6 Shariah Reports [2015] 1 SHR

MUHAMAD JUZAILI MOHD KHAMIS & ORS A

v.
STATE GOVERNMENT OF NEGERI SEMBILAN & ORS

COURT OF APPEAL, PUTRAJAYA B

HISHAMUDIN MOHD YUNUS JCA
AZIAH ALI JCA
LIM YEE LAN JCA
[CIVIL APPEAL NO: N-01-498-11-2012]
2 JANUARY 2015 C
[2015] CLJ JT(2)

ADMINISTRATIVE LAW: Judicial review – Application for –

Application for declaration that s. 66 Syariah Criminal (Negeri Sembilan)
Enactment 1992 is void for prescribing cross-dressing in public as offence D
for Muslim men – Whether Muslim men suffering from Gender Identity
Disorder excluded from being convicted for offence under s. 66 – Whether
s. 66 constitutional – Whether consistent with Part II of Federal Constitution
– Federal Constitution, arts. 4(1), 5(1), 8(1), (2), 9(2) & 10(1)(a)

CIVIL PROCEDURE: Judicial review – Validity of law – State E

Legislature prescribes cross-dressing in public as offence for Muslim men

under s. 66 Syariah Criminal (Negeri Sembilan) Enactment 1992 –
Whether s. 66 makes exception for Muslim men suffering from Gender
Identity Disorder – Whether s. 66 constitutional – Whether s. 66
consistent with principles of fundamental liberties under arts. 5(1), 8(1), F

(2), 9(2) & 10(1)(a) Federal Constitution

CONSTITUTIONAL LAW: Fundamental liberties – Deprivation –

Right to life, movement, expression and equal protection under law –
Conviction of Muslim men who expressed themselves as women in public G
– Offence under s. 66 Syariah Criminal (Negeri Sembilan) Enactment
1992 – Whether Muslim men suffering from Gender Identity Disorder
rightfully convicted under s. 66 – Whether s. 66 recognises Gender Identity
Disorder – Whether s. 66 in breach of fundamental liberties under Part
II of Federal Constitution – Federal Constitution, arts. 5(1), 8(1), (2), H
9(2) & 10(1)(a)

CONSTITUTIONAL LAW: Federal and State law – Conflict –

Matters of Islamic law – Section 66 Syariah Criminal (Negeri Sembilan)
Enactment 1992 prescribes cross-dressing in public as offence for Muslim I
men – Whether consistent with fundamental rights under arts. 5(1), 8(1),
(2), 9(2) & 10(1)(a) Federal Constitution – Supremacy of Federal
Constitution – Federal Constitution, arts. 4(1) & 74(3)
 Muhamad Juzaili Mohd Khamis
& Ors v. State Government of
[2015] 1 SHR Negeri Sembilan & Ors 7

A ISLAMIC LAW: Syariah offences – Cross-dressing in public – Offence

of Muslim men dressed in women’s attire and posing as women in public
– Syariah Criminal (Negeri Sembilan) Enactment 1992, s. 66 – Whether
s. 66 should apply to Muslim men who suffer from Gender Identity
Disorder – Whether s. 66 discriminates against Muslim men suffering
B from Gender Identity Disorder – Constitutionality of s. 66 – Whether
consistent with fundamental rights under arts. 5(1), 8(1), (2), 9(2) &
10(1)(a) Federal Constitution

The appellants were Muslim men who expressed themselves as

C women by wearing feminine clothes and applying makeup and had
been diagnosed with a medical condition known as Gender
Identity Disorder (‘GID’). Even though the medical condition
suffered by the appellants was confirmed by a psychiatrist and a
psychologist, s. 66 of the Syariah Criminal (Negeri Sembilan)
D Enactment 1992 (‘the Enactment’) does not recognise GID and
prescribes it as an offence for any male Muslim person to wear a
woman’s attire or to pose as a woman. Those convicted for the
offence are liable to a fine not exceeding RM1,000 or to
imprisonment for a term not exceeding six months or both.
E Pursuant to this provision, the appellants had been repeatedly
detained, arrested and prosecuted by the religious authority of
Negeri Sembilan. This prompted the appellants to apply for a
judicial review in the High Court for a declaration that s. 66 of
the Enactment is void as it is inconsistent with arts. 5(1), 8(1) and
F (2), 9(2) and 10(1)(a) of the Federal Constitution (‘the
Constitution’). The application was dismissed by the High Court
and hence, the present appeal. In support of their notion that
s. 66 of the Enactment is inconsistent with the abovementioned
articles of the Constitution, the appellants brought forth the
G submissions that the said section (i) caused the appellants, along
with other GID sufferers, to be perpetually at risk of arrest and
prosecution and directly affected the appellants’ right to live with
dignity, as guaranteed by art. 5(1) of the Constitution; (ii) is
discriminatory, oppressive and denies the appellants from the equal
H protection of the law, and inconsistent with art. 8(1) of the
Constitution; (iii) is discriminatory of gender, and inconsistent with
art. 8(2) of the Constitution, as s. 66 of the Enactment only
prohibits male Muslims from cross-dressing or posing as a woman
in public whereas there is no such prohibition against female
I Muslims from cross-dressing or posing as a man in public; (iv)
denies the appellants and other male Muslim sufferers of GID of
their right to freedom of movement as enshrined under art. 9(2)
of the Constitution; and (v) directly affects the appellants’ right to
8 Shariah Reports [2015] 1 SHR

freedom of expression, guaranteed by art. 10(1)(a) of the A

Constitution, in that they are prohibited from expressing
themselves by wearing the attire and articles of clothing of their
choice. The respondents argued that s. 66 of the Enactment was
not prejudicial to the appellants as they were persons of unsound
mind and were entitled to the defence accorded by s. 11 of the B
Enactment.

Held (allowing appeal; granting application for judicial

review)
Per Hishamudin Mohd Yunus JCA delivering the judgment C
of the court:

(1) Section 66 of the Enactment is inconsistent with art. 5(1) of

the Constitution as it deprives the appellants of their right to
live with dignity. Section 66 is irreconcilable with the existence
D
of the appellants and all other GID sufferers. A law that
punishes the gender expression of transsexuals degrades and
devalues persons with GID in our society. Furthermore, ‘life’
in art. 5(1) means more than mere animal existence; it also
includes such rights as livelihood and the quality of life. The
E
effect of s. 66 is that it prohibits the appellants and other
GID sufferers who cross-dress from moving in public places to
reach their respective workplaces. (paras 44, 46, 48 & 50)

(2) The State and s. 66 of the Enactment simply ignored GID

sufferers such as the appellants and unfairly subject them to F
the enforcement of law. The appellants should not be treated
similarly as normal Muslims yet s. 66 provides for equal
treatment and does not provide for any exception for sufferers
of GID. The inclusion of persons suffering from GID under
s. 66 discriminates against them and is therefore inconsistent G
with art. 8(1) of the Constitution. (para 54)

(3) Section 66 of the Enactment is discriminatory on the ground

of gender and therefore, violates art. 8(2) of the Constitution
as it subjects male Muslim persons like the appellants to an H
unfavourable bias vis-à-vis female Muslim persons. (paras 58
& 59)

(4) Section 66 of the Enactment is explicit in criminalising any

Muslim man who wears a woman’s attire or poses as a
I
woman in any public place. The section cannot be said to
merely restrict the appellants’ freedom of movement as the
impact is more severe than that. Section 66 denies the
 Muhamad Juzaili Mohd Khamis
& Ors v. State Government of
[2015] 1 SHR Negeri Sembilan & Ors 9

A appellants and sufferers of GID the right to move freely in

public places. In effect, the appellants and other male Muslim
sufferers of GID will never be able to leave their homes and
move freely in Negeri Sembilan without being exposed to being
arrested and punished. As such, s. 66 is inconsistent with
B art. 9(2) of the Constitution. (paras 65, 66 & 67)

(5) A person’s dress, attire or articles of clothing are a form of

expression which is guaranteed under art. 10(1)(a) of the
Constitution. The State Legislature of Negeri Sembilan has no
C power to restrict freedom of speech and expression. Section
66, a State law that criminalises any male Muslim who wears
a woman’s attire or who poses as a woman in public, directly
affected the appellants’ right to freedom of expression in that
they are prohibited from expressing themselves. Hence, the
D restriction imposed on the appellants and other GID sufferers
was unreasonable. (paras 73, 75 & 76)

