PUTRAJAYA: The Negri Sembilan state government has been allowed by the Federal Court to appeal against a ruling that criminalising cross-dressing is unconstitutional.
In granting the appeal, the panel led by Court of Appeal president Justice Md Raus Sharif allowed one question of law: on whether Section 66 of the Syariah Criminal (Negri Sembilan) Enactment 1992 contravened Articles 5(1), 8(1), 8(2), 9(2), 10(1)(a) of the Federal Constitution.
The Negri Sembilan government had sought leave to appeal against the landmark decision by the Court of Appeal which declared Section 66 of the Enactment null and void.
Four other parties – the Negri Sembilan Islamic Affairs department, its director, the state's Syariah enforcement chief, and prosecution chief – were also among the applicants in the appeal.
The state government's lawyer, Tan Sri Muhammad Shafee Abdullah had submitted seven questions of law, including whether the Court of Appeal had jurisdiction to hear questions of constitutionality and if it was premature in voiding the enactment before a criminal case was tried before the Syariah Court.
The Federal Court panel had earlier unanimously allowed the Negri Sembilan Islamic Religious Council's application to be an intervenor in the appeal.
However, Justice Md Raus dismissed similar applications by other Islamic Religious Councils – from the Federal Territory, Selangor, Perak, Johor, and Penang – ruling that the parties could only enter as friends of the court.
On Nov 7 last year, the Court of Appeal panel lead by Justice Mohd Hishamudin Mohd Yunus ruled that criminalising cross-dressing for Muslims was an unreasonable restriction of individuals' freedom of expression.This reversed the Seremban High Court's decision on Oct 11, 2012 to dismiss a judicial review by three transgenders against the Syariah Enactment.
The applicants – Muhamad Juzaili Mohd Khamis, 26, Shukor Jani, 28, and Wan Fairol Wan Ismail, 30, also sought a court order to prohibit their arrest and prosecution under the section.
Currently, Section 66 allows the Syariah Court to punish any man who dresses or poses as a woman with up to six months in prison or be fined a maximum RM1,000; even if they had a Gender Identity Disorder.