Case Summary and Outcome

The Federal Court of Malaysia addressed a case involving Muhamad Juzaili Bin Mohd Khamis, Shukur Bin Jani, and Wan Fairol Bin Wan Ismail, three individuals diagnosed with Gender Identity Disorder, who challenged the constitutionality of Section 66 of the Negeri Sembilan Syariah Criminal Enactment 1992. This provision prohibited men from wearing women’s attire in public places. The Court of Appeal had previously declared Section 66 unconstitutional, citing violations of several articles of the Federal Constitution. However, the Federal Court overturned this decision, ruling that challenges to the validity or constitutionality of state legislation must follow specific procedural requirements and cannot be made through collateral attack in judicial review proceedings without leave from a Federal Court judge. Since the Respondents failed to follow this procedure, the Court deemed the judicial review action incompetent and allowed the appeal solely on grounds of procedural non-compliance.

Facts

Muhamad Juzaili Bin Mohd Khamis, Shukur Bin Jani, and Wan Fairol Bin Wan Ismail, the three Respondents, are Muslim men who expressed themselves as women by wearing clothes (associated with femininity) and applying makeup. According to the Court’s understanding of the case, the Respondents are diagnosed with a medical condition known as Gender Identity Disorder (‘Gender Dysphoria’). 

Earlier, in 1992 the State Legislature of Negeri Sembilan enacted the Syariah Criminal Enactment 1992 (Negeri Sembilan). Section 66 states that “Any male person who, in any public place wears a woman’s attire or poses as a woman shall be guilty of an offense and shall be liable on conviction to a fine not exceeding 1000 ringgit or to imprisonment for a term not exceeding six months or to both”

Three Respondents were subjected to harassment and arrest by the Islamic Enforcement officers. The Respondents had filed an application for Judicial Review before the High Court of Negeri Sembilan substantively seeking a declaration that Section 66 of the Syariah Criminal Enactment 1992 of Negeri Sembilan (Enactment) was unconstitutional.

On November 4, 2011, the Respondents were granted leave to file an application for Judicial Review by the Seremban High Court. The Respondent sought several reliefs, including a declaration that Section 66 was incompatible with fundamental rights and liberties of the Federal Constitution and therefore void. Alternatively, they requested a declaration that Section 66 should not apply to individuals identified as psychological women or diagnosed with Gender Identity Disorder. Another alternative relief sought was a prohibition or revision order against the Chief Religious Enforcement Officer and Chief Syarie Prosecutor of Negeri Sembilan, restraining them from pursuing investigations under Section 66 against the respondents or others presenting evidence of psychological femininity or Gender Identity Disorder.

On October 11, 2012, the High Court dismissed the Judicial Review Application. The Respondents filed an Appeal before the Court of Appeal. 

On January 2, 2015, the Court of Appeal allowed the Appeal and held that Section 66 of the Syariah Criminal Enactment 1992 is unconstitutional. Justice Hishamudin Mohd. Yunus, Aziah Ali, and Lim Yee Lan delivered the decision. In its decision, the Court of Appeal found Section 66 of the Negeri Sembilan Syariah Criminal Enactment to be inconsistent with several provisions of the Federal Constitution. The Court held that Section 66 violated Article 5(1) by depriving individuals, including the appellants who suffered from Gender Identity Disorder, of their right to live with dignity. The provision effectively prohibited them from moving in public places to reach their workplaces, thus impacting their livelihood and quality of life. [paras. 44, 46, 48, 50] 

Furthermore, the Court ruled that Section 66’s inclusion of persons suffering from Gender Identity Disorder under its prohibition discriminated against them, contravening Article 8(1) of the Constitution (para 54). The provision was also found to be discriminatory on the grounds of gender, violating Article 8(2) as it treated male Muslim persons differently from female Muslim persons (paras 58, 59). Additionally, the Court held that Section 66 infringed upon the appellants’ freedom of expression under Article 10(1)(a), as it criminalized their choice of attire, which is considered a form of expression. [paras. 73, 75, 76] Ultimately, the Court of Appeal declared Section 66 of the Enactment to be unconstitutional and invalid, as it was inconsistent with Articles 5(1), 8(1) and (2), 9(2), and 10(1)(a) of the Constitution. The decision emphasized that all State laws, including Islamic laws, must be consistent with the Constitution, which guarantees the fundamental liberties of all Malaysians [paras. 32, 34, 94].

