Malaysia: Mahkamah akan memutuskan Hak Golongan Transgender*
Quick note: Ying gets to take over Poppy this week because one of us has to be a productive member of society.
Last week, the Federal Court of Malaysia upheld the constitutionality of the syariah law in Negeri Sembilan prohibiting Muslims from cross-dressing (s 66 of the Syariah Criminal Enactment 1992). This is a reversal of the Court of Appeal’s landmark decision last November which declared the law unconstitutional, calling the provision “degrading, oppressive and inhumane”.
The respondents in this case are four Muslim bridal make-up artists who were arrested while attending a wedding ceremony. The particular cruelty of the Islamic authorities in choosing the wedding ceremony of the mak nyahs’ clients as a location for a raid is striking, and speaks volumes of the capacity of the authorities for both personal and professional humiliation. In light of this, the bravery, resilience and resourcefulness of the mak nyah community in pursuing their constitutional rights, right up to the highest level of the courts, is nothing short of inspirational.
The mak nyahs’ case was dismissed on the grounds of their failure to abide by Art 4(4) of the Federal Constitution: "Proceedings for a declaration that a law is invalid ... shall not be commenced without the leave of a judge of the Federal Court”. I don’t agree with this particular cop-out. Prima facie, it’s true that the mak nyahs’ lawyers failed to seek leave from a Federal judge. (I imagine the reason behind this has more to do with the judges’ lack of sympathy than any sort of incompetence or oversight on their part of their lawyers.)
But when applying a constitutional law it may also be necessary to look to the purpose of the law. As the Federal judges pointed out, the purpose of Article 4(4) is to ensure that "frivolous or vexatious proceedings for such declarations are not commenced”. There is quite some room to argue that this case was neither frivolous nor vexatious, given the level of domestic and international scrutiny it has attracted since 2011 and its potential to affect a minority group that has been systematically disenfranchised for decades, and at an increasing rate in recent times to boot. Unfortunately for all of us the respondents’ lawyers chose a different argument that failed, and the Federal Court sidestepped the opportunity to discuss the actual issue of whether the law did infringe upon the human rights sections of the Constitution.
More troubling questions also arise on a broader level. How prepared is the Federal Court to decide on the constitutionality of any syariah law, given the increasing Islamisation of society (and arguably the demographic of the Federal Court judges)? Are syariah laws above the law now, so to speak? Former CJ Abdul Hamid certainly thinks so: in response to the November ruling, he lamented that “[w]hen Islamic law can be challenged on grounds of being 'unreasonable' by judges, including non-Muslim judges, then Islamic laws will constantly be exposed to being invalidated.” If syariah laws can be invalidated (even though they have never been) by the Constitution, what is the best way to interpret the Constitution? Is it true that, as Mr Abdul Hamid says, that there is an ‘Islamic’ standard of interpretation that is different from the ‘liberal Western’ view? Conversely, if syariah laws cannot be invalidated, what does this mean for Muslim Malaysians? Lawyers and advocates have suggested that it means that “Muslims in this country would not enjoy the constitutional protections that non-Muslims will enjoy.”
On a brighter note, the case has certainly generated a great deal of publicity and goodwill for the mak nyahs over the last three years. Islamic and women’s based groups have spoken up to voice their support for and solidarity with Justice for Sisters, the organisation set up by Nisha Ayub (one of the four litigants). There remains a legislative avenue for the community to further their pursuit for justice. One can only hope.
*Translates to “Court Ruling on Rights of the Transgender Community”.