(6) In the absence of medical evidence, it is absurd and insulting

to suggest that the appellants and other transgender persons
are persons of unsound mind. (para 93)
E
(7) Article 4(1) of the Constitution declares that the Constitution
is the supreme law of the Federation and any law passed
which is inconsistent with the Constitution shall, to the extent
of the inconsistency, be void. Reading arts. 74(3) and 4(1)
F together, it is clear that all State laws, including Islamic laws
passed by State Legislatures, must be consistent with Part II
of the Constitution which guarantees the fundamental liberties
of all Malaysians. Therefore, s. 66 of the Enactment is invalid
as being unconstitutional. It is inconsistent with arts. 5(1),
G 8(1) and (2), 9(2) and 10(1)(a) of the Constitution. (paras 32,
34 & 94)

Bahasa Malaysia Translation Of Headnotes

Perayu-perayu merupakan lelaki-lelaki Muslim yang mengekspresikan

H
diri mereka sebagai wanita dengan memakai pakaian wanita dan
alat solek serta telah didiagnos dengan keadaan perubatan yang
dikenali sebagai Gender Identity Disorder (‘GID’). Walaupun keadaan
perubatan yang dialami oleh perayu-perayu telah disahkan oleh
pakar psikiatri dan pakar psikologi, s. 66 Enakmen Jenayah Syariah
I
Negeri Sembilan 1992 (‘Enakmen’) tidak mengiktiraf GID dan
menetapkan ia sebagai satu kesalahan bagi mana-mana lelaki
Muslim yang memakai pakaian wanita atau berlagak seperti wanita.
10 Shariah Reports [2015] 1 SHR

Sesiapa yang disabitkan atas kesalahan boleh dikenakan denda A

tidak melebihi RM1,000 atau dipenjarakan bagi tempoh tidak
melebihi enam bulan atau kedua-duanya. Berikutan peruntukan ini,
perayu-perayu berulang kali ditahan, ditangkap dan didakwa oleh
pihak berkuasa agama Negeri Sembilan. Ini mendorong perayu-
perayu untuk memohon semakan kehakiman di Mahkamah Tinggi B
bagi satu pengisytiharan bahawa s. 66 Enakman adalah tidak sah
kerana ia bercanggah dengan per. 5(1), 8(1) dan (2), 9(2) dan
10(1)(a) Perlembagaan Persekutuan (‘Perlembagaan’). Permohonan
ini ditolak oleh Mahkamah Tinggi dan oleh itu, rayuan ini. Sebagai
menyokong tanggapan mereka bahawa s. 66 Enakmen bercanggah C
dengan perkara-perkara Perlembagaan yang telah dinyatakan,
perayu-perayu mengemukakan hujahan bahawa seksyen tersebut (i)
menyebabkan perayu-perayu, bersama-sama dengan mereka yang
mengalami GID, sentiasa dalam risiko ditangkap dan didakwa dan
memberi kesan langsung kepada hak perayu-perayu untuk hidup D
bermaruah, seperti yang dijamin oleh per. 5(1) Perlembagaan; (ii)
mendiskriminasi, menindas dan menafikan hak perayu-perayu
daripada perlindungan undang-undang dan bercanggah dengan
per. 8(1) Perlembagaan; (iii) mendiskriminasikan jantina dan
bercanggah dengan per. 8(2) Perlembagaan kerana s. 66 Enakmen E
hanya melarang lelaki-lelaki Muslim daripada berpakaian atau
berlagak seperti wanita di khalayak ramai sedangkan tiada larangan
sedemikian terhadap wanita-wanita Muslim daripada berpakaian
atau berlagak seperti lelaki di khalayak ramai; (iv) menafikan
perayu-perayu dan lain-lain lelaki Muslim yang mengalami GID F
daripada hak kebebasan mereka untuk bergerak seperti yang
termaktub dalam per. 9(2) Perlembagaan; dan (v) memberi kesan
langsung kepada hak bersuara, seperti yang dijamin oleh
per. 10(1)(a) Perlembagaan, dalam mana mereka dilarang daripada
mengekspresikan diri mereka dengan memakai pakaian dan artikel G
pakaian pilihan mereka. Responden-responden menghujahkan
bahawa s. 66 Enakmen tidak memprejudiskan perayu-perayu
kerana mereka tidak sempurna akal dan berhak ke atas pembelaan
di bawah s. 11 Enakmen.
H
Diputuskan (membenarkan rayuan; membenarkan permohonan
bagi semakan kehakiman)
Oleh Hishamudin Mohd Yunus HMR menyampaikan
penghakiman mahkamah:
I
(1) Seksyen 66 Enakmen bercanggah dengan per. 5(1) Perlembagaan
kerana ia menafikan perayu-perayu akan hak mereka untuk
hidup bermaruah. Seksyen 66 tidak serasi dengan kewujudan
 Muhamad Juzaili Mohd Khamis
& Ors v. State Government of
[2015] 1 SHR Negeri Sembilan & Ors 11

A perayu-perayu dan mereka yang mengalami GID. Undang-

undang yang menghukum ekspresi jantina transeksual
mempersendakan dan merendahkan individu-individu yang
mengalami GID dalam masyarakat. Tambahan lagi, ‘nyawa’
dalam per. 5(1) bermaksud lebih daripada sekadar kewujudan
B haiwan; ia juga termasuk hak-hak seperti kehidupan dan kualiti
hidup. Kesan s. 66 adalah melarang perayu-perayu dan mereka
yang mengalami GID yang memakai pakaian wanita daripada
bergerak dalam tempat awam untuk tiba di tempat kerja
masing-masing.
C
(2) Negeri dan s. 66 Enakmen mengabaikan mereka yang
mengalami GID seperti perayu-perayu dan secara tidak adil
menguatkuasakan undang-undang terhadap mereka. Perayu-
perayu tidak sepatutnya diberi layanan yang sama seperti
D Muslim normal tetapi s. 66 memperuntukkan bagi layanan yang
sama dan tidak memperuntukkan sebarang pengecualian buat
mereka yang mengalami GID. Penyertaan individu-individu
yang mengalami GID di bawah s. 66 mendiskriminasikan
mereka dan dengan itu, bercanggah dengan per. 8(1)
E Perlembagaan.

(3) Seksyen 66 Enakmen bersifat diskriminasi atas sebab jantina

dan dengan itu, menyebabkan lelaki-lelaki Muslim seperti
perayu kepada berat sebelah yang negatif berbanding wanita-
wanita Muslim.
F
(4) Seksyen 66 Enakmen terang-terangan menjadikan ia satu
jenayah bagi mana-mana lelaki Muslim yang memakai pakaian
wanita atau berlagak seperti wanita di khalayak ramai. Seksyen
ini tidak boleh dikatakan sekadar menghalang kebebasan
G perayu-perayu untuk bergerak kerana impaknya lebih parah
daripada itu. Seksyen 66 menafikan perayu-perayu dan mereka
yang mengalami GID akan hak untuk bergerak bebas di
tempat-tempat awam. Kesannya, perayu-perayu tidak akan
dapat meninggalkan rumah mereka dan bergerak dengan bebas
H di Negeri Sembilan tanpa terdedah kepada ditangkap dan
dihukum. Dengan itu, s. 66 bercanggah dengan per. 9(2)
Perlembagaan.

(5) Pakaian atau artikel pakaian seseorang adalah bentuk ekspresi

I yang dijamin di bawah per. 10(1)(a) Perlembagaan. Badan
Perundangan Negeri Negeri Sembilan tidak mempunyai
kuasa untuk menyekat kebebasan bercakap dan bersuara.
12 Shariah Reports [2015] 1 SHR

Seksyen 66, undang-undang Negeri yang menjadikan ia satu A

jenayah bagi mana-mana lelaki Muslim yang memakai pakaian
wanita atau berlagak seperti wanita di khalayak ramai, memberi
kesan langsung kepada hak kebebasan bersuara perayu dalam
mana mereka dilarang daripada mengekspresikan diri mereka.
Oleh itu, larangan yang dikenakan terhadap perayu-perayu dan B
mereka yang mengalami GID adalah tidak munasabah.

(6) Tanpa keterangan perubatan, adalah tidak munasabah dan

menghina untuk mencadangkan bahawa perayu-perayu dan
individu-individu transgender yang lain adalah individu-individu C
yang tidak sempurna akal.

