion...
[63] Thus section 66 is not personal law.
10. Whether section 66 is inconsistent with Art 9(2) of the Federal Constitution
[65] Section 66 is explicit in criminalizing any Muslim man who in any public place wears a woman's attire or poses as a woman.
[66] Not merely restrict the appellants' freedom of movement - actually deny appellants and sufferers of GID of the right to move freely in public places. Effect: never be able to leave their homes and move freely in the State of Negeri Sembilan without being exposed to being arrested and punished under section 66. S 66 denies the appellants and other male Muslim sufferers of GID of their right to freedom of movement. Hence, unconstitutional.
[68] Even if regard section 66 as a restriction and not denial of the right to move freely within the country, still, such restriction has to be reasonable, according to judicial authorities (see Sivarasa Rasiah, Dr Mohd Nasir Hashim v Menteri Dalam Negeri Malaysia [2007] 1 CLJ 19; and Muhammad Hilman Idham & Ors v Kerajaan Malaysia & Ors [2011] 9 CLJ 50). S 66 is an unreasonable restriction of the appellants' right to freedom of movement - and hence unconstitutional as being inconsistent with Art 9(2) of the Federal Constitution.
11. Whether section 66 is in breach of Art 10(2) of the Federal Constitution
[70] A person's dress, attire or articles of clothing are a form of expression, which in our view, is guaranteed under Art 10(1)(a).
[71] Professor Shad Saleem Faruqi in his book Document of Destiny, the Constitution of the Federation of Malaysia, expresses the view that even 'symbolic speech' like the manner of one's dressing and grooming can be treated as part of one's freedom of expression.
[72] Landmark American Supreme Court case of Tinker v Des Moines Independent Community School District]. In Tinker, it was held that a school regulation which prohibited students from wearing black armbands to silently protest against the United States Government's policy in Vietnam was violative of the First Amendment to the United States Constitution, which guaranteed free speech: (pg 513–514)
[73] Section 66 directly affects the appellants' right to freedom of expression, in that they are prohibited from wearing the attire and articles of clothing of their choice.
[74] Art 10(2)(a) states that only Parliament may restrict freedom of expression in limited situations; and so long as such restrictions are reasonable.
[75] The State Legislative Assemblies in Malaysia (and this includes the State legislature of Negeri Sembilan) have no power to restrict freedom of speech and expression. Only Parliament has such power. This is confirmed by the Supreme Court in Dewan Undangan Negeri Kelantan & Anor v Nordin Salleh Anor[1992] 1 CLJ 72 (Rep) at 82:
Next it must be observed that Article 10(2) of the Federal Constitution provides that only Parliament may by law impose those restrictions referred to in Article 10(2), (3) and (4) of the Federal Constitution. Therefore even if any such restriction purported to have been imposed by the Constitution of the State of Kelantan was valid, and it is not, it is clear that the restriction could not be imposed by a law passed by any State Legislature. That would be another ground why Article XXXIA of the Constitution of Kelantan should be invalidated.
[76] Section 66 is a State law that criminalizes any male Muslim who wears a woman's attire or who poses as a woman in a public place. Hence, section 66 is unconstitutional since it is a law purporting to restrict freedom of speech and expression but it is a law not made by Parliament.
[77] Moreover, any restriction on freedom of expression must be reasonable - Sivarasa Rasiah
[78] Clearly, the restriction imposed on the appellants and other GID sufferers by section 66 is unreasonable. Thus, also from the aspect of reasonableness, section 66 is unconstitutional.
CONCLUSION
[94] S 66 is invalid as being unconstitutional. It is inconsistent with Arts 5(1), Art 8(1) and (2), Art 9(2), and Art 10(1)(a) of the Federal Constitution.
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