Cross-dressers and a non-Muslim shariah lawyer test Malaysia’s liberties

by - 10th August 2015

A NON-MUSLIM woman who trained as a shariah lawyer, and three cross-dressers seeking to have their rights recognized are setting the legal world alight in Malaysia this week.

Basic liberties are being tested in the highest court, creating precedents that could affect the delicate religious balance in the majority Muslim country.

The two cases will test the Federal Court bench as they pit Islamic enactments against the country’s Federal Constitution which is essentially secular.

At the heart of the two cases is a contest between civil secular federal law, and Islamic shariah law which governs religious affairs at the state level. 

At stake is the predominance of the Federal Constitution, bequeathed at independence by the British.  Articles 5, 8 and 10 relating to personal liberty, equality and freedom of speech, assembly and association are under the spotlight.

In the first case brought by the Federal Territories Islamic Religious Council (MAIWP), the Federal Court will hear an appeal as to whether the state’s Islamic law contravenes fundamental liberties set out in the Federal Constitution.

Only Muslims can practise as Syariah lawyers under Rule 10 of the Rules for Syariah Lawyers 1993.

Yet in 2010, lawyer Victoria Jayaseele Martin (53) who already had a diploma in Shariah Laws and Practice from the International Islamic University of Malaysia obtained a Masters in Comparative Laws from the same university.

She applied unsuccessfully to the court after the MAIWP turned down her application to be a Syariah lawyer on the grounds that she was a non-Muslim.

However, in 2013, the Court of Appeal ruled for Martin, saying that MAIWP’s refusal to accept her application contradicted a federal law which clearly stated that ‘any person’ with sufficient knowledge in Islamic law may be appointed as a Shariah lawyer.

According to press reports, MAIWP wants the Federal Court to rule that Islamic enactments be exempt from the fundamental liberties set out in the Federal Constitution.

Cross-dressing

In the second case, the Federal Court will listen to arguments as to whether state Islamic laws can criminalise cross-dressing.

In the State of Negeri Sembilan case, three transgender men were arrested and charged for breaking a state law which can imprison a man who dresses or poses as a woman in public for up to six months or a fine of US$250.

Muhamad Juzaili Mohd Khamis, 26, Shukor Jani, 28 and Wan Fairol Wan Ismail, 30 were arrested for breaking Section 66 of the Syariah Criminal (Negeri Sembilan) Enactment 1992, and filed a challenge in the High Court in 2012.

The trio said that the arrests contravened their freedom of expression and were against the Federal Constitution.

Last November, the Court of Appeal ruled against the state religious council, noting that the law violated provisions in the Federal Constitution.

The judge ruled that transgender males have the right to cross-dress, while the state religious authorities had failed to prove Islam’s position on how those who suffered from gender identity disorder should dress.

Justice Mohd Hishamudin Mohd Yunus said the three Muslims were proven by psychiatric and psychological tests to have gender identity disorder. The religious authorities did not rebut the medical evidence.

Malaysia has a parallel legal system with a federal civil law running alongside an Islamic enactments system at state level. In Malaysia, Shariah law is only permitted to rule on family and inheritance laws while the punishments the Shariah Court can mete out are restricted to a maximum of three years or US$1,300.