(7) Perkara 4(1) Perlembagaan mengisytiharkan bahawa

Perlembagaan adalah undang-undang mutlak Persekutuan dan
mana-mana undang-undang yang diluluskan bercanggah dengan
D
Perlembagaan adalah, takat mana percanggahan tersebut, tidak
sah. Membaca per. 74(3) dan 4(1) bersama-sama, adalah jelas
bahawa kesemua undang-undang Negeri, termasuk undang-
undang Islam yang diluluskan oleh Badan Perundangan Negeri,
mestilah selari dengan Bahagian II Persekutuan yang menjamin
E
kebebasan asasi semua warganegara Malaysia. Oleh itu, s. 66
adalah tidak sah kerana tidak berperlembagaan. Ia bercanggah
dengan per. 5(1), 8(1) dan (2), 9(2) dan 10(1)(a) Perlembagaan.
Case(s) referred to:
Che Omar Che Soh v. PP; Wan Jalil Wan Abdul Rahman & Anor v. PP F
[1988] 1 LNS 150 SC (refd)
Dewan Undangan Negeri Kelantan & Anor v. Nordin Salleh & Anor (1)
[1992] 2 CLJ 1125 SC (refd)
Dr Mohd Nasir Hashim v. Menteri Dalam Negeri Malaysia [2007] 1 CLJ
19 CA (refd)
G
Francis Coralie v. Union of India AIR [1981] SC 746 (refd)
Latifah Mat Zin v. Rosmawati Sharibun & Anor [2007] 5 CLJ 253 FC
(refd)
Lee Kwan Woh v. PP [2009] 5 CLJ 631 FC (refd)
Lembaga Tatatertib Perkhidmatan Awam Hospital Besar Pulau Pinang &
Anor v. Utra Badi K Perumal [2000] 3 CLJ 224 CA (refd) H
Muhammad Hilman Idham & Ors v. Kerajaan Malaysia & Ors [2011] 9
CLJ 50 CA (refd)
Sivarasa Rasiah v. Badan Peguam Malaysia & Anor [2010] 3 CLJ 507
FC (refd)
Tan Tek Seng @ Tan Chee Meng v. Suruhanjaya Perkhidmatan Pendidikan
I
& Anor [1996] 2 CLJ 771 CA (refd)
Tinker v. Des Moines Independent Community School District 393 US 503
(1969) (refd)
Venkateshwara Theatre v. State of Andra Pradesh and Ors [1993] 3 SCR
616 (refd)
 Muhamad Juzaili Mohd Khamis
& Ors v. State Government of
[2015] 1 SHR Negeri Sembilan & Ors 13

A Legislation referred to:

Federal Constitution, arts. 3(1), (4), 4(1), 5(1), 6, 7, 8(1), (2), (5)(a),
9(2), 10(1)(a), (2)(a), 11, 12, 13, 74(2), (3)
Penal Code, s. 84
Syariah Criminal (Negeri Sembilan) Enactment 1992 , ss. 11, 66
B Constitution of India [India], arts. 8(1), 14, 15, 19(1)(a), 21

For the appellants - Aston Paiva (Fahri Azzat with him); M/s Kanesalingam
& Co
For the respondents - Iskandar Ali Dewa; State Legal Adviser, Negeri Sembilan
(Muhammad Fairuz Iskandar, Asst. SLA with him)
C
Amicus Curiae - Suzana Atan; SFC Syahredzan Johan (Farez Jinnah
with him); Bar Council Nizam Bashir; Human Rights
Watch
Watching Briefs - PS Ranjan; Malaysian Mental Health Association and
Pertubuhan Wanita dan Kesihatan Honey Tan Lay Ean;
D Malaysian Aids Council, PT Foundation Bhd, Women’s
Aid Organisation, SIS Forum Bhd-Sisters in Islam, All
Women’s Action Society, Persatuan Kesedaran Komuniti
Selangor New Sin Yew; Malaysian Centre for
Constitutionalism and Human Rights
E [Appeal from High Court, Seremban; Judicial Review No: 13-1-11]

[Editor’s note: The State Government of Negeri Sembilan’s application for leave
to appeal was granted by the Federal Court as of 27 January 2015.]

Reported by Najib Tamby

F

JUDGMENT

Hishamudin Mohd Yunus JCA:

G Introduction

[1] This appeal is against the decision of the High Court of

Seremban of 11 October 2012 that had dismissed the appellants’
application for judicial review.
H [2] The application for judicial review is for a declaration that
s. 66 of the Syariah Criminal Enactment 1992 (Negeri Sembilan)
(“s. 66”) is void by reason of being inconsistent with the following
articles of the Federal Constitution, namely:

I (a) Article 5(1);

(b) Article 8(1);
(c) Article 8(2);
14 Shariah Reports [2015] 1 SHR

(d) Article 9(2); and A

(e) Article 10(1)(a).

[3] The High Court of Seremban had dismissed the judicial

review application; hence, the present appeal to this court.
B
Background Facts

[4] The three appellants are Muslim men. Medically, however,

they are not normal males. This is because they have a medical
condition called ‘Gender Identity Disorder’ (‘GID’). Because of
C
this medical condition, since a young age the appellants have been
expressing themselves as women and showing the mannerisms of
the feminine gender such as wearing women’s clothes and using
makeup. Indeed, they feel natural being such.

[5] That the appellants are sufferers of GID is confirmed by a D

psychiatrist from the Kuala Lumpur Hospital; as well as by a
psychologist. The evidence of these experts remains unrebutted.

[6] In 1992 the legislature of the State of Negeri Sembilan

enacted the Syariah Criminal Enactment 1992 (Negeri Sembilan). E
Section 66 of this Enactment makes it an offence for any Muslim
male person to do any of the following in a public place: to wear
a woman’s attire, or to pose as a woman. Those convicted can
be liable to a fine not exceeding RM1,000 or to imprisonment for
a term not exceeding six months or to both. This section makes F
no exception for sufferers of GID like the appellants. No
explanation has been given by the State for this unfortunate
omission.

[7] Hence, as a consequence, the appellants have been

G
repeatedly detained, arrested, and prosecuted by the religious
authority of Negeri Sembilan acting pursuant to s. 66 for cross-
dressing.

[8] The injustice and humiliation that they are subject to moved
them to apply to the court for this declaration. H

[9] Their application involves the interpretation of the Federal

Constitution; and we pause for a moment here to reiterate that
only the superior civil courts established under Part IX (The
Judiciary) of the Federal Constitution have the jurisdiction to I
determine disputes on the interpretation of the provisions of the
Federal Constitution. In Latifah Mat Zin v. Rosmawati Sharibun &
Anor [2007] 5 CLJ 253 (the panel comprising Abdul Hamid
 Muhamad Juzaili Mohd Khamis
& Ors v. State Government of
[2015] 1 SHR Negeri Sembilan & Ors 15

A Mohamad FCJ (as he then was), Arifin Zakaria FCJ (as he then
was) and Augustine Paul FCJ) the Federal Court reminds us (at
para. [76]):
Interpretation of the Federal Constitution is a matter for this
court, not the Syariah Court.
B
[10] Leave to apply for judicial review was granted on 4
November 2011 by Rosnaini Saub J, but the substantive judicial
review application was heard by another judge.

C Gender Identity Disorder: Medical Evidence

Diagnosis Of Appellants By Psychiatrist Dr Ang Jin Kiat

[11] The appellants had been medically examined by one Dr Ang

Jin Kiat, a psychiatrist from the Kuala Lumpur Hospital, a
D Government hospital.

[12] Dr Ang’s medical reports confirm that the appellants suffer

from a medical condition known as ‘Gender Identity Disorder’
(‘GID’). According to Dr Ang’s reports, the ‘desire to dress as a
E female and to be recognised as a female is in keeping with this
condition’ and there is no ‘scientifically proven pharmacological
treatment or psychological therapy’. In other words, cross-dressing
is intrinsic to the appellants’ nature; and that this abnormal
condition is incurable.
F
[13] Dr Ang Jin Kiat’s medical reports are unrebutted by the
respondents.

Consultant Psychiatrist’s Opinion, By Dr Deva Dass

G [14] Dr Deva Dass, a Consultant Psychiatrist, by an affidavit,
provides further opinion on GID. Dr Deva Dass states that GID
is also referred to as ‘transsexualism’, and those who suffer from
it are called ‘transsexuals’. He states that GID is not a preference
and is ineradicable, and that wearing clothing of the opposite sex
H occurs among sufferers of GID.

