WHEN the Court of Appeal declared a state syariah law criminalising cross-dressing as unconstitutional last year, many felt that the landmark ruling has nothing to do with them.
They are wrong, says Bar Council constitutional law committee co-chair Firdaus Husni.
The decision impacts all of us, says Firdaus.
As she points out, the ruling upholds four out of the nine basic human rights promised under the Federal Constitution: Article 5 which guarantees the right to live with dignity, Article 8 that ensures gender equality, Article 9 for freedom of movement and Article 10 for freedom of speech and expression.
In the landmark case mentioned, the three Muslim transgender bridal make-up artists in Negri Sembilan decided to challenge Section 66 of the state’s Syariah Criminal Enactment 1992 after it was used to continuously intimidate, arrest and finally convict them in the religious court. The use of Section 66 against them deprived the three of their basic rights, particularly to leave their house without fear and to live with dignity.
As the appellate court heard, the three transwomen have been diagnosed with a medical condition called gender identity disorder (now classified as gender dysphoria by the Diagnostic and Statistical Manual of Mental Disorders or DSM-5) which means their gender at birth is contrary to the one they identify with.
The condition, they claimed, led them to dress in female attire as it is the essence of the gender they identify with – as women.
As stated in the court’s judgement, Section 66 directly affects the three’s right to freedom of expression in that they are prohibited from wearing the attire and articles of clothing of their choice.
Firdaus stresses that freedom of expression is one of the fundamental liberties that are not incompatible with Islam, and as these fundamental rights are guaranteed by the Federal Constitution, this shows that the constitution is also congruous with Islam.
Justice is the core of Islam, she says. It protects the basic rights of all, regardless of the individual’s background or beliefs.
Similarly, the Federal Constitution belongs to all of us, she argues.
“It provides for all Malaysians. It guarantees one’s fundamental liberties. It provides for good governance by setting out the powers of the government and institutions, as well as limits of those powers. It provides for a justice system. It provides for safeguards so that those in power do not arbitrarily take away protection provided by the Constitution for its people. I fail to see what is unIslamic about these.”
Firdaus believes it is not productive to look at the Federal Constitution, fundamental liberties and Islam as entirely exclusive of each other.
“We are taught that one wonderful feature of the religion of Islam is that it is universal. Unfortunately in Malaysia, at times this does not seem to translate in the exercise of one’s fundamental liberties as guaranteed under the Federal Constitution.”
It is also for these reasons that all of us as Malaysians have the duty to preserve, protect and defend the Constitution, she adds.
“If we don’t, what the Constitution seeks to provide, guarantee and protect will be meaningless.”
And while there is no such thing as absolute freedom or liberty, notes Firdaus, there is nothing that suggests that current civil laws are not Islamic.
“What has been the debate is rather the limit or extent of that liberty or freedom notwithstanding a debate in Islam or as a Western idea. To reconcile fundamental liberties as guaranteed by the Constitution with Islamic laws is to look at the bigger picture and find common grounds between the two. That common ground is the aim to achieve justice and fairness.
“Most times, we are too fixated on labels. If a law or anything for that matter does not, on its surface, appear to have any Islamic elements, then surely it is not Islamic and therefore bad. When a law is just and fair, isn’t that what Islam is all about too?”
Thus, as Article 4 provides that the Federal Constitution is the supreme law in Malaysia and any law passed which is inconsistent with the Consistent shall, to the extent of inconsistency, be void, the validity of Islamic laws, or any laws applicable in Malaysia, can be measured against what is provided under the Federal Constitution, says Firdaus.
“The word “law” under Article 160 of the Federal Constitution includes written law, the common law as far as applicable and any custom or usage having a force of law. Neither Article 4 nor Article 160 makes any exception on Islamic laws.
“Therefore, Islamic laws in Malaysia can and must be measured against constitutional rights to determine its validity,” she says.
Firdaus dismisses the fear that if any challenge to the Syariah Law is allowed, it will open the floodgates to other constitutional challenges on our Syariah law.
