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| Islam sangat menentang keras lelaki yang berpakaian seperti wanita; dan wanita yang berpakaian seperti lelaki; mereka termasuk golongan yang dilaknat Allah! |
Salam 2 all.
Sebenarnya pendirian tegas Islam dalam isu maknyah, bapuk dan pondan berpakaian seperti perempuan turut dikongsi didalam Bibel, yang menyatakan dengan jelas:
Deuteronomy 22:5
- A woman must not wear men's clothing, nor a man wear women's
clothing, for the Lord of God detest anyone who does this" (New
International Version Bible page 296).
Ayat ini telah diterjemahkan seperti berikut:
Ulangan 22:5 -
Orang perempuan tak boleh berpakaian seperti laki-laki dan orang
laki-laki tidak boleh berpakaian seperti perempuan, sebab orang yang
berbuat begitu dibenci Tuhan..." (Al-kitab mukasurat 267).
Pendirian Islam dalam isu maknyah, bapuk atau pondan, atau lelaki berpakaian perempuan atau perempuan berpakaian lelaki sangat jelas. Mereka termasuk golongan yang dilaknat Allah.
Sabda Rasulullah SAW :
عن ابن عباس رضي الله عنهما قال : لعن النبي صلى الله عليه وسلم المخنثين من الرجال ، المترجلات من النساء
Maksudnya : Daripada Ibn Anas r.a berkata Rasulullah SAW melaknat
mereka yang menyerupai wanita daripada kalangan lelaki dan mereka yang
menyerupai lelaki daripada kalangan wanita
(HR Al-Bukhari).
Seksyen 66 Enakmen Jenayah Syariah Negeri Sembilan sekadar menterjemahkan pendirian Islam itu dengan suatu peruntukkan iaitu:
“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 dikenakan hukuman denda
tidak melebihi satu ribu ringgit atau penjara selama tempoh tidak
melebihi enam bulan atau kedua-duanya".
Dan pendirian tegas Islam ini bersesuaian dengan pendirian Pertubuhan Kesihatan Sedunia yang jelas mengklasifikasikan kes maknyah, bapuk atau pondan berpakaian seperti perempuan ini sebagai satu penyakit mental, sebagaimana yang dinyatakan seperti berikut:
"Klasifikasi penyakit World
Health Organisation (WHO) yang disebut sebagai ICD (International
Classification of Diseases) yang kini dalam versi ICD-10. ICD ini
merupakan rujukan asas diagnostik untuk epidemiologi, pengurusan
kesihatan dan juga bagi tujuan klinikal.
Menurut ICD-10, lelaki yang berpakaian
perempuan diklasifikasikan di bawah F64. Ia termasuk F64.0 –
Transsexualism dan F64.1 – Dual-role transvestism … dalam bahasa
mudahnya kita sebut MAKNYAH atau PONDAN.
Di bawah klasifikasi F64, F65 dan F66, terdapat pelbagai jenis
penyakit seksual seperti ini yang diklasifikasikan sebagai penyakit-penyakit mental" (sumber daripada www.akarimomar.wordpress.com).
Apa yang saya musykilkan ialah, kenapa pihak gereja dan para pendakyah kristian kelihatan membisu dalam isu keputusan Mahkamah Rayuan didalam kes Juzaili dll membabitkan pembatalan Seksyen 66 EJSNS kononnya atas alasan Juzaili dan rakan-rakanya mempunyai hak asasi untuk memakai pakaian seperti perempuan walaupun hakikatnya mereka lelaki!
Bukankah tindakan Juzaili memakai pakaian perempuan itu melanggar Bibel yang menjadi pegangan penganut kristian juga? Penganut kristian yang mengikut Bibel sepatutnya bersama dengan umat Islam dalam menentang kemungkaran ini!
Saya mohon pencerahan daripada penganut kristian mengenai
Deuteronomy 22:5 ini!
Apa pun saya teringat ayat Al-Quran yang memberi peringatan kepada kita mengenai kaum yang menjadikan rahib dan pendeta mereka sebagai penyembahan! Apakah yang dimaksudkan 'mempertuhankan" rahib & pendeta ini'?
At-Taubah: Dan mereka menjadikan rahib-rahib dan pendita mereka sebagai tuhan selain Allah".
Apabila disanggah oleh seorang penganut kristian bernama Adi bin Hatim (yang kemdiannya memeluk Islam radhiyallah hu'anhu) bahawa penganut kristian tidak menjadikan pendeta dan rahib mereka sebagai tuhan, lalu Rasulullah saw bersabda;
"Bukankah mereka mengharamkan apa yang Allah halalkan kemudian kalian ikut mengharamkannya; dan mereka menghalalkan apa yang Allah haramkan kemudian kalian ikut menghalalkannya?". Lalu jawab Adi Bin Hatim, "Ya benar". Lalu Rasulullah saw bersabda, "Itulah bentuk peribadatan (penyembahan) kepada mereka (para rahib dan pendita)" (hadis riwayat Ahmad & Tirmidhi).
Allah mengharamkan lelaki berpakaian perempuan, Nabi turut mengharamkan lelaki berpakain perempuan; dan kita umat Islam turut mengharamkannya!
Bibel mengharamkan lelaki berpakain perempuan, jadi penganut agama kristian wajib sama menyokong umat Islam mengharamkan apa yang bibel mereka haramkan!
Semoga Allah menjauhkan kita daripada fitnah akhir zaman ini, ameen!!!
Wallahua'lam dan wassalam.
Adios amigos, grasias senor!
Zulkifli Bin Noordin
Isnin
25 Muharram 1436
17 November 2014
NOVEMBER
17 — Somewhere along the line, the civil courts would have to stop
niggling away at the syariah courts. So does the civil common law at the
Islamic law. These courts and laws are not meant to engage in a power
struggle against each other; they are meant to complement each other.
The constitutional provision is clear. Article 121(1A) provides for a
dual legal system, wherein the civil or secular law goes hand in hand
with the Islamic law. The implication of which is that secular law
cannot be used to modify syariah law — although the former is within the
federal list, while the latter the state list — neither could the civil
courts intervene in matters that fall within the jurisdiction of the
syariah courts. To do so would be an affront to the very structure of
our legal system. These are basics, of which even first-year law
students are expected to know, what more judges of the Court of Appeal.
Alleged unconstitutionalities
Notwithstanding Article 121(1A), however, Article 4(1) of the Federal
Constitution on the other hand provides that the constitution is
supreme, and as such any law which is inconsistent with its provisions
would very much be opened for challenge. The courts, therefore, have the
power to declare any law unconstitutional to the extent of its
inconsistency with the constitution. And this, the Court of Appeal
verily did, in its recent judgment on transgender and cross-dressing,
wherein the three panel judges who sat and heard Muhamad Juzaili bin
Mohd Khamis & 2 Ors v State Government of Negri Sembilan & 4 Ors
unanimously held that section 66 of the Syariah Criminal Enactment 1992
(Negeri Sembilan) criminalising cross-dressing of any male person
wearing a woman’s attire in public, as void for supposedly being
inconsistent with Articles 5(1), 8(1), 8(2), 9(2) and 10(1)(a) of the
Federal Constitution.
The gist of the Court of Appeal’s reasoning could be summarised, inter
alia, (i) that the competence of the State Legislature of Negri Sembilan
on matters pertaining to the religion of Islam extends only insofar as
to any conditions or restrictions imposed by the Federal Constitution;
and (ii) that the State Legislative Assemblies in Malaysia including the
State legislature of Negri Sembilan have no power to restrict freedom
of speech and expression (and cross-dressing falls within such
definition of expression). In other words, the Court is saying that the
Negri Sembilan State Legislature went beyond its constitutional power in
enacting such law as section 66 of the Enactment.
Fatal procedural non-compliance
Reading through the brief written judgment (the full written grounds of
which has yet to be made public at the time of writing this piece), one
could not help but wonder as to whether the Court of Appeal judges had
fatally erred in entertaining such challenge to the constitutionality of
the said provision in the State Enactment, especially in light of
specific mandatory procedure in clauses (3) and (4) of Article 4 of the
Federal Constitution, which seems, based from the brief written
judgment, to have been overlooked and not been complied with.
Clauses (3) and (4) thereof provides that a party seeking to challenge
the validity or constitutionality of any law can only do so in a
proceeding which may only be commenced with leave of a Judge of the
Federal Court. The key word here is that the leave must be from a judge
of the Federal Court. It could not come from any judge of any lower
rank. But a perusal of the brief judgment reveals that the leave for
judicial review for this case, which was granted on November 4, 2011,
was given not by a judge of the Federal Court, but rather by Rosnaini
Saub J, who is a High Court judge. Therefore, clearly the leave granted
was bad in law, for the learned judge was in no position to grant such
leave, and as such the whole proceeding null and void; and likewise the
whole appeal should have crumbled and fall at its very first instance.
The operation and rationale of such mandatory procedural requirement
came into consideration by the Federal Court in 1976 and was explained
in Ah Thian v Government of Malaysia. There, Suffian LP even went
further by holding that clause (1) of Article 128 of the Federal
Constitution further “provides that only the Federal Court has
jurisdiction to determine whether a law made by … State legislature is
invalid on the ground that it relates to a matter with respect to which
the relevant legislature has no power to make law. This jurisdiction is
exclusive to the Federal Court, no other court has it. This is to ensure
that a law may be declared invalid on this very serious ground only
after full consideration by the highest court in land.”
Of course, one could argue, that be that as it may, the matter would
still in any event be heard by judges of the Federal Court, once it is
appealed to the Federal Court. But this would be putting the cart before
the horse, for how could the matter be allowed to be heard when the
leave to hear the matter has not even been properly granted as yet?
Suffice to say that this is such a fatal error which goes to the very
foundation, and in the absence of which, the Court of Appeal should have
just summarily dismissed the appeal for want of proper leave and due
process.
Substantive constitutional issues
Moving on from the procedural aspect to the more substantive issues,
looking at the Malaysian legal system as a whole, it must be admitted
that syariah law plays a relatively small role in defining the laws of
the country. For it only applies to Muslims. With regard to civil law,
the syariah courts have jurisdiction in matters of personal law, such
as marriage and inheritance. In some States, there are syariah criminal
laws, such as the Kelantan Syariah Criminal Code Enactment 1993, and of
course, the Syariah Criminal Enactment 1992 (Negri Sembilan)
. Their jurisdiction is however limited to imposing fines for an amount not more than
RM5,000, imprisonment of not more than three years, and whipping of not more than six strokes.
The fundamental Islamic position is that Islamic law should not be
subservient to secular law. This principle must be read in the context
of Article 3(1) of the Federal Constitution, which puts Islam on a very
high pedestal by declaring it the religion of the Federation. This in
itself is not an allowable position for a secular government to take.
But like it or not, this is exactly the position that the framers of our
constitution had intended it to be. So now we are engaged in the
process of deciding to what extent does this role of Islam in the
Federal Constitution implies that Islamic law may NOT be lightly
disregarded; and to what extent does it apply to persons professing the
religion of Islam?
The Federal Court in 2005 had actually settled this. In Lina Joy v
Majlis Agama Islam Wilayah Persekutuan & Ors, it was held 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, private or
public, legal, political, economic, social, cultural, moral or
judicial.” On top of such broad finding by the Federal Court, the Court
of Appeal in the recent case of
The Herald, had also gone
further to hold that the position of Islam as the religion of the
Federation is not merely ceremonial in nature, but rather it imposes
obligations on the power that be to promote Islam, citing with approval
an article by Muhammad Imam entitled
Freedom of Religion under Federal Constitution of Malaysia – A Reappraisal,
that “Article 3 is not a mere declaration. But it imposes positive
obligation on the Federation … to give effect by appropriate state
action, to the injunction of Islam and able to facilitate and encourage
people to hold their life according to the Islamic injunction spiritual
and daily life.”
It is in such light that one finds it difficult if not almost
impossible to reconcile the Court of Appeal’s recent decision in
excusing its appellants from criminal punishment based on the
supposition that they suffer “Gender Identity Disorder”, a medical
condition, as testified by various psychiatrists and other social
experts. The court insists that because of such psychiatric condition,
therefore, they have “human rights” that must be protected, even though
they publicly and emphatically, as Muslims, practise non-Islamic
behaviour. This is an impossible situation.
Muslims excused from
normal criminal punishment due to medical designations must at the very
least be confined to treatment centres where their un-Islamic behaviour
can be corrected by medical means. If such means are not readily
available, they must be developed with all possible haste by the social
experts who put the miscreants in such facilities.
It is pertinent to point out that the American position seems to be
directly in contrast with our position here. While our Court of Appeal
judges who declared section 66 of the Syariah Criminal (Negri Sembilan)
Enactment 1992 against cross-dressing as unconstitutional seem to have
bought “the pity card” played by the appellants in justifying their
unnatural behaviour as symptoms of the medical condition called “GID”,
or “Gender Identity Disorder”, as mentioned above, the Americans,
however, prefer to hold that no such “disorder” exists. In fact the
movement to declassify any form of gender or sexual preferences as
decease had begun since 1973, when the American Psychiatric Association
(APA) declassified unnatural preferences of gays and lesbians as
psychological decease, following intimidation and lobbying from gay
groups and activists, for they consider it demeaning and insulting for
their preferences to be classified as a disease.
While it is noted that the Court of Appeal in its brief judgment
referred to the Diagnostic and Statistical Manual of Mental Disorders,
Fourth Edition (DSM IV-TR) published by APA, where GID is considered a
disease, the fact however is that in its fifth edition, published in
2013, the APA had decided to remove the term GID. Gender behaviour is
now considered a free choice of equally free and mentally healthy
citizens by the Americans.
The inevitable question would of course be is it or is it not a
disease? If courts’ decisions can be made on the basis of a supposed
Gender Identity Disorder which has been declared non-existent by the
American Psychiatric Association, the next question that follows would
be where, then, could religious law fit in? The Al-Qur’an clearly
answers this question in the story of the Prophet Luth and his people.
That answer is, whether the American psychiatrists like it or not,
widespread GID behaviour is an affront to our Creator and will
eventually result in Divine Retribution.
And yet the debate continues. In response to a submission by Iskandar
Ali, State Legal Adviser of Negri Sembilan, which asserts Section 66 “is
not prejudicial to the appellants as they are persons of unsound mind”,
the Court of Appeal Judge Dato’ Hishamuddin Yunus writes, “
n the
absence of medical evidence, it is absurd and insulting to suggest that
the appellants and other transgender [individuals] are persons of
unsound mind”.
On the contrary, the American position can also be argued to place GID
behaviour squarely into the realm of social behaviour that can be
legislated the same as any other overt public behaviour. This is similar
to the challenge mounted by the United Nations Human Rights Council to
Malaysia, which dialogue has not yet reached closure, even though
Malaysia has recently been elected to sit on the Security Council
itself. The United Nations wants to protect all manner of gender
deviance under the protective rubric of “human rights”. And so,
evidently, does our own Court of Appeals judge. And yet, how can this
secular concept of “human rights” simply dismiss almost universal
religious opinion to the contrary?
The decision of the Court of Appeal implies that even so-called Muslim
deviants must enjoy the freedom of behaviour and dress implied by any
constitution, including that of Malaysia. Can we allow this decision to
stand? In fact, the Court of Appeal in reaching such a finding, had
applied and followed, almost in-toto, the decisions of the courts of
foreign countries, namely that of the Indian Supreme Court’s in National
Legal Services Authority v Union of India & Ors, as well as the
United States Supreme Court’s in Tinker v Des Moines Independent
Community School District. This is alarming, especially when such
importations of foreign principles fail to take into consideration the
inherent and irreconcilable differences that exist between our
constitution and the constitutions of those countries, particularly with
respect to the absence of any religion of the federation in the Indian
and United States constitutions, very much unlike ours.
This indeed calls for serious concern, not only for those in the legal
fraternity, but also all Malaysians at large, for it goes contrary to
long-held principle as established by various judicial precedents of our
own courts, that the interpretation of our Federal Constitution must be
free from outside interferences. In 1975, for instance, Raja Azlan Shah
FJ (as the late Royal Highness then was), in giving the judgment of the
Federal Court in Loh Kooi Choon v the Government of Malaysia held that
“our Constitution now stands in its own right and it is in the end the
wording of our Constitution itself that is to be interpreted and
applied, and this wording ‘can never be overridden by the extraneous
principles of other Constitution’.” Further, even prior to that, in
1963, the Federal Court in The Government of Kelantan v The Government
of the Federation of Malaya & Tunku Abdul Rahman Putra al-Haj had
held that our “Constitution is primarily to be interpreted within its
own four walls and not in the light of analogies drawn from other
countries such as Great Britain, the United States of America or
Australia”.
If the syariah law could be dismissed in such a manner by drawing
principles from foreign constitutions, one would shudder to think what
would and could happen to the position of Islam as the religion of the
Federation.
In the light of all of the above, one would have to suggest that the
only way forward would be for the State religious authorities to appeal
to the Federal Court and to all of Malaysia as a sovereign Islamic
political entity to reassert her position at the international level.
Perhaps we need to revisit our position at the Organisation of Islamic
Cooperation (OIC) and recent United Nations reviews and requests.
*Azril Mohd Amin is a lawyer and Executive Director of the Centre
for Human Rights Research and Advocacy (CENTHRA), while Aidil Khalid is a
lawyer and senior fellow of CENTHRA.
- See more at:
http://www.themalaymailonline.com/what-you-think/article/transgender-case-court-of-appeal-error-azril-mohd-amin-and-aidil-khalid#sthash.X1wYoUmZ.dpuf
NOVEMBER
17 — Somewhere along the line, the civil courts would have to stop
niggling away at the syariah courts. So does the civil common law at the
Islamic law. These courts and laws are not meant to engage in a power
struggle against each other; they are meant to complement each other.
The constitutional provision is clear. Article 121(1A) provides for a
dual legal system, wherein the civil or secular law goes hand in hand
with the Islamic law. The implication of which is that secular law
cannot be used to modify syariah law — although the former is within the
federal list, while the latter the state list — neither could the civil
courts intervene in matters that fall within the jurisdiction of the
syariah courts. To do so would be an affront to the very structure of
our legal system. These are basics, of which even first-year law
students are expected to know, what more judges of the Court of Appeal.
Alleged unconstitutionalities
Notwithstanding Article 121(1A), however, Article 4(1) of the Federal
Constitution on the other hand provides that the constitution is
supreme, and as such any law which is inconsistent with its provisions
would very much be opened for challenge. The courts, therefore, have the
power to declare any law unconstitutional to the extent of its
inconsistency with the constitution. And this, the Court of Appeal
verily did, in its recent judgment on transgender and cross-dressing,
wherein the three panel judges who sat and heard Muhamad Juzaili bin
Mohd Khamis & 2 Ors v State Government of Negri Sembilan & 4 Ors
unanimously held that section 66 of the Syariah Criminal Enactment 1992
(Negeri Sembilan) criminalising cross-dressing of any male person
wearing a woman’s attire in public, as void for supposedly being
inconsistent with Articles 5(1), 8(1), 8(2), 9(2) and 10(1)(a) of the
Federal Constitution.
The gist of the Court of Appeal’s reasoning could be summarised, inter
alia, (i) that the competence of the State Legislature of Negri Sembilan
on matters pertaining to the religion of Islam extends only insofar as
to any conditions or restrictions imposed by the Federal Constitution;
and (ii) that the State Legislative Assemblies in Malaysia including the
State legislature of Negri Sembilan have no power to restrict freedom
of speech and expression (and cross-dressing falls within such
definition of expression). In other words, the Court is saying that the
Negri Sembilan State Legislature went beyond its constitutional power in
enacting such law as section 66 of the Enactment.
Fatal procedural non-compliance
Reading through the brief written judgment (the full written grounds of
which has yet to be made public at the time of writing this piece), one
could not help but wonder as to whether the Court of Appeal judges had
fatally erred in entertaining such challenge to the constitutionality of
the said provision in the State Enactment, especially in light of
specific mandatory procedure in clauses (3) and (4) of Article 4 of the
Federal Constitution, which seems, based from the brief written
judgment, to have been overlooked and not been complied with.
Clauses (3) and (4) thereof provides that a party seeking to challenge
the validity or constitutionality of any law can only do so in a
proceeding which may only be commenced with leave of a Judge of the
Federal Court. The key word here is that the leave must be from a judge
of the Federal Court. It could not come from any judge of any lower
rank. But a perusal of the brief judgment reveals that the leave for
judicial review for this case, which was granted on November 4, 2011,
was given not by a judge of the Federal Court, but rather by Rosnaini
Saub J, who is a High Court judge. Therefore, clearly the leave granted
was bad in law, for the learned judge was in no position to grant such
leave, and as such the whole proceeding null and void; and likewise the
whole appeal should have crumbled and fall at its very first instance.
The operation and rationale of such mandatory procedural requirement
came into consideration by the Federal Court in 1976 and was explained
in Ah Thian v Government of Malaysia. There, Suffian LP even went
further by holding that clause (1) of Article 128 of the Federal
Constitution further “provides that only the Federal Court has
jurisdiction to determine whether a law made by … State legislature is
invalid on the ground that it relates to a matter with respect to which
the relevant legislature has no power to make law. This jurisdiction is
exclusive to the Federal Court, no other court has it. This is to ensure
that a law may be declared invalid on this very serious ground only
after full consideration by the highest court in land.”
Of course, one could argue, that be that as it may, the matter would
still in any event be heard by judges of the Federal Court, once it is
appealed to the Federal Court. But this would be putting the cart before
the horse, for how could the matter be allowed to be heard when the
leave to hear the matter has not even been properly granted as yet?
Suffice to say that this is such a fatal error which goes to the very
foundation, and in the absence of which, the Court of Appeal should have
just summarily dismissed the appeal for want of proper leave and due
process.
Substantive constitutional issues
Moving on from the procedural aspect to the more substantive issues,
looking at the Malaysian legal system as a whole, it must be admitted
that syariah law plays a relatively small role in defining the laws of
the country. For it only applies to Muslims. With regard to civil law,
the syariah courts have jurisdiction in matters of personal law, such
as marriage and inheritance. In some States, there are syariah criminal
laws, such as the Kelantan Syariah Criminal Code Enactment 1993, and of
course, the Syariah Criminal Enactment 1992 (Negri Sembilan)
. Their jurisdiction is however limited to imposing fines for an amount not more than
RM5,000, imprisonment of not more than three years, and whipping of not more than six strokes.
The fundamental Islamic position is that Islamic law should not be
subservient to secular law. This principle must be read in the context
of Article 3(1) of the Federal Constitution, which puts Islam on a very
high pedestal by declaring it the religion of the Federation. This in
itself is not an allowable position for a secular government to take.
But like it or not, this is exactly the position that the framers of our
constitution had intended it to be. So now we are engaged in the
process of deciding to what extent does this role of Islam in the
Federal Constitution implies that Islamic law may NOT be lightly
disregarded; and to what extent does it apply to persons professing the
religion of Islam?
The Federal Court in 2005 had actually settled this. In Lina Joy v
Majlis Agama Islam Wilayah Persekutuan & Ors, it was held 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, private or
public, legal, political, economic, social, cultural, moral or
judicial.” On top of such broad finding by the Federal Court, the Court
of Appeal in the recent case of
The Herald, had also gone
further to hold that the position of Islam as the religion of the
Federation is not merely ceremonial in nature, but rather it imposes
obligations on the power that be to promote Islam, citing with approval
an article by Muhammad Imam entitled
Freedom of Religion under Federal Constitution of Malaysia – A Reappraisal,
that “Article 3 is not a mere declaration. But it imposes positive
obligation on the Federation … to give effect by appropriate state
action, to the injunction of Islam and able to facilitate and encourage
people to hold their life according to the Islamic injunction spiritual
and daily life.”
It is in such light that one finds it difficult if not almost
impossible to reconcile the Court of Appeal’s recent decision in
excusing its appellants from criminal punishment based on the
supposition that they suffer “Gender Identity Disorder”, a medical
condition, as testified by various psychiatrists and other social
experts. The court insists that because of such psychiatric condition,
therefore, they have “human rights” that must be protected, even though
they publicly and emphatically, as Muslims, practise non-Islamic
behaviour. This is an impossible situation.
Muslims excused from
normal criminal punishment due to medical designations must at the very
least be confined to treatment centres where their un-Islamic behaviour
can be corrected by medical means. If such means are not readily
available, they must be developed with all possible haste by the social
experts who put the miscreants in such facilities.
It is pertinent to point out that the American position seems to be
directly in contrast with our position here. While our Court of Appeal
judges who declared section 66 of the Syariah Criminal (Negri Sembilan)
Enactment 1992 against cross-dressing as unconstitutional seem to have
bought “the pity card” played by the appellants in justifying their
unnatural behaviour as symptoms of the medical condition called “GID”,
or “Gender Identity Disorder”, as mentioned above, the Americans,
however, prefer to hold that no such “disorder” exists. In fact the
movement to declassify any form of gender or sexual preferences as
decease had begun since 1973, when the American Psychiatric Association
(APA) declassified unnatural preferences of gays and lesbians as
psychological decease, following intimidation and lobbying from gay
groups and activists, for they consider it demeaning and insulting for
their preferences to be classified as a disease.
While it is noted that the Court of Appeal in its brief judgment
referred to the Diagnostic and Statistical Manual of Mental Disorders,
Fourth Edition (DSM IV-TR) published by APA, where GID is considered a
disease, the fact however is that in its fifth edition, published in
2013, the APA had decided to remove the term GID. Gender behaviour is
now considered a free choice of equally free and mentally healthy
citizens by the Americans.
The inevitable question would of course be is it or is it not a
disease? If courts’ decisions can be made on the basis of a supposed
Gender Identity Disorder which has been declared non-existent by the
American Psychiatric Association, the next question that follows would
be where, then, could religious law fit in? The Al-Qur’an clearly
answers this question in the story of the Prophet Luth and his people.
That answer is, whether the American psychiatrists like it or not,
widespread GID behaviour is an affront to our Creator and will
eventually result in Divine Retribution.
And yet the debate continues. In response to a submission by Iskandar
Ali, State Legal Adviser of Negri Sembilan, which asserts Section 66 “is
not prejudicial to the appellants as they are persons of unsound mind”,
the Court of Appeal Judge Dato’ Hishamuddin Yunus writes, “
n the
absence of medical evidence, it is absurd and insulting to suggest that
the appellants and other transgender [individuals] are persons of
unsound mind”.
On the contrary, the American position can also be argued to place GID
behaviour squarely into the realm of social behaviour that can be
legislated the same as any other overt public behaviour. This is similar
to the challenge mounted by the United Nations Human Rights Council to
Malaysia, which dialogue has not yet reached closure, even though
Malaysia has recently been elected to sit on the Security Council
itself. The United Nations wants to protect all manner of gender
deviance under the protective rubric of “human rights”. And so,
evidently, does our own Court of Appeals judge. And yet, how can this
secular concept of “human rights” simply dismiss almost universal
religious opinion to the contrary?
The decision of the Court of Appeal implies that even so-called Muslim
deviants must enjoy the freedom of behaviour and dress implied by any
constitution, including that of Malaysia. Can we allow this decision to
stand? In fact, the Court of Appeal in reaching such a finding, had
applied and followed, almost in-toto, the decisions of the courts of
foreign countries, namely that of the Indian Supreme Court’s in National
Legal Services Authority v Union of India & Ors, as well as the
United States Supreme Court’s in Tinker v Des Moines Independent
Community School District. This is alarming, especially when such
importations of foreign principles fail to take into consideration the
inherent and irreconcilable differences that exist between our
constitution and the constitutions of those countries, particularly with
respect to the absence of any religion of the federation in the Indian
and United States constitutions, very much unlike ours.
This indeed calls for serious concern, not only for those in the legal
fraternity, but also all Malaysians at large, for it goes contrary to
long-held principle as established by various judicial precedents of our
own courts, that the interpretation of our Federal Constitution must be
free from outside interferences. In 1975, for instance, Raja Azlan Shah
FJ (as the late Royal Highness then was), in giving the judgment of the
Federal Court in Loh Kooi Choon v the Government of Malaysia held that
“our Constitution now stands in its own right and it is in the end the
wording of our Constitution itself that is to be interpreted and
applied, and this wording ‘can never be overridden by the extraneous
principles of other Constitution’.” Further, even prior to that, in
1963, the Federal Court in The Government of Kelantan v The Government
of the Federation of Malaya & Tunku Abdul Rahman Putra al-Haj had
held that our “Constitution is primarily to be interpreted within its
own four walls and not in the light of analogies drawn from other
countries such as Great Britain, the United States of America or
Australia”.
If the syariah law could be dismissed in such a manner by drawing
principles from foreign constitutions, one would shudder to think what
would and could happen to the position of Islam as the religion of the
Federation.
In the light of all of the above, one would have to suggest that the
only way forward would be for the State religious authorities to appeal
to the Federal Court and to all of Malaysia as a sovereign Islamic
political entity to reassert her position at the international level.
Perhaps we need to revisit our position at the Organisation of Islamic
Cooperation (OIC) and recent United Nations reviews and requests.
*Azril Mohd Amin is a lawyer and Executive Director of the Centre
for Human Rights Research and Advocacy (CENTHRA), while Aidil Khalid is a
lawyer and senior fellow of CENTHRA.
- See more at:
http://www.themalaymailonline.com/what-you-think/article/transgender-case-court-of-appeal-error-azril-mohd-amin-and-aidil-khalid#sthash.X1wYoUmZ.dpuf