[15] Dr Deva Dass’s affidavit also exhibits excerpts from a

medical authority, namely, the Diagnostic and Statistical Manual of
Mental Disorders, 4th edn (DSM IV-TR), published by the
I American Psychiatric Association, Washington DC. These excerpts
explain the diagnostic features of GID. Gender Identity Disorders
are characterised by strong and persistent cross-gender
identification accompanied by persistent discomfort with one’s
assigned sex.
16 Shariah Reports [2015] 1 SHR

[16] The following excerpts are illustrative: A

In boys, the cross-gender identification is manifested by a marked

preoccupation with traditionally feminine activities. They may have
a preference for dressing in girls’ or women’s clothes or may
improvise such items from available materials when genuine
B
articles are unavailable ... There is a strong attraction for the
stereotypical games and pastimes of girls ... They avoid rough-
and-tumble play and competitive sports and have little interest in
cars and trucks or other nonaggressive but stereotypical boys’
toys ... More rarely, boys with Gender Identity Disorder may
state that they find their penis or testes disgusting, that they want C
to remove them, or that they have, or wish to have, a vagina.

Adults with Gender Identity Disorder are preoccupied with their

wish to live as a member of the other sex. This preoccupation
may be manifested as an intense desire to adopt the social role of
the other sex or to acquire the physical appearance of the other D
sex through hormonal or surgical manipulation. Adults with this
disorder are uncomfortable being regarded by others as, or
functioning, in society as, a member of their designated sex. In
private, these individuals may spend much time cross-dressed and
working on the appearance of being the other sex. Many attempt
E
to pass in public as the other sex. With cross-dressing and
hormonal treatment (and for males, electrolysis) many individuals
with this disorder may pass convincingly as the other sex.

[17] According to Dr Dass:

F
The sufferer from this anomaly feels he should have been the
other gender – “a female spirit trapped in a male body” – and is
quite unconvinced by scientific tests that show him to be
indisputably male.

Clinical Psychologist’s Report G

[18] Besides the two psychiatrists’ evidence/reports above, the

appellants have also tendered a report by one Ms Vizla
Kumaresan; a Clinical Psychologist.

[19] The report confirms that the appellants psychologically H

identify themselves as women.

[20] Likewise, Ms Kumaresan’s psychological reports, exhibited in

the respective affidavits of the appellants, have not been rebutted
by the respondents. I
 Muhamad Juzaili Mohd Khamis
& Ors v. State Government of
[2015] 1 SHR Negeri Sembilan & Ors 17

A Sociologist’s Evidence

[21] In further support of the appellants’ case, affidavits are also

filed by one Professor Teh Yik Koon, a renowned Malaysian
sociologist, explaining that a law like s. 66 has adverse effects on
B transsexuals and on Malaysian society. In the expert opinion of
the learned Professor:
Conclusions

41. Based on my experiences with the transsexual community in

C Malaysia, the research findings in my Book and from my
study of gender issues as a sociologist, it is my opinion that,
in Malaysia, a law like section 66 of the Syariah Criminal
(Negeri Sembilan) Enactment 1992 which criminalizes any
male person who in any public place merely wears a
woman’s attire or poses as a woman:
D
I. Stigmatizes transsexuals as deviants and in doing so:

(a) strips them of their value and worth as members of

our society.
E (b) affects their ability to freely engage in decent and
productive work, and this results in them pursuing sex
work as a source of income.

(c) affects the ability for transsexuals to move freely and

reside within the borders of Negeri Sembilan without
F fear of persecution.

(d) affects their well-being, self-confidence and self-

empowerment.

(e) impedes awareness-raising among members of society

G on the problems and troubles faced by transsexuals
and how society can play a part in helping them.

II. Adversely affects society by depriving it of an entire class

of individuals, that is transsexuals, who could contribute
to its well-being.
H
III. Infringes the privacy of transsexuals by preventing them
from making decisions and choices regarding their own
bodies.

IV. Infringes the ability for transsexuals to express their

I
identity through speech, deportment, dress and bodily
characteristics.
18 Shariah Reports [2015] 1 SHR

What The Appellants’ Evidence Established A

[22] The evidence furnished by the appellants, therefore, establish

that GID is an attribute of the appellants’ nature that they did
not choose and cannot change; and that much harm would be
caused to them should they be punished for merely exhibiting a B
manifestation of GID ie, cross-dressing.

The Legislative Competence Of The State Legislature Of

Negeri Sembilan On Matters Pertaining To The Religion Of
Islam
C
[23] Article 74(2) of the Federal Constitution read with List II
(State List), item 1, of the Ninth Schedule empowers State
Legislatures to legislate on matters pertaining to the religion of
Islam. Article 74(2) reads:
D
(2) Without prejudice to any power to make laws conferred on
it by any other Article, the Legislature of a State may make
laws with respect to any of the matters enumerated in the
State List (that is to say, the Second List set out in the
Ninth Schedule) or the Concurrent List.
E
[24] The present legislation comes under the sub-item:
... creation and punishment of offences by persons professing the
religion of Islam against precepts of that religion ...

[25] However, the exercise of this legislative power is not without F

constitutional limitations; for, art. 74(3) of the Federal Constitution
stipulates that the legislative powers of the States are exercisable
subject to any conditions or restrictions imposed with respect to
any particular matter by the Federal Constitution. Article 74(3)
provides: G

(3) The power to make laws conferred by this Article is

exercisable subject to any conditions or restrictions imposed
to any particular matter by this Constitution.

The Position Of Islam Under The Federal Constitution H

[26] Islam is declared by art. 3(1) of the Federal Constitution to

be the religion of the Federation.
Religion of the Federation
I
3. (1) Islam is the religion of the Federation; but other religions
may be practised in peace and harmony in any part of the
Federation.
 Muhamad Juzaili Mohd Khamis
& Ors v. State Government of
[2015] 1 SHR Negeri Sembilan & Ors 19

A [27] The meaning of ‘Islam’ in art. 3(1) is explained by the

Supreme Court in Che Omar Che Soh v. PP [1988] 2 MLJ 55;
(Wan Jalil Wan Abdul Rahman & Anor v. PP [1988] 1 LNS 150)
(the panel comprising Salleh Abas LP, Wan Sulaiman SCJ, Seah
SCJ, Hashim Yeop A. Sani SCJ (as he then was) and Syed Agil
B Barakbah SCJ), as follows (at p. 56):
There can be no doubt that Islam is not just a mere collection of
dogmas and rituals but it is a complete way of life covering all
fields of human activities, may they be private or public, legal,
political, economic, social, cultural, moral or judicial. This way of
C
ordering the life with all the precepts and moral standards is
based on divine guidance through his prophets and the last of
such guidance is the Quran and the last messenger is Mohammad
S.A.W. whose conduct and utterances are revered. (See S. Abdul
A’la Maududi, The Islamic Law and Constitution, 7th Ed., March
D 1980.)

The question here is this: Was this the meaning intended by the
framers of the Constitution? For this purpose, it is necessary to
trace the history of Islam in this country after the British
intervention in the affairs of the Malay States at the close of the
E last century.

[28] After having said the above, Salleh Abas LP, delivering the
unanimous decision of the Supreme Court, proceeded to trace the
history of Islam after the British intervention in the Malay States
F and came to the following conclusion (at p. 56):
Thus, it can be seen that during the British colonial period,
through their system of indirect rule and establishment of secular
institutions, Islamic law was rendered isolated in a narrow
confinement of the law of marriage, divorce, and inheritance only.
G (See M.B. Hooker, Islamic Law in South-east Asia, 1984.)

In our view, it is in this sense of dichotomy that the framers of

the Constitution understood the meaning of the word ‘Islam’ in
the context of Article 3. If it had been otherwise, there would
have been another provision in the Constitution which would have
H the effect that any law contrary to the injunction of Islam will be
void. Far from making such provision, Article 162, on the other
hand, purposely preserves the continuity of secular law prior to
the Constitution, unless such law is contrary to the latter.

[29] In short, the Supreme Court takes the position that it was
I
the intention of the framers of our Federal Constitution that the
word ‘Islam’ in art. 3(1) be given a restrictive meaning.
20 Shariah Reports [2015] 1 SHR

[30] But what is more important for the purpose of our judgment A
is the fact that art. 3(4) qualifies the status of Islam in following
terms:
...

