Constitutional review of Section 66 of the Negeri Sembilan state Syariah Enactment
Constitutional review of Section 66 of the Negeri Sembilan state Syariah Enactment
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Constitutional review of Section 66 of the Negeri Sembilan state Syariah Enactment
Discrimination and Violence
Freedom of Expression
February 21, 2025
In 2010, four transgender women were arrested and charged under Section 66 of the Syariah Criminal (Negri Sembilan) Enactment 1992, which criminalises any man who dresses or poses as a woman. The transgender women faced battery, sexual molestation and degrading treatment while in custody and during the arrest.
In 2011, the four transgender women contended Section 66 on grounds that it restricts their right to freedom of expression and is therefore unconstitutional.
Section 66 violates:
- Article 5(1) of the federal constitution, which enshrines the right to personal liberty.
- Article 8(2), states that “…there shall be no discrimination against citizens on the grounds only of religion, race, descent, place of birth or gender in any law…”
- Article 9(2), which enshrines the right of every citizen to move freely throughout Malaysia.
- Article 10(1)(a), which states that every citizen has the right to freedom of expression.
- Article 4(1), which declares void any law that is inconsistent with the federal constitution.
Following the Federal Court decision, in the Alma Nudo Atenza case a panel of Federal Court judges said there were errors in the Federal Court decision on the Section 66 case. The judges said:
“[60] These two cases suggest that a challenge to the constitutionality or validity of a law on any ground comes within the ambit of art. 4(3) and (4). With respect, we are of the view that the wide interpretation adopted is contrary to the clear wordings of the aforesaid articles and is not supported by any consistent line of authorities…. We are therefore not inclined to follow these two cases. In our view, they were decided per incuriam.” (through lack of care, mistake)
“[59] The decision in Titular Roman Catholic Archbishop of Kuala Lumpur (supra) was followed in State Government of Negeri Sembilan & Ors v. Muhammad Juzaili Mohd Khamis & Ors … where the validity of a State Enactment was challenged on the ground that it offended the fundamental liberties in Articles 5, 8, 9 and 10 of the Federal Constitution. Similarly, the Federal Court held that the challenge could only be made via the specific procedure provided for under Articles 4(3) and (4) of the Federal Constitution.”
Based on these remarks, in 2020, the trans women filed another application to review the 2015 Federal Court ruling and declare Section 66 unconstitutional. However, the application was not successful.
Timeline
February 2, 2011
Judicial review or Constitutional Review Application was filed
October 11, 2012
Seremban High Court held that Section 66 is consistent with the Federal Constitution
May 22, 2014
First hearing at the Court of Appeal
November 7, 2014
Justice Mohd Hishamudin Mohd Yunus, Justice Aziah Ali and Justice Lim Yee Lan declared Section 66 of the Negeri Sembilan Syariah Enactment as inconsistent with Article 5(1), 8(1), 8(2), 9(2) and 10 (1)(a), and is therefore void.
January 27, 2015
The Federal Court granted leave to Negeri Sembilan to appeal the Court of Appeal’s decision and for the Islamic Religious Council of Negeri Sembilan to intervene.
Federal Court framed the question of “whether Section 66 of the Syariah Enactment 1992 (Enactment 4 of 1992) of Negeri Sembilan contravenes Articles 5(1), 8(1), 8(2), 9(2) and 10 (1)(a) of the Federal Constitution.”
October 8, 2015
The Federal Court dismissed the case on technical grounds and set aside the two orders by the Negeri Sembilan High Court and Court of Appeal to hear the application.
The Federal Court was of the view that trans women should have sought permission (leave) of the Federal Court before instituting their constitutional review for breach of their fundamental rights.
2020
Another review was filed based on Alma Nudo Atenza’s decision. However, they were unsuccessful.