KUALA LUMPUR, Oct 12 — A High Court ruling against Muslim transsexuals in Negri Sembilan yesterday is raising concerns that Islamic law is now supplanting the Federal Constitution as the country's supreme law, legal experts have said.
Civil liberties lawyer Syahredzan Johan and law lecturer Azmi Sharom told The Malaysian Insider that there is a worrying trend that the judiciary has been putting Islamic law above all other laws in Malaysia's dual-track court system - pointing to yesterday's judgment as an example of an erosion of the Federal Constitution.
“There is a worrying trend in which the judiciary appears to place Islamic enactments on a higher pedestal than the Constitution.
Who needs a safety net against Islam? Only diehard Islamophobes would dare ask such a question.
“Islam is the religion of the Federation, but that does not mean that 'Islam', or what the authorities deem as 'Islam', supersedes other Constitutional provisions,” Syahredzan said.
High Court judge Datuk Siti Mariah Ahmad had dismissed a challenge by a group of Muslim transsexuals to an Islamic legal provision barring men from wearing women's clothes or dressing up as females, saying Muslims cannot be exempted from Syariah [sharia] legal provisions.
The judge had also ruled that Part II of the Federal Constitution - which guarantees Malaysians fundamental liberties such as equality before the law, freedom of religion, and which prohibits slavery and enforced labour among others - is exempted by section 66 of the Negri Sembilan Syariah Criminal Enactment 1992, according to lawyer Aston Paiva, who represented the transsexuals.
He said the judge had relied on the religious opinion on the Negri Sembilan mufti to justify section 66 in making her oral ruling. He added that the written judgment of the case was not yet available and the judge had not indicated when it would be released.
Section 66 of the state's Islamic criminal code states that “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 RM1,000 or to imprisonment for a term not exceeding six months or both.”
Syahredzan said the Seremban High Court ruling followed an earlier Federal Court decision in which it was held that Islam must be protected “at all costs”.
“The Supreme Court in the case of Che Omar Che Soh is clear on this; provisions relating to Islam must receive secular fiats to become law,” he said, adding that it meant the proposed laws must be passed by Parliament or the State Legislative Assemblies. “It also means that laws enacted, regardless of whether they are Syariah enactments or Acts of Parliament must be subjected to and consistent with the Constitution,” he said.
Azmi, an associate professor at Universiti Malaya's (UM) law faculty, went a step further.
“It is going to give a carte blanche to state legislative assemblies, Islamic religious departments and muftis to make any laws that go against the Constitution simply by saying it is Islamic and circumnavigating the Constitution.
“If you do not respect this basic rule, then what safety net do we have as citizens?” he asked.