(4) Nothing in this Article derogates from any other provision of B

this Constitution.

[31] What art. 3(4) means is that art. 3(1) is subject to, among
others, the fundamental liberties provisions as enshrined in Part II
of the Federal Constitution. C

Laws Inconsistent With The Federal Constitution Are Void

[32] Article 4(1) of the Federal Constitution declares that the
Federal Constitution is the supreme law of the Federation and any
law passed which is inconsistent with the Federal Constitution D
shall, to the extent of the inconsistency, be void. The article
reads:
Supreme law of the Federation
4. (1) This Constitution is the supreme law of the Federation and E
any law passed after Merdeka which is inconsistent with this
Constitution shall, to the extent of the inconsistency, be void.

[33] Part II (arts. 5 to 13) of the Federal Constitution guarantees

the fundamental liberties of all Malaysians.
F
[34] Reading art. 74(3) and art. 4(1) together, it is clear (and this
legal position is not disputed) that all State laws, including Islamic
laws passed by State legislatures, must be consistent with Part II
of the Federal Constitution (which guarantees the fundamental
liberties of all Malaysians). G

Section 66 Of The Syariah Criminal Enactment 1992 (Negeri

Sembilan)

[35] Section 66 is a State enacted Islamic law made pursuant to

List II (State List), Item 1, of the Ninth Schedule of the Federal H
Constitution. The State Enactment was passed by the State
Legislative Assembly of Negeri Sembilan on 3 August 1992 and
came into force on 1 June 1993. Section 66 reads:
Bahasa Malaysia version I

Mana-mana orang lelaki yang memakai pakaian perempuan atau

berlagak seperti perempuan di mana-mana tempat awam adalah
melakukan satu kesalahan dan hendaklah apabila disabitkan
 Muhamad Juzaili Mohd Khamis
& Ors v. State Government of
[2015] 1 SHR Negeri Sembilan & Ors 21

A dikenakan hukuman denda tidak melebihi satu ribu ringgit atau

penjara selama tempoh tidak melebihi enam bulan atau kedua-
duanya.

English Version

B 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 one thousand ringgit
or to imprisonment for a term not exceeding six months or to
both.
C Mufti’s Opinion

[36] The State in response to the appellants’ constitutional

challenge, have filed an affidavit by the learned Mufti of the State
of Negeri Sembilan. In his affidavit the learned Mufti opines that
D the prohibition of a male Muslim dressing or posing as a woman
is a precept of Islam (‘the Mufti’s opinion’).

[37] The Mufti’s opinion is tendered to explain that the offence

prescribed by s. 66 is in accordance with the precepts of Islam.
E
[38] We wish to make it clear here that whether or not s. 66 is
consistent with the precepts of Islam is not in issue in the present
case. Indeed, this is conceded by Mr Aston Paiva, learned counsel
for the appellants.

F [39] But Mr Paiva makes a pertinent point, and that is that, the
Mufti’s opinion, remarkably, fails to address the issue that is crucial
for the purpose of the present constitutional challenge: what is the
position in Islam as to the appropriate dress code for male
Muslims who are sufferers of GID, like the appellants?
G
Whether s. 66 Is In Breach Of art. 5(1) Of The Federal
Constitution

[40] Article 5(1) of the Federal Constitution guarantees that no

person shall be deprived of his life and personal liberty save in
H
accordance with law. It provides:
Liberty of the person

5.(1) No person shall be deprived of his life or personal liberty

save in accordance with law.
I
22 Shariah Reports [2015] 1 SHR

[41] The Federal Court (the panel comprising Richard Malanjum A

CJ (Sabah & Sarawak), Zulkefli Makinudin FCJ (as he then was)
and Gopal Sri Ram FCJ) in Sivarasa Rasiah v. Badan Peguam
Malaysia & Anor [2010] 3 CLJ 507 has held that:

(i) other freedoms may be found embedded in the “life” and B

“personal liberty” limbs of art. 5(1) (at para. [13] of the
judgment);

(ii) “in accordance with law” in art. 5(1) refers to a law that
is fair and just and not merely any enacted law however
C
arbitrary or unjust it may be (at para. [20] of the
judgment); and

(iii) when a law is challenged as violating a fundamental right

under art. 5(1), art. 8(1) will at once be engaged: (at
para. [19] of the judgment). D

Infringement Of The Right To Live With Dignity

[42] In Lembaga Tatatertib Perkhidmatan Awam Hospital Besar Pulau

Pinang & Anor v. Utra Badi K Perumal [2000] 3 CLJ 224 Gopal
E
Sri Ram JCA (as he then was) in delivering the decision of the
Court of Appeal (the other members of the panel comprising
Siti Norma Yaakob JCA (as she then was) and Mokhtar Sidin
JCA) explained that the word ‘life’ in art. 5(1) includes the right
to live with dignity. In his words, (at p. 239):
F
... it is the fundamental right of every person within the shores
of Malaysia to live with common human dignity.

[43] The learned judge quotes what Bhagwati J said in the Indian
Supreme Court case of Francis Coralie v. Union of India AIR G
[1981] SC 746 at p. 753:
But the question which arises is whether the right to life is limited
only to protection of limb or faculty or does it go further and
embrace something more. We think that the right to life includes
the right to live with human dignity and all that goes along with H
it namely, the bare necessaries of life such as adequate nutrition,
clothing and shelter over the head and facilities for reading, writing
and expressing oneself in diverse forms, freely moving about and
commingling with fellow human beings.

[44] Section 66 prohibits the appellants and all other male Muslim I

sufferers of GID from cross-dressing, and punishes them for any

breach of the prohibition. Learned counsel for the appellants
 Muhamad Juzaili Mohd Khamis
& Ors v. State Government of
[2015] 1 SHR Negeri Sembilan & Ors 23

A argues that the profound effect of s. 66 is that the appellants and

other GID sufferers are perpetually at risk of arrest and
prosecution simply because they express themselves in a way
which is part of their experience of being human. The very core
identity of the appellants is criminalised solely on account of their
B gender identity. Learned counsel submitted that s. 66 is
irreconcilable with the existence of the appellants and all other
GID sufferers. A more disturbing effect of s. 66 is that it builds
insecurity and vulnerability into the lives of the appellants and
other Muslim male persons with GID. The existence of a law that
C punishes the gender expression of transsexuals, degrades and
devalues persons with GID in our society. As such, s. 66 directly
affects the appellants’ right to live with dignity, guaranteed by
art. 5(1), by depriving them of their value and worth as members
of our society.
D
[45] We find merit in this argument. As long as s. 66 is in force
the appellants will continue to live in uncertainty, misery and
indignity. They now come before this court in the hope that they
may be able to live with dignity and be treated as equal citizens
E of this nation.

[46] We, therefore, hold that s. 66 is inconsistent with art. 5(1)

of the Federal Constitution in that the section deprives the
appellants of their right to live with dignity.
F [47] Therefore, s. 66 is unconstitutional and void.

Infringement Of Right To Livelihood/Work

[48] There is yet another reason as to why s. 66 is inconsistent

with art. 5(1). It has also been established by judicial authorities
G
that the word ‘life’ in art. 5(1) means more than mere animal
existence: it also includes such rights as livelihood and the quality
of life. In Tan Tek Seng @ Tan Chee Meng v. Suruhanjaya
Perkhidmatan Pendidikan & Anor [1996] 2 CLJ 771; [1996] 1 MLJ
261 Gopal Sri Ram JCA, in delivering the majority judgment of
H
the Court of Appeal (the other majority member being Ahmad
Fairuz J (as he then was); NH Chan JCA dissenting) said (at
p. 801 (CLJ); p. 288 (MLJ)):
Adopting the approach that commends itself to me, I have
I reached the conclusion that the expression ‘life’ appearing in
art. 5(1) does not refer to mere existence. It incorporates all those
facets that are an integral part of life itself and those matters
which go to form the quality of life. Of these are the right to
24 Shariah Reports [2015] 1 SHR

seek and be engaged in lawful and gainful employment and to A

receive those benefits that our society has to offer to its
members. It includes the right to live in a reasonably healthy and
pollution free environment.

