Case Summary

Khamis and Ors v State Government of Negeri Sembilan and Ors

1. Reference Details

Jurisdiction: Court of Appeal, Malaysia

Date of Decision: 7 November 2014

Case Status: Brief judgment. A full judgment will be issued in due course.

Link to full case: http://www.kehakiman.gov.my/directory/judgment/file/N-01-498-11-

2012.pdf

Facts of the Case

The Appellants, three transgender women applied for judicial review of section 66 of the Syariah
Criminal Enactment 1992 (Negeri Sembilan) on the grounds that it was unconstitutional. Section
66 makes it an offence for a Muslim man to wear a woman’s attire or pose as a woman in public.
Those convicted face a RM1000 fine, a term of imprisonment not exceeding six months, or both.
The Appellants were described in the case as Muslim men who were not “normal males” because
they have “Gender Identity Disorder” (GID). From a young age each of the Appellants had been
expressing themselves as a woman and “showing mannerisms of the feminine gender such as
wearing women’s clothes and using makeups”. Each of the Appellants had been repeatedly
arrested, detained and prosecuted pursuant to section 66.

The Appellants applied to the High Court for judicial review of section 66 arguing that it should
be declared void as it violated a number of their constitutional rights including their right to
equality. The High Court dismissed the application and the Appellants were granted leave to
appeal in this case.

2. Law

National laws:

 Articles 5(1), 8(1), 8(2), 9(2), 10(1)(a) and 10(2) of the Federal Constitution of Malaysia.
 Section 66 of the Syariah Criminal Enactment 1992 (Negeri Sembilan).

3. Legal Arguments

The brief judgment does not set out the legal arguments at length. The below is extrapolated from
comments made throughout the judgment about the arguments presented by the Appellants and
the Respondent.

Appellants' Arguments

The Appellants argued that section 66 violated article 5(1) of the Constitution, which guarantees
that no person shall be deprived of his or her life and personal liberty except in accordance with
law. The effect of section 66 was that they and other sufferers of GID were at constant risk of
arrest for expressing themselves in a way which is part of their experience of being human. The
section criminalised the core identity of the Appellants on the basis of their gender identity and
built vulnerability and insecurity into the lives of all “Muslim males with GID”. It degraded and
devalued persons with GID and was therefore inconsistent with the Appellants’ right to live with
dignity guaranteed by article 5(1).

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Further, section 66 rendered the appellants right to a livelihood/work, which is encompassed by
article 5(1), illusory because they were never able to leave their homes cross-dressed to travel to
work without the risk of arrest and prosecution under section 66. In addition, section 66 is
inconsistent with article 9(2), which guarantees freedom of movement.

Section 66 also violated article 8(1) of the Constitution, which protects the right to equality before
the law and equal protection of the law. The Appellants were not in the same circumstances as
Muslim men because they suffered from GID; they should not therefore be treated on an equal
basis with Muslim men. Section 66 was therefore discriminatory because it treated persons who
were not alike in the same way. In addition, section 66 also violated article 8(2) of the
Constitution, which provides that there shall be no discrimination in any law on the basis of
gender, because it prevented male Muslims from cross dressing but not female Muslims.

Respondent's Arguments

Amongst other things, the State argued that section 66 did not cause any prejudice to the
Appellants because persons with GID were of unsound mind. The Appellants and others with GID
therefore had a defence to any charges under section 66. The State also argued that section 66 is
a “personal law” pursuant to article 8(2) of the Constitution, which allows for personal laws which
discriminate on the basis of, amongst other things, gender.

In addition, the State filed an affidavit sworn by the Mufti of the State of Negeri Sembilan, attesting
that the offence created by section 66 is in accordance with the precepts of Islam.

4. Decision

The Court found that section 66 was inconsistent with a number of fundamental liberties
contained within Part II the Constitution and was therefore unconstitutional. It was not disputed
that all Islamic laws must also be consistent with Part II of the Constitution. Article 4(1) of the
Constitution provides that any law that is inconsistent with the Constitution shall be void to the
extent of that inconsistency and accordingly section 66 was void.

In reaching its decision the Court emphasised that the question for it was not whether section 66
is consistent with the precepts of Islam. Nor did the Court accept the arguments of the State that
section 66 was not detrimental to the Appellants because persons suffering from GID were
persons of unsound mind and so had a defence open to them. In finding so, the Court stated that
“it is absurd and insulting to suggest that the [A]ppellants and other transgenders are persons of
unsound mind”.

