Baru: Court of Appeal's decision shows that Malaysia is a secular, not Islamic state

KUCHING, Jan 23, 2015: Sarawak PKR chairman Baru Bian stressed that a judgment of the Court of Appeal  (CoA) on the Negri Sembilan Syariah case shows that Malaysia is a secular and not Islamic state as what  some Malayan politicians and various Islamic authorities have been claiming all this while.

"After a disappointing decision from the Federal Court in the appeal by the Catholic Church on the ‘Allah’ matter, the judgment from the CoA comprising Justices  Mohd Hishamudin Yunus,  Aziah Ali and Lim Yee Lan on the Negri Sembilan Syariah case gives us reason to be hopeful," he said today.

Baru Bian

He added:" The judgment handed down in this case is one written by a judge who is conscious of his oath of office to preserve, protect and defend the Constitution.

"Foremost, I am glad that the honourable judge in his judgment affirmed that the Federal Constitution is the Supreme law of the Federation as declared in Article 4(1) and that the guarantee of fundamental liberties of all Malaysians takes precedence over all State laws, including Islamic laws passed by State legislatures.

"Equally significant is the affirmation by Justice Mohd Hishamudin of the 1988 decision of the Supreme Court in Che Omar bin Che Soh, which clearly stated that Malaysia is a secular country in that ‘it was the intention of the Federal Constitution that the word ‘Islam’ in Art 3(1) be given a restrictive meaning’.

"What this means is that Malaysia is not an Islamic country and the Syariah is not the supreme law of the land, no matter how much the present and past prime ministers, members of the BN government and the various Islamic authorities wish it to be and how often they try to hoodwink Malaysians that it is," Baru, who is also Ba'Kelalan state lawmaker, said.

He hoped that that the federal government and the various Islamic authorities will take the time to read the " very sound judgment and give due respect to the pronouncement of the court on this matter."

" They would do a great service to all Malaysians if they would try to understand the provisions of the Federal Constitution so that they do not embarrass themselves by giving their own erroneous interpretations of this supreme law of the land," he said.

He said that the substance of this case is that Article 4(1) of the Federal Constitution is the overriding provision, and not Article 3(1).

The plaintiffs Muhamad Juzaili bin Mohd Khamis,  Shukur bin Jani, Wan Fairol bin Wan Ismail and Adam Shazrul bin Mohd Yusoff were suing the State Government of Negeri Sembilan, the Department of Islamic Religious Affairs,  the Director of Islamic Religious Affairs,  the Chief Enforcement Officer, Islamic Religious Affairs, and the Chief Syarie Prosecutor, all of  Negeri Sembilan.

The High Court of Seremban had dismissed their application for a judicial review , hence the present appeal to CoA.

The application for judicial review is for a declaration that section 66 of the Syariah Criminal Enactment 1992 (Negeri Sembilan) (“section 66”) is void by reason of being inconsistent with the following Articles of the Federal Constitution, namely, –

(a) Art. 5(1);

(b) Art. 8(1);

(c) Art. 8(2);

(d) Art. 9(2); and

(e) Art. 10(1)(a).

The  appellants or plaintiffs 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 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  makeups. Indeed, they feel natural being such.

That the appellants are sufferers of GID is confirmed by a psychiatrist from the Kuala Lumpur Hospital; as well as by a psychologist. The evidence of these experts remains unrebutted.

In 1992 the legislature of the State of Negeri Sembilan enacted the Syariah Criminal Enactment 1992 (Negeri Sembilan). 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 RM1,000.00 or to imprisonment for a term not exceeding six months or to both. This section makes no exception for sufferers of GID like the appellants. No explanation has been given by the State for this unfortunate omission.

Hence, as a consequence, the appellants have been repeatedly detained, arrested, and prosecuted by the religious authority of Negeri Sembilan acting pursuant to section 66 for cross-dressing.

The injustice and humiliation that they are subject to moved them to apply to the Court for this declaration.

Their application involves the interpretation of the Federal Constitution, that only the superior civil courts established under Part IX (The Judiciary) of the Federal Constitution have the jurisdiction to determine disputes on the interpretation of the provisions of the Federal Constitution.