[49] The above principle was approved by the Federal Court (the
B
panel comprising Richard Malanjum CJ (Sabah & Sarawak),
Hashim Yusof FCJ and Gopal Sri Ram FCJ) in Lee Kwan Woh v.
PP [2009] 5 CLJ 631 where Gopal Sri Ram FCJ in delivering the
judgment of the Court said (at p. 643 para. [14]):
[14] When art. 5(1) is read prismatically and in the light of C
art. 8(1), the concepts of ‘life’ and ‘persona liberty’ housed in the
former are found to contain in them other rights. Thus, ‘life’
means more than mere animal existence and includes such rights
as livelihood and the quality of life (see Tan Tek Seng’s case).

[50] The effect of s. 66 is that it prohibits the appellants and D

other sufferers of GID who cross-dress from moving in public

places to reach their respective places of work.

[51] The appellants submit that s. 66 has the inevitable effect of

rendering their right to livelihood/work illusory, for they will never E
be able to leave their homes, cross-dressed, to go to their
respective places of work without being exposed to being arrested
and punished under s. 66. Section 66 is therefore inconsistent
with art. 5(1).
F
Whether s. 66 Contravenes art. 8(1) Of The Federal
Constitution

[52] Article 8(1) of the Federal Constitution guarantees equality

before the law and equal protection of the law. This article
G
provides:
Equality

8. (1) All persons are equal before the law and entitled to the
equal protection of the law.
H
[53] In the present appeal, the object of s. 66 is to prohibit all
male Muslims from cross-dressing or appearing as a woman in a
public place. But the appellants are male Muslims suffering from
Gender Identity Disorder (‘GID’), where the desire to dress as a
female and to be recognised as a female is part of the said medical I
condition; and that there is no scientifically proven pharmacological
treatment or psychological therapy for such medical condition.
 Muhamad Juzaili Mohd Khamis
& Ors v. State Government of
[2015] 1 SHR Negeri Sembilan & Ors 25

A [54] In this appeal, we accept the appellants’ argument that they,

as male Muslims suffering from GID, are in a different situation as
compared to normal male Muslims. They and the normal male
Muslims are not under like circumstances and are thus unequals.
Being unequals, the appellants should not be treated similarly as
B the normal male Muslims. Yet s. 66 provides for equal treatment.
It does not provide for any exception for sufferers of GID like the
appellants. The State, although does not dispute the existence of
sufferers of GID among male Muslims such as the appellants, yet
does not explain for such a serious legislative omission. In other
C words, the State and the impugned section simply ignore GID
sufferers such as the appellants, and unfairly subject them to the
enforcement of the law. As a consequence, s. 66 places the GID
sufferers in an untenable and horrible situation. They could not
dress in public in the way that is natural to them. They will
D commit the crime of offending s. 66 the very moment they leave
their homes to attend to the basic needs of life, to earn a living,
or to socialise; and be liable to arrest, detention and prosecution.
This is degrading, oppressive and inhuman. Thus the inclusion of
persons suffering from GID in the s. 66 prohibition discriminates
E against them. Therefore, s. 66 is inconsistent with art. 8(1) of the
Federal Constitution as it is discriminatory and oppressive, and
denies the appellants the equal protection of the law.

[55] The Indian Supreme Court has in a number of cases laid

F down the proposition that art. 14 of the Indian Constitution (our
art. 8(1)) guarantees that unequal objects, transactions or persons
should not be treated equally). Just as a difference in treatment of
persons similarly situate leads to discrimination, so also
discrimination can arise if persons who are unequals, that is to
G say, are differently placed, are treated similarly. In Venkateshwara
Theatre v. State of Andra Pradesh and Ors [1993] 3 SCR 616 at
p. 637A the Supreme Court of India held:
Just as a difference in treatment of persons similarly situate leads
to discrimination, so also discrimination can arise if persons who
H are unequals, i.e. differently placed, are treated similarly. In such
a case failure on the part of the legislature to classify the persons
who are dissimilar in separate categories and applying the same
law, irrespective of the differences, brings about the same
consequences as in a case where the law makes a distinction
I between persons who are similarly placed. A law providing for
equal treatment of unequal objects, transactions or persons would
be condemned as discriminatory if there is absence of rational
relation to the object intended to be achieved by the law.
26 Shariah Reports [2015] 1 SHR

[56] Section 66 is therefore unconstitutional as it offends A

art. 8(1) of the Federal Constitution, and is therefore void.

Whether s. 66 Contravenes art. 8(2) Of The Federal

Constitution
B
[57] Article 8(2) of the Federal Constitution states that in any law
there shall be no discrimination against citizens on the ground of
gender. The article reads:
(2) Except as expressly authorized by this Constitution, there
shall be no discrimination against citizens on ground only of C
religion, race, descent, place of birth or gender in any law
or in the appointment to any office or employment under a
public authority or in the administration of any law relating
to the acquisition, holding or disposition of property or the
establishment or carrying on of any trade, business,
D
profession, vocation or employment.

[58] It is submitted by the learned counsel for the appellants that

s. 66 is inconsistent with art. 8(2). The appellants are male
Muslims. Section 66 only prohibits male Muslims from cross-
dressing or from posing as a woman in public. But this section E
does not prohibit female Muslims from cross-dressing as a man or
from posing as a man in public. It is argued that s. 66 thus
subjects male Muslim persons like the appellants to an
unfavourable bias vis-à-vis female Muslim persons. Therefore, s. 66
is discriminatory on the ground of gender, and is inconsistent with F
art. 8(2).

[59] With respect, we find that there is merit in this argument.

We therefore rule that s. 66 also violates art. 8(2) of the Federal
Constitution – and is void. G

[60] With respect, we are unable to accept the argument of

Encik Iskandar Dewa, the learned State Legal Adviser of Negeri
Sembilan, that s. 66 is ‘personal law’ for the purpose of cl. (5)(a)
of art. 8. This cl. (5)(a) of art. 8 permits the making of personal
H
laws that discriminate on account of gender or other factors that
are enumerated in cl. (2) of art. 8. It states:
(5) This Article does not invalidate or prohibit:

(a) any provision regulating personal law; ... I

 Muhamad Juzaili Mohd Khamis
& Ors v. State Government of
[2015] 1 SHR Negeri Sembilan & Ors 27

A [61] It must be appreciated that s. 66 is not enacted pursuant

to the particular sub-item of Item 1 of List II of the Ninth
Schedule that refers to personal law:
... Islamic law and personal and family law of persons professing
the religion of Islam, including the Islamic law relating to
B
succession, adoption, legitimacy, guardianship, gifts, partitions and
non-charitable trusts; ...

[62] Section 66 is in fact enacted pursuant to that particular

sub-item of Item 1 of List II that states:
C
... creation and punishment of offences by persons professing the
religion of Islam against precepts of that religion ...

[63] Thus s. 66 is not personal law.

D Whether s. 66 Is Inconsistent With art. 9(2) Of The Federal

Constitution

[64] Article 9(2) of the Federal Constitution guarantees freedom

of movement within the Federation. It provides:
E Prohibition of banishment or excluded from the Federation

9. (1) ...

(2) Subject to Clause (3) and to any law relating to the

security of the Federation or any part thereof, public order,
F public health, or the punishment of offenders, every citizen
has the right to move freely throughout the Federation and
to reside in any part thereof.

[65] Section 66 is explicit in criminalising any Muslim man who

G
in any public place wears a woman’s attire or poses as a woman.

[66] Thus, s. 66 cannot be said to merely restrict the appellants’

freedom of movement. The impact of s. 66 is more severe than
that: it has the effect of denying the appellants and sufferers of
GID of the right to move freely in public places. In effect, the
H
appellants and other male Muslim sufferers of GID will never be
able to leave their homes and move freely in the State of Negeri
Sembilan without being exposed to being arrested and punished
under s. 66. In other words, s. 66 denies the appellants and
other male Muslim sufferers of GID of their right to freedom of
I
movement.

[67] As such, we accept the argument that s. 66 is inconsistent

with art. 9(2) of the Federal Constitution.
28 Shariah Reports [2015] 1 SHR

[68] However, even if we were to regard s. 66 as a restriction A

and not as a denial of the right to move freely within the country,
still, such restriction, according to judicial authorities (see Sivarasa
Rasiah; Dr Mohd Nasir Hashim v. Menteri Dalam Negeri Malaysia
[2007] 1 CLJ 19; and Muhammad Hilman Idham & Ors v.
Kerajaan Malaysia & Ors [2011] 9 CLJ 50), must be subject to B
the test of reasonableness. However, we hold that s. 66 is an
unreasonable restriction of the appellants’ right to freedom of
movement – and hence unconstitutional as being inconsistent with
art. 9(2) of the Federal Constitution.
C
Whether s. 66 Is In Breach Of art. 10(2) Of The Federal
Constitution

[69] Article 10(1)(a) of the Federal Constitution guarantees

freedom of expression. It provides:
D
Freedom of speech, assembly and association

10. (1) Subject to Clauses (2), (3) and (4):

(a) every citizen has the right to freedom of speech and

expression; E

...