This brief judgment presents the Court’s reasoning for its decision as follows:

Article 5(1)

The Court found merit in the Appellants’ arguments, stating that “[a]s long as section 66 is in force
the Appellants will continue to live in uncertainty, misery and indignity.” Citing previous case law,
the Court noted that article 5(1) encompasses the right to live with dignity. Section 66 was
therefore inconsistent with article 5(1) because it deprived the Appellants of their right to live
with dignity. In addition, previous judicial authority established that article 5(1) includes rights
such as livelihood and quality of life. Section 66 prevented the Appellants from moving in public
to reach their places of work and so was also inconsistent with article 5(1) in this way.

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Article 8(1)

Discrimination can occur not only if there is a difference in treatment of people who are similarly
situated but also if there is similar treatment of people who are differently situated. The
Appellants, as “male Muslims suffering from GID” were in a different situation from “normal male
Muslims”. As they were “unequals” they should not be treated similarly. Section 66 provided for
equal treatment between the two groups; it did not provide for any exception for sufferers of GID
like the Appellants. Section 66 placed GID sufferers in an untenable and horrible situation which
was degrading, oppressive and inhuman. Accordingly, the inclusion of persons suffering from GID
in the section 66 prohibition discriminated against persons like the Appellants and denied them
the equal protection of the law.

Article 8(2)

Section 66 prohibited male Muslims from cross-dressing or posing as women in public but did
not prohibit female Muslims from cross-dressing as a man or from posing as a man. Therefore,
section 66 was discriminatory on the ground of gender and violated article 8(2).

Further, section 66 was not personal law for the purpose of article 8(5), which allows
discrimination on the basis of gender in personal law. Section 66 was not enacted pursuant to the
sub-item of Item 1 of List II of the Ninth Schedule referring to personal law;, rather, it was enacted
pursuant to the sub-item of Item 1 of List II that refers to “creation and punishment of offences
by persons professing the religion of Islam against precepts of that religion”.

Article 9(2)

Section 66 went further than just restricting the Appellants’ freedom of movement, it denied them
freedom of movement. Suffers of GID would never be able to leave their homes and move freely
because they would always be subject to arrest and prosecution under section 66. Even if section
66 only amounted to a restriction on freedom of movement, it would be subject to the test of
reasonableness laid down by the judicial authorities, which it would not pass.

Article 10(1)(a)

Article 10(1)(a) of the Constitution protects freedom of expression. Citing Tinker v Des Moines
Independent Community School District 393 U.S 503 (1969) and National Legal Services Authority
v Union of India and Ors Writ Petition (Civil) No. 400 of 2012, the Court held that dress and
clothing are forms of expression. Therefore section 66 impacted the Appellants’ right to freedom
of expression. Only Parliament has the ability to restrict freedom of expression (under article
10(2) of the Constitution) in limited situations and when such restrictions are reasonable. There
is no ability for a state legislature, such as the Legislative Assembly of the State of Negeri
Sembilan, to restrict freedom of expression. Section 66 was therefore unconstitutional. Further,
any restriction by federal Parliament would have to be reasonable and the restriction imposed by
section 66 is unreasonable.

National Legal Services Authority v Union of India and Ors

In reaching its decision, the Court adopted the decision of the Indian Supreme Court in National
Legal Services Authority v Union of India and Ors Writ Petition (Civil) No. 400 of 2012, the issues
in which it described as “directly on point with most of the issues” in the present case. The Indian
Supreme Court held in that case that non-recognition of the gender identity of transgender
persons violated their rights under the Constitution of India (including the equivalent of articles
5(1), 8(1) and 8(2) of the Constitution of Malaysia).

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In referring to the case, the Court noted amongst other things that:

 article 15 of the Indian Constitution is the equivalent to Article 8(2) of the Malaysian
Constitution. The Indian Supreme Court held that the word “sex” in Article 15 included
“gender identity”;
 article 19(1)(a) of the Indian Constitution is equivalent to Article 10(1)(a) of the
Malaysian Constitution. The Indian Supreme Court held that Article 19(1)(a) means that
no restriction can be placed on one’s personal appearance or choice of dressing; and
 article 21 of the Indian Constitution is equivalent to Article 5(1) of the Malaysian
Constitution. The Indian Supreme Court held that recognition of one’s gender identity lies
at the heart of the fundamental right to dignity.

For the above mentioned reasons the Court held that section 66 was unconstitutional and void. It
is noteworthy that, in reaching its decision, the Court was highly critical of the High Court judge
who had dismissed the judicial review. The Court described the findings of the High Court Judge
as “tainted by unscientific personal feelings or personal prejudice” and stated that the Judge had
failed to understand the unrebutted medical evidence and was “transfixed” with homosexual
relationships when the current case had nothing to do with homosexuality.