“This fear is unfounded,” she asserts.
“The challenge against Section 66 of the Negri Sembilan Syariah Criminal Enactment, for instance, is not the first time a Syariah law has been challenged. All laws applicable in the country including Islamic laws have to be measured against the Federal Constitution, and any inconsistency with the latter is void, as set out in Article 4 of the Federal Constitution. Article 4 is not a new law or inclusion into the Federal Constitution. Article 4, declaring supremacy of the Constitution, was already in existence when the Constitution first came into force on Aug 31, 1957. What the individuals in the challenge against Section 66 of the Negri Sembilan Syariah Criminal Enactment did is merely to go back to the Federal Constitution,” says Firdaus.
For constitutional expert Emeritus Prof Datuk Dr Shad Saleem Faruqi, opening the floodgates can have a positive effect, and may even be necessary for Malaysia as a maturing nation.
“Well, if there are no floodgates, if floodwater is not allowed to flow out a little bit, it will burst out from the pressure that builds up and the dam will collapse,” Dr Shad Saleem philosophises.
The main issue, he underlines, is whether we believe that the Federal Constitution is supreme.
“That is the question we need to ask ourselves – is our Federal Constitution supreme or not?
“When our document of destiny was drafted in 1957 and substantially reconstituted in 1963, the following core features illuminated its content: The Constitution is supreme. Any law, whether federal or state, primary or secondary, enacted before or after Merdeka, which infringes the glittering generalities of our basic law is void.”
Says Dr Shad Saleem, this includes the provisions on fundamental rights (Articles 5-13), federal-state division of powers and legislative procedures.
“The civil courts have the power to review all legislation on the touchstone of constitutionality including the Syariah law.
“Though Islam has the exalted position of being the religion of the federation, Article 3(4) says, “Nothing in this Article derogates from any other provision of this Constitution”.
Dr Shad Saleem adds that while it is better to go straight to the apex court of the country, the Federal Court, when challenging any state laws including Syariah Law, cases that concern laws that are against human rights can be handled by all civil courts.
“To prevent any danger of bias, it is better to go to one court, and the Federal Court is the best to handle the issue.
“However, when it involves the fundamental rights of a citizen, any court should be able to handle it, including the lower courts. The lower courts can always refer the case to the higher court should they choose to. There is no need to invoke Article 4 of the Federal Constitution; there are literally hundreds of cases concerning fundamental rights here that were handled by the High Court,” he says.
Citing Bank Islam v Adnan Omar (1994) and Che Omar Che Soh v PP (1988), he adds, the assertion that all Islamic civil and criminal laws are within state jurisdiction has no constitutional basis.
And while the contention that the “Islamic law” must be interpreted broadly as Islam is the supreme religion of the country and reflects “a complete way of life”, Dr Shad argues that the Syariah law is just a creation of human beings – they can be challenged and we should be allowed to challenge them.
“A large part of what is referred to as Syariah Law here in this country is actually a mix of Malay adat (traditions) and Islamic law only from the Shafie school of Islam,” he opines.
“It does not encompass the majestic width, breadth and depth of Islamic jurisprudence. The Shafie school of jurisprudence is also often the most extreme and conservative and obscurantist view of the law.”
Basically our Syariah Law is confined to a very narrow definition of the law, Dr Shad notes.
“The Syariah laws enacted by the various agencies here reflect the wisdom of the drafters of the laws, not necessarily the wisdom of God.”
In fact, Dr Shad believes there is selective persecution in our Syariah Law, as he cites the case of three Muslim women in Selangor who were charged under Sect 2 (C) of the Syariah Crimes Enactment Selangor 1995 for competing in a beauty pageant which is a violation of the religious edict from the National Fatwa Council that prohibits Muslim women from participating in beauty contests.
“If aurat (nakedness or shame) is the issue, then why doesn’t the same law apply to Muslim men who compete in Mr Universe and bodybuilding championships? Why is it all right for Muslim men to parade on stage in their underwear?” he argues.
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