(2) Parliament may by law impose:

(a) on the rights conferred by para. (a) of cl. (1), such F

restrictions as it deems necessary or expedient in the
interest of the security of the Federation or any part
thereof, friendly relations with other countries, public
order or morality and restrictions designed to protect the
privileges of Parliament or of any Legislative Assembly
G
or to provide against contempt of court, defamation, or
incitement to any offence.

[70] A person’s dress, attire or articles of clothing are a form of

expression, which in our view, is guaranteed under art. 10(1)(a).
H
[71] Professor Shad Saleem Faruqi in his book Document of
Destiny, the Constitution of the Federation of Malaysia, expresses the
view that even “symbolic speech” like the manner of one’s dressing
and grooming can be treated as part of one’s freedom of
expression.
I
 Muhamad Juzaili Mohd Khamis
& Ors v. State Government of
[2015] 1 SHR Negeri Sembilan & Ors 29

A [72] We find support for the above view from the landmark
American Supreme Court case of Tinker v. Des Moines Independent
Community School District 393 US 503 (1969) [IAP(2), Tab 73].
In Tinker, it was held that a school regulation which prohibited
students from wearing black armbands to silently protest against
B the United States Government’s policy in Vietnam was violative of
the First Amendment to the United States Constitution, which
guaranteed free speech: (pp. 513-514).

[73] Section 66 directly affects the appellants’ right to freedom of

C expression, in that they are prohibited from wearing the attire and
articles of clothing of their choice.

[74] Article 10(2)(a) states that only Parliament may restrict

freedom of expression in limited situations; and so long as such
restrictions are reasonable.
D
[75] The State Legislative Assemblies in Malaysia (and this
includes the State legislature of Negeri Sembilan) have no power
to restrict freedom of speech and expression. Only Parliament has
such power. This is confirmed by the Supreme Court in Dewan
E Undangan Negeri Kelantan & Anor v. Nordin Salleh & Anor (1)
[1992] 2 CLJ 1125; [1992] 1 CLJ (Rep) 72 at p. 82:
Next it must be observed that Article 10(2) of the Federal
Constitution provides that only Parliament may by law impose
those restrictions referred to in Article 10(2), (3) and (4) of the
F
Federal Constitution. Therefore even if any such restriction
purported to have been imposed by the Constitution of the State
of Kelantan was valid, and it is not, it is clear that the restriction
could not be imposed by a law passed by any State Legislature.
That would be another ground why Article XXXIA of the
G Constitution of Kelantan should be invalidated.

[76] Section 66 is a State law that criminalises any male Muslim

who wears a woman’s attire or who poses as a woman in a public
place. Hence, s. 66 is unconstitutional since it is a law purporting
H
to restrict freedom of speech and expression but it is a law not
made by Parliament.

[77] Moreover, any restriction on freedom of expression must be

reasonable. In Sivarasa Rasiah the Federal Court held:
I [5] The other principle of constitutional interpretation that is
relevant to the present appeal is this. Provisos or restrictions that
limit or derogate from a guaranteed right must be read
30 Shariah Reports [2015] 1 SHR

restrictively. Take art. 10(2)(c). It says that ‘Parliament may by A

law impose – (c) on the right conferred by para (c) of cl. (1),
such restrictions as it deems necessary or expedient in the interest
of the security of the Federation or any part thereof, public order
or morality.’ Now although the article says ‘restrictions’, the word
‘reasonable’ should be read into the provision to qualify the width
B
of the proviso. The reasons for reading the derogation as ‘such
reasonable restrictions’ appear in the judgment of the Court of
Appeal in Dr Mohd Nasir Hashim v. Menteri Dalam Negeri Malaysia
[2007] 1 CLJ 19 which reasons are now adopted as part of this
judgment.
C
(See also Dr. Mohd Nasir Hashim and Muhammad Hilman).

[78] Clearly, the restriction imposed on the appellants and other

GID sufferers by s. 66 is unreasonable. Thus, also from the aspect
of reasonableness, s. 66 is unconstitutional.
D
National Legal Services Authority v. Union Of India And
Others

[79] We accept the submission of learned counsel for the

appellants that the issues in the Indian Supreme Court case of E
National Legal Services Authority v. Union of India and Others, Writ
Petition (Civil) No. 400 of 2012 (decided on 15 April 2014) are
directly on point with most of the issues herein. On 15 April
2014, the Indian Supreme Court in National Legal Services Authority
v. Union of India and Others, Writ Petition (Civil) No. 400 of 2012 F
decided on a writ petition filed by the National Legal Services
Authority on behalf of the transgender community of India
(transgender community), who sought a legal declaration of their
gender identity than the one assigned to them, male or female, at
the time of birth; and their prayer is that non-recognition of their G
gender identity violates art. 14 (our art. 8(1)) and art. 21 (our
art. 5(1)) of the Constitution of India (at para. [2] of the
judgment).

[80] In this case cited the Indian Supreme Court begins by

H
defining transgenders as ‘persons whose gender identity, gender
expression or behaviour does not conform to their biological sex’
(at para. [11] of the judgment). The Supreme Court considers
the nature of ‘gender identity’ as being ‘a person’s intrinsic sense
of being male, female or transgender or transsexual person’ (at
I
para. [19] of the judgment). The court explores a myriad of
international human rights conventions and norms (at paras. [21]-
 Muhamad Juzaili Mohd Khamis
& Ors v. State Government of
[2015] 1 SHR Negeri Sembilan & Ors 31

A [24] of the judgment), case laws on transsexuals, and legislation

in other countries on transgenders (at paras. [35]-[42] of the
judgment) and ruled as follows:
... any international convention not inconsistent with the
fundamental rights and in harmony with its spirit must be read
B
into those provisions ... of the Constitution to enlarge the meaning
and content thereof and to promote the object of constitutional
guarantee (at para. [53] of the judgment); ...

[81] The court considers the stigmatisation and discrimination

C faced by transgenders in society (at para. [55] of the judgment)
and ruled as follows:

(a) that the word ‘sex’ in art. 15 (our art. 8(2)) of the Indian
Constitution includes ‘gender identity’ (at para. [59] of the
D
judgment);

(b) that the guarantee under art. 19(1)(a) (our art. 10(1)(a)) of
the Indian Constitution includes the right to expression of
one’s gender through dress, and that ‘[n]o restriction can be
placed on one’s personal appearance or choice of dressing ...’
E
(at paras. [62]-[66] of the judgment); and

(c) that art. 21 (our art. 5(1)) protects the dignity of human life
and one’s right to privacy, and that ‘[r]ecognition of one’s
gender identity lies at the heart of the fundamental right to
F dignity’ (at paras. [67]-[68] of the judgment).

[82] The Indian Supreme Court, in granting the appropriate

directions (at para. [129] of the judgment), held:
discrimination on the basis of ... gender identity includes any
G discrimination, exclusion, restriction or preference, which has the
effect of nullifying or transposing equality by the law or the equal
protection of laws guaranteed under our Constitution. (at para. [77]
of the judgment).

