PETALING JAYA: Jabatan Agama Islam Pahang (JAIP)’s new syariah law to prosecute cross-dressers is unconstitutional as enactments made by a state-empowered body must be grounded on an appropriate legislative competence and should not overrule fundamental liberties, said syariah lawyer Nizam Bashir Abdul Kariem Bashir.
Although the federal constitution provides power to states to pass Islamic laws, it does not give them a blank cheque in drafting legislation, he explained.
“The power for states to enact laws, even Islamic ones is subject to conditions. The state cannot enact laws, which encroach upon fundamental rights guaranteed under the federal constitution. In this case, the new law is at odds with article 10 of the constitution which guarantees every citizen the right to freedom of expression.”
On Thursday, Pahang Islamic Religious and Malay Customs Council (Muip) deputy president Datuk Seri Wan Abdul Wahid Wan Hassan said those arrested under the new Syariah Criminal Offences Enactment 2013 could face a maximum of a year’s jail or be fined up to RM1,000 or both if convicted.
Deputy Director of the Pahang Islamic Religious Department (JAIP) Datuk Mohd Ghazali Abdul Aziz added that the ruling is to discourage such activities from being rampant because existing systems are ineffective.
There is one exception to article 10, which states that parliament can restrict the right to expression.
“However, no equivalent right to restrict expression is granted to state legislative assemblies,” said Nizam and explained that consequently, the state department is acting beyond its rights in regulating attire.
He added that in any event, there must be a concrete link between cross-dressing attire and immoral activities before one may justify such an action, and that laws should not based on vague probabilities.
“If you refer to the Quran, surah An-Nur verse 30 and 31, at best it only talks of modest attire and nothing more. Nevertheless, to be fair, the position does become more nuanced if Hadith (the Prophet’s sayings) are accounted for"
“When states proposes to enact any Islamic law, they must first be able to characterise the legislation as conforming to Islamic law.
“ If the Quran is accepted as the primary source of Islamic law, then state legislative assemblies are legislatively incompetent to enact laws regulating attire,” he said, adding that the new law will see a waste of resources and that it is better spent allocating aid to single mothers and other needy.
Thilaga Sulathireh,co-founder of NGO Justice for Sisters, argued that the new Syariah ruling is problematic as it will sideline and demonise the LGBT (Lesbian, Gay, Bisexual and Transsexual) community by labelling them as as ‘anti-Islam’.
“This move didn’t come as a shock because similar laws have already been introduced in a few other states. The two sections pertaining to 'cross dressing' were introduced in May 2012. However, the fact that conversation on the matter has restarted is worrying,” added the activist.
“The transgender community has suffered violence in the past due to state prosecution. Instead of prosecuting them, it is the state's duty to protect and promote the rights of all, regardless of one's gender identity and expression.
“When the stance of the government is that individuals who ‘cross dress’ are criminals, this oppression will shut down access to their other rights - for example, recognition of gender which directly affects their access to healthcare and employment.
She concluded that in passing this law, the stigma, discrimination and violence towards the transgender community and gender non-conforming individuals would only be reinforced.