The Negeri Sembilan’s State Government, Department of  Islamic Religious Affairs, Negeri Sembilan, Director of Islamic Religious Affairs, Negeri Sembilan, Chief Enforcement Officer, Islamic Religious Affairs, Negeri Sembilan and Chief Syarie Prosecutor, Negeri Sembilan filed an Appeal before the Federal Court of Malaysia. At the same time, the Majilis Agama Islam Negeri Sembilan, together with Majlis Agama Islam Wilayah Persekutuan, Majlis Agama Islam dan Adat Melayu Perak, Majlis Agama Islam Negeri Pulau Pinang, Majlis Agama Islam Negeri Johor, filed an application seeking leave to intervene.

Decision Overview

Justice Raus Sharif, Justice Ahmad Maarop, Justice Hasan Lah, Justice Azahar Mohamed, and Justice Zaharah Ibrahim delivered the decision. The primary question before the Court was to determine whether Section 66 of the Syariah Criminal Enactment (Negeri Sembilan) 1992 contravenes Article 5(1), 8(2), 9(2), and 10(1)(a)of the Federal Constitution of Malaysia. 

However, the Court held that before addressing the issue, the fundamental question was weather the validity or constitutionality of Section 66 could be challenged in the High Court by way of a collateral attack in a judicial review proceeding? [para. 21]

The Federal Court referred to the case of Titular Roman Catholic Archbishop of Kuala Lumpur v Menteri Dalam Negeri, (2014) wherein the Federal Court had held that the validity or constitutionality of laws cannot be questioned through collateral attack in a judicial review proceeding. The Federal Court emphasized that while challenging the imposition of conditions by the Minister, it was permissible to challenge the constitutionality of the relevant State Enactment, specifically Section 9, which prohibited non-Muslims from using the word ‘Allah’ except by quotation or reference. The High Court, in its decision, interpreted Section 9 in conjunction with Article 11(4) of the Federal Constitution, highlighting that the restriction aimed to protect propagation to persons of the Islamic faith. It was determined that challenging the constitutionality of the Enactment on the grounds of infringement of fundamental liberties under Articles 3, 10, 11, and 12 of the Federal Constitution could be pursued through collateral attack in the judicial review proceedings. [para. 22]  The Court of Appeal overturned the decision of the High Court, prompting the applicant to seek leave to appeal to the Federal Court.  Chief Justice Arifin Zakaria, in delivering the majority judgment, highlighted that the High Court’s finding rendered the impugned provision null and void, contending that it exceeded the scope of Article 11(4) of the Federal Constitution. However, Arifin Zakaria emphasized that challenges to the validity or constitutionality of laws cannot be made through collateral attack, as per the specific procedure outlined in Articles 4(3) and 4(4) of the Federal Constitution. The Federal Court majority upheld this stance, underscoring that such challenges must adhere to the prescribed procedural requirements and cannot be pursued through judicial review proceedings in the absence of leave from a Federal Court judge. [para. 23-25]

Considering the above position, the Federal Court determined that the application for declarations sought by the Respondents through judicial review was essentially a challenge to the legislative powers of the State Legislature of Negeri Sembilan. The Respondents contended that legislation concerning Islamic law passed by the State Legislature must align with the fundamental liberties enshrined in various articles of the Federal Constitution. However, the Federal Court emphasized that any challenge to the validity or constitutionality of state legislation must adhere to the specific procedural requirements outlined in Articles 4(3) and 4(4) of the Federal Constitution. Since the Respondents failed to follow this procedure, the Court of Appeal and the High Court erred in entertaining the application, as they lacked jurisdiction to adjudicate on the matter. [para. 26-28]

Consequently, the Federal Court allowed the appeal solely on the grounds of procedural non-compliance and declared the judicial review action as incompetent. [para. 29]