[83] In this appeal, in arriving at our decision we are much

H
guided by the above learned and inspiring judgment of the Indian
Supreme Court. In particular, we adopt the following passages in
the judgment:
Article 19(1)(A) And Transgenders
I
[62] Article 19(1) of the Constitution guarantees certain
fundamental rights, subject to the power of the State to impose
restrictions from exercise of those rights. The rights conferred by
32 Shariah Reports [2015] 1 SHR

Article 19 are not available to any person who is not a citizen of A

India. Article 19(1) guarantees those great basic rights which are
recognized and guaranteed as the natural rights inherent in the
status of the citizen of a free country. Article 19(1) (a) of the
Constitution states that all citizens shall have the right to freedom
of speech and expression, which includes one’s right to expression
B
of his self-identified gender. Self-identified gender can be expressed
through dress, words, action or behavior or any other form.
No restriction can be placed on one’s personal appearance
or choice of dressing, subject to the restrictions contained in
Article 19(2) of the Constitution.
C
[63] We may, in this connection, refer to few judgments of the
US Supreme Courts on the rights of TG’s freedom of
expression. The Supreme Court of the State of Illinois in the City
of Chicago v. Wilson et al., 75 III.2d 525 (1978) struck down the
municipal law prohibiting cross-dressing, and held as follows:
D
... the notion that the State can regulate one’s personal
appearance, unconfined by any constitutional strictures
whatsoever, is fundamentally inconsistent with “values of
privacy, self-identify, autonomy and personal integrity that ...
the Constitution was designed to protect.
E
[64] In Doe v. Yunits et al., 2000 WL3316 (Mass. Super.), the
Superior Court of Massachusetts, upheld the right of a person to
wear school dress that matches her gender identity as part of
protected speech and expression and observed as follows:
... by dressing in clothing and accessories traditionally F
associated with the female gender, she is expressing her
identification with the gender. In additional, plaintiff’s ability to
express herself and her gender identity through dress is
important for her health and well-being. Therefore, plaintiff’s
expression is not merely a personal preference but a necessary
G
symbol of her identity.

[65] Principles referred to above clearly indicate that the freedom

of expression guaranteed under art. 19(1)(a) includes the freedom
to express one’s chosen gender identity through varied ways and
means by way of expression, speech, mannerism, clothing etc. H
[66] Gender identity, therefore, lies at the core of one’s personal
identity, gender expression and presentation and, therefore, it will
have to be protected under art. 19(1)(a) of the Constitution of
India. A transgender’s personality could be expressed by the
transgender’s behavior and presentation. State cannot prohibit, I
restrict or interfere with a transgender’s expression of such
personality, which reflects that inherent personality. Often the State
and its authorities either due to ignorance or otherwise fail to
 Muhamad Juzaili Mohd Khamis
& Ors v. State Government of
[2015] 1 SHR Negeri Sembilan & Ors 33

A digest the innate character and identity of such persons. We,

therefore, hold that values of privacy, self-identity, autonomy and
personal integrity are fundamental rights guaranteed to members
of the transgender community under art. 19(1)(a) of the
Constitution of India and the State is bound to protect and
recognize those rights.
B
Article 21 And The Transgenders

[67] Article 21 of the Constitution of India reads as follows:

21. Protection of life and personal liberty – No person shall

C be deprived of his life or personal liberty except
according to procedure established by law.”

Article 21 is the heart and soul of the Indian Constitution, which

speaks of the rights to life and personal liberty. Right to life is
one of the basic fundamental rights and not even the State has
D
the authority to violate or take away that right. Article 21 takes
all those aspects of life which go to make a person’s life
meaningful. Article 21 protects the dignity of human life, one’s
personal autonomy, one’s right to privacy, etc. Right to dignity
has been recognized to be an essential part of the right to life and
E accrues to all persons on account of being humans. In Francis
Coralie Mullin v. Administrator, Union Territory of Delhi (1981) 1
SCC 608 (paras 7 and 8), this Court held that the right to dignity
forms an essential part of our constitutional culture which seeks
to ensure the full development and evolution of persons and
includes “expressing oneself in diverse forms, freely moving about
F
and mixing and commingling with fellow human beings”.

[68] Recognition of one’s gender identity lies at the heart of the

fundamental right to dignity. Gender, as already indicated,
constitutes the core of one’s sense of being as well as an integral
G part of a person’s identity. Legal recognition of gender identity is,
therefore, part of right to dignity and freedom guaranteed under
our Constitution.

The Learned High Court Judge’s Grounds Of Judgment

H [84] At para. 19 of her grounds of judgment, the learned judge

erroneously speculates as follows:
Sek. 66 ... adalah bagi mengelakkan kesan negative kepada
masyarakat iaitu mengelakkan perbuatan homoseksual dan lesbian
yang menjadi punca merebaknya HIV.
I
34 Shariah Reports [2015] 1 SHR

[85] At para. 22 of her grounds of judgment the learned judge A

makes the further disturbing remarks. She said s. 66 was enacted:
... digubal untuk digunapakai kepada pemohon-pemohon bagi
mencegah kemudaratan yang lebih besar. Apabila transeksual
berpakaian wanita tetapi secara biology adalah lelaki dan
B
mempunyai kelamin lelaki dan oleh kerana mempunyai nafsu,
mereka akan terjebak dalam hubungan homoseksual, satu punca
HIV.

[86] In our judgment, the above remarks and findings of the

learned High Court Judge, with respect, are unsupported by, and C
contrary to, evidence and is tainted by unscientific personal
feelings or personal prejudice.

[87] Whilst on our disturbing observation about prejudice,

perhaps it is relevant to highlight here the Malaysian Government’s
D
2010 UN General Assembly (UNGASS) Country Progress Report
on HIV/AIDs states:
(R/P 2(4), p. 667) “Transgendered person or transsexuals are
labelled as sexual deviants and often shunned by society in
Malaysia. As a result of such stigmatization and discrimination, the E
majority of those in this community are unable to obtain
employment and thus end up doing sex work”.

[88] In the present case, we note with much disquiet that the
learned judge seemed particularly transfixed with ‘hubungan
F
homoseksual’ in her reasoning. We wish to stress here that such
reasoning is without basis and is grossly unfair to the appellants
and other male Muslim sufferers of GID. The present case has
absolutely nothing to do with homosexuality. As what we have
said earlier, this case is about male Muslim persons with a medical
G
condition called Gender Identity Disorder (‘GID’). But,
unfortunately, there was a complete failure on the part of the
learned judge to appreciate the unrebutted medical evidence before
her.

[89] In para. 24 of the grounds of judgment the learned High H

Court Judge concludes that:
Falsafah peruntukan Sek. 66 adalah untuk mencegah kemudaratan
yang lebih besar kepada masyarakat, maka ianya mengatasi
kepentingan peribadi atau kebebasan peribadi tertuduh.
I
 Muhamad Juzaili Mohd Khamis
& Ors v. State Government of
[2015] 1 SHR Negeri Sembilan & Ors 35

A [90] With great respect, we accept the submission of learned

counsel of the appellants that such a conclusion renders
constitutional adjudication and the role of the Judiciary as
protectors of the Constitution illusory. As well put by Mr Aston
Paiva:
B
The Constitution exists precisely so that the minority cannot be
subject to the tyranny of the majority.

Whether Male Muslim GID Sufferers Are Persons Of

Unsound Mind
C
[91] With respect, we are unable to accept the submission of
Encik Iskandar Ali, the learned State Legal Advisor of Negeri
Sembilan, that s. 66 is not prejudicial to the appellants as they are
persons of unsound mind and hence entitled to the defence
D accorded by s. 11 of the Syariah Criminal Enactment 1992
(Negeri Sembilan) the wordings of which are similar to s. 84 of
the Penal Code. Section 11 states:
Perbuatan seseorang yang tidak sempurna akal
E 11. Tidaklah menjadi kesalahan apa-apa jua yang dilakukan oleh
seseorang yang pada masa melakukannya, oleh sebab akalnya tidak
sempurna, tidak berupaya mengetahui keadaan perbuatan itu atau
bahawa apa yang dilakukannya adalah salah atau berlawanan
dengan undang-undang.
F
[92] Section 84 of the Penal Code states:
Act of a person of unsound mind

84. Nothing is an offence which is done by a person who, at the

time of doing it, by reason of unsoundness of mind, is incapable
G
of knowing the nature of the act, or that he is doing what is
either wrong or contrary to law.

[93] Our short answer to this is that in the absence of medical

evidence it is absurd and insulting to suggest that the appellants
H and other transgenders are persons of unsound mind.

Conclusion

[94] We hold that s. 66 is invalid as being unconstitutional. It is

inconsistent with art. 5(1), arts. 8(1) and (2), art. 9(2), and
I
art. 10(1)(a) of the Federal Constitution.
36 Shariah Reports [2015] 1 SHR

[95] The appeal is allowed. A

[96] We, therefore, grant the declaration sought in prayer B(1) of

the judicial review application but in the following terms: that
s. 66 of the Syariah Criminal Enactment 1992 (Enactment 4 of
1992) of Negeri Sembilan is inconsistent with art. 5(1), arts. 8(1) B
and (2), art. 9(2), and art. 10(1)(a